Finau v Minister for Immigration, Citizenship and Multicultural Affairs

INTRODUCTION 1 The applicant, Mr Hafez Phillip Diploma Finau, is a New Zealand national. 2 On 4 May 2023, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs decided not to revoke the mandatory cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa on character grounds. The visa had been granted on 13 March 2004. On 28 July 2023, the second respondent, the Administrative Appeals Tribunal, affirmed the delegate's decision. 3 By his further amended originating application, (the application) the applicant seeks judicial review under s 476A of the Migration Act 1958 (Cth) of the Tribunal's decision. Relevantly, s 476A(1)(b) provides that the Federal Court has original jurisdiction in relation to a "privative clause decision" (or a "purported private clause" decision), which is relevantly defined to include administrative decisions made by the Tribunal on review under s 500: see ss 474(2) and 476A(1)(b). The Minister did not oppose the grant of leave to file and serve the further amended originating application and I granted leave at the hearing. 4 The grounds on which the applicant alleged that the Tribunal fell into jurisdictional error are put in the alternative and may be summarised as follows. (1) The Minister failed to address the precondition in s 501CA(4)(b)(ii) of the Migration Act and instead approached its task as one of re-exercising a general discretion having regard to the considerations in Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99) made under s 499 (Ground 1). (2) The Tribunal failed to comply with the requirements of procedural fairness in: (a) failing to advise the applicant of its practice and procedures with respect to seeking an adjournment so as to allow the applicant's siblings time to provide statements in support of his application (Ground 2(a)); (b) making a finding contrary to the applicant's evidence of his close relationship with his siblings in circumstances where the basis for that factual finding was not put to the applicant (Ground 2(b)); and as a result, the applicant suffered practical injustice (Ground 3). (3) Item 4 of Part 2 to Schedule 1 to the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act) is contrary to s 51(xxxi) of the Constitution and invalid (Ground 4). The Amending Act effectively reversed with retrospective effect, the decision in Pearson v Minister for Home Affairs (2022) 295 FCR 177 (Pearson (FCAFC)) delivered on 22 December 2022. In Pearson (FCAFC), the Full Court held that an aggregate term of imprisonment was not a "term of imprisonment" for the purposes of s 501(7)(c) of the Migration Act. 5 Notice was given of the constitutional issue raised by ground 4 in accordance with s 78B of the Judiciary Act 1903 (Cth). None of the Attorneys-General intervened. 6 At the time of the hearing of the judicial review application, the decisions in Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 167; (2023) 300 FCR 354 (Tapiki (FCAFC)), upholding the validity of the Amending Act, and in Pearson (FCAFC) were on appeal to the High Court. Subsequently, on 4 December 2024 the High Court delivered judgment on the appeals and related matters in Pearson v Commonwealth [2024] HCA 46 (Pearson (HCA)). The High Court held that the Full Court in Pearson (FCAFC) had erred in construing s 501(7)(c) of the Migration Act 1958 (Cth) so as to exclude aggregate sentences of 12 months or more from its scope. Accordingly, there was no work for the Amending Act to do and the High Court held that the constitutional validity of the Act did not arise: at [62]. As a result, ground 4 on this application cannot succeed and need not be further considered. 7 Nor has the applicant established grounds 1 or 2(b). However, in my view, the applicant has established grounds 2(a) and 3, and the application must therefore be allowed.

BACKGROUND 8 The applicant is a New Zealand national born in 1986. The applicant arrived in Australia in April 2004 shortly before his 18th birthday and has resided here for over 20 years. He has a number of family members, including five siblings, who live in Australia. 9 The applicant has an extensive criminal history between 2008 and 2022 including multiple convictions for domestic violence, contravening Apprehended Domestic Violence Orders and drug possession offences. 10 The applicant's visa was cancelled by a delegate of the Minister on 19 May 2022 under s 501(3A) of the Migration Act on the basis that he did not pass the character test in s 501(6)(a) of the Act and was serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a State law. The cancellation followed the applicant's conviction on 25 March 2022 in relation to several offences, including Apprehended Domestic Violence Orders and common assault for which he was sentenced to an aggregate of 12 months imprisonment. The applicant was notified of the mandatory cancellation and invited to make representations as to why the decision should be revoked. 11 On 23 October 2022, the applicant was taken into immigration detention. The applicant was detained at the time the decision of the Full Federal Court in Pearson (FCAFC) was handed down on 22 December 2022. On 30 December 2022 and as a result of that decision, the applicant was released from immigration detention. 12 On 17 February 2023, the Amending Act commenced. As earlier mentioned, provisions of the Amending Act effectively reversed the decision in Pearson (FCAFC) and, as a consequence, the applicant was taken back into immigration detention on 18 April 2023, where he has remained. 13 On 4 May 2023, a delegate of the Minister refused to revoke the mandatory cancellation. On 12 May 2023, the applicant applied to the AAT for review of the delegate's refusal to revoke the cancellation. The application was heard on 17 July 2023. The applicant gave oral evidence in support of his application before the Tribunal, including that he had a close relationship with his siblings in Australia and was in regular contact with them. On 28 July 2023, the AAT affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa.

THE TRIBUNAL'S DECISION 14 First, the Tribunal found that the delegate's decision was not invalid by reason of the delegate having found that the applicant failed the character test by reference to an aggregate sentence of 12 months imprisonment: Tribunal's reasons (TR) at [12]-[13]. As the Tribunal found, while the Full Court in Pearson (FCAFC) had held that an "aggregate sentence" was not a term of imprisonment of 12 months or more for the purposes of s 501(7)(c), the Parliament had subsequently passed the Amending Act. It found as a result, that the delegate's decision was taken for all purposes to be valid and to have always been valid (citing Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18 at [54] (the Court)). 15 Secondly, the Tribunal found that the applicant has a "substantial criminal record" for the purposes of s 501(6) of the Migration Act and, therefore, he did not pass the character test as defined in subs (6) and the requirements of s 501CA(4)(b)(i) were not met: TR at [17]. The Tribunal found that the applicant had made the representations required by s 501CA(4)(a): TR at [10]. Accordingly, the decision before the Tribunal was whether the discretion to revoke the mandatory cancellation of the applicant's visa may be exercised. 16 Relevantly, s 501(6)(a) states that a person does not pass the character test if they have a substantial criminal record, as defined in s 501(7). In turn, s 501(7)(c) provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. 17 Thirdly, as the requirements of s 501CA(4)(b)(i) were not satisfied, the Tribunal correctly found that it must consider whether there was another reason to revoke the visa cancellation: TR at [17]. In considering whether it ought to exercise its power to revoke the visa cancellation, the Tribunal acknowledged it was bound to comply with Direction 99: TR at [18]. 18 In the fourth place and of particular relevance to the judicial review application, the Tribunal outlined the evidence before setting out the applicant's early life, including referring to the duration of his life in Australia and his claims to have "good relationships with his older sister especially and other siblings who reside variously in Victoria, Queensland and Sydney, as well as his nieces and nephews": TR at [27]. However, the Tribunal found that no evidence was provided by the applicant's siblings or other family members about their relationship with the applicant and "[t]he only information the Tribunal has about these matters was provided by the Applicant in his handwritten forms completed for the Department and his oral testimony at the Tribunal's hearing": TR at [27]. 19 Fifthly, the Tribunal set out in detail the applicant's criminal history (TR at [28]-[44]), before summarising the applicant's and Minister's contentions. While the applicant did not make any written submissions or statement to the Tribunal, the Tribunal referred to his previous written representations to the delegate and his oral evidence before the Tribunal (at [46]). Its reasons refer to the applicant in summary submitting that "he is rehabilitated, drug free and motivated to make a contribution to Australia both through his employment and through supporting his family". 20 The Tribunal then turned to consider the primary considerations specified by Direction 99. 21 In considering the protection of the Australian community (Primary Consideration 1), the Tribunal found that the applicant's criminal conduct is "objectively serious" and that he has demonstrated "a concerning disregard for the law, with multiple violent offences, including domestic violence and violence against women, along with multiple contraventions of apprehended violence orders": TR at [68]. The Tribunal found that the applicant's offending was "very serious": TR at [73]. With respect to the question of recidivism, the Tribunal was not satisfied that the applicant would not reoffend and considered that the risk of reoffending remains, with potentially "very serious" harm to individuals and/or the Australian community should he reoffend: TR at [95]-[96]. Having regard to the "very serious" nature of the offending, and the "serious" risk of recidivism, the Tribunal found that the protection of the Australian community weighed "very heavily against the revocation of the cancellation of the Applicant's visa": TR at [97]-[98]. 22 In considering family violence (Primary Consideration 2), the Tribunal found that the applicant had been convicted of five family violence offences, involving physical assault, violence against women, wanton property damage, and various threats and intimidating behaviour: TR at [103]. The Tribunal also found that there was "a trend of the conduct representing family violence as occurring more frequently and of increasing seriousness": TR at [104]. The Tribunal weighed this consideration "very heavily" against the revocation of the cancellation of the applicant's visa: TR at [109]. 23 In respect of the strength and nature and duration of ties to Australia (Primary Consideration 3), the Tribunal set out the applicant's claims to have "sound relationships" with each of his siblings in Australia, especially his eldest sister, and to be in regular contact with them. The Tribunal recorded that the applicant also listed his brother-in-law as another "close family member" and noted his claims that "his immediate family members would be devastated if the cancellation of his visa was not revoked": TR at [111]. However, noting that no submissions were made by the applicant's immediate family in support of him, the Tribunal placed limited weight on the applicant's statements that he is supported by his siblings in Australia: TR at [112]. 24 In relation to the applicant's extended family, the Tribunal found that it might accept that the applicant had a cordial relationship with them but that there was no evidence that these relationships were of particular weight or consequence: TR at [113]. 25 The Tribunal, while acknowledging the applicant had spent a considerable period in Australia, did not accept that he had spent his formative years in Australia: TR at [115]. The Tribunal found the applicant started offending soon after arriving in Australia: TR at [117]. 26 The Tribunal concluded at [119] that Primary Consideration 3, the strength, nature and duration of ties to Australia, "weighs very slightly in favour of the revocation of the cancellation of the Applicant's visa". 27 The Tribunal, in addressing the best interests of any minor children in Australia (Primary Consideration 4), found that the applicant's children reside in Tonga and were not Australian citizens, and therefore their interests were not relevant to this consideration: TR at [122]-[125]. In relation to the applicant's nieces and nephews, the Tribunal found that the applicant's relationship with those children was non-parental, and that the applicant could continue to keep in contact with his nieces and nephews by electronic means if removed from Australia: TR at [126]- [128]. The Tribunal gave this consideration neutral weight: TR at [129]. 28 Addressing the expectations of the Australian community (Primary Consideration 5), the Tribunal held that this weighed "very heavily against" revocation: TR at [137]-[140]. 29 The Tribunal then turned to consider Other Considerations under Direction 99. In relation to the extent of impediments if removed (Par 9.2, Direction 99), the Tribunal found there was no material to corroborate the applicant's claims about his mental illness: TR at [147]-[149]. It found that any impediments the applicant might face in relation to his age and health should he be returned to New Zealand would be very limited: TR at [149]. It found that cultural, social or linguistic barriers would not prevent the applicant from re-establishing himself in New Zealand: TR at [150]. It also found that, to the extent the applicant would face any social, medical or economic impediments in New Zealand, as a New Zealand citizen he would have access to essentially equivalent social support and housing as needed. It noted that New Zealand has a similar social welfare system in place to Australia. The Tribunal attributed this consideration "very limited weight": TR at [153]. 30 The Tribunal concluded that it was "necessary to weigh up all of the primary and other considerations" (at [168]) and found at [169]-[170] that: Having regard to all the relevant circumstances, the Tribunal finds that the proper application of the Direction favours the Tribunal exercising the discretion to refuse to grant the Applicant's Visa. The Tribunal finds that there is "another reason" pursuant to subsection 501CA(4)(b)(ii) of the Act to refuse to grant the visa. Whilst the Tribunal accepts there are likely to be some limited impediments to the Applicant if he is removed from Australia, the Tribunal considers protection of the Australian community, and in particular the risk of the Applicant reoffending and causing further physical and psychological harm are such that these considerations outweigh the other considerations. The Applicant has committed family violence on multiple occasions. There is an expectation by the community that the Australian Government can and should cancel the visas if a non-citizen raise serious character concerns from conduct that includes family violence, and the commission of serious crimes against women. The Tribunal is not satisfied that there is another reason to revoke the mandatory cancellation of the Applicant's visa.

GROUND 1: DID THE TRIBUNAL MISUNDERSTAND ITS STATUTORY TASK UNDER S 501CA(4)(b)(ii)?

4.1 The issue 31 Ground 1 of the application turns upon whether the Tribunal properly understood its statutory task under s 501CA(4)(b)(ii) of the Migration Act. 32 Section 501CA(4) applies where the Minister makes a decision under s 501(3A) (the original decision) to cancel a visa that has been granted to a person: s 501CA(1). Under s 501CA(3), the Minister is required to give written notice in accordance with s 501CA(2) and (3) of the decision under s 501(3A) and to invite the person to make representations to the Minister about revocation of the decision. Importantly for present purposes, s 501CA(4) provides that: The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 33 If the original decision is revoked, s 501CA(5) provides that "the original decision is taken not to have been made". It was not in issue that the applicant had made representations in accordance with the invitation, as the Tribunal found. Nor was there any challenge to the Tribunal's finding that it was not satisfied that the applicant passed the character test and therefore that s 501CA(4)(b)(i) was not met, subject to the issue raised by ground 4 of the application which cannot be sustained following the decision in Pearson (HCA). The applicant's focus was therefore upon s 501CA(4). 34 Initially, in written submissions the applicant submitted that s 501CA(4) conferred a residual discretion where the person makes the representations referred to in s 501CA(4)(a) and the Minister reaches the required state of satisfaction in respect of one of the jurisdictional facts provided in s 501CA(4)(b)(i) or (ii). However, at the hearing, the applicant contended that it was unnecessary to determine whether there was a residual discretion under s 501CA(4) once the jurisdictional pre-conditions in subs (a) or (b) were meet. Rather, the applicant submitted that the Tribunal fell into jurisdictional error by approaching its task as if s 501CA(4)(b)(ii) conferred a general discretion as to whether to revoke the visa cancellation instead of determining whether it had reached the statutorily prescribed state of satisfaction which involves a different evaluative exercise or mental process. As such, the applicant submitted that the Tribunal had made the same error as the Tribunal in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125; (2022) 295 FCR 315. 35 However, the Minister submitted that, read holistically and fairly, no such error is apparent from the Tribunal's reasons and the decision in Au is therefore distinguishable.

4.2 No error has been established in the Tribunal's consideration of s 501CA(4)(b)(ii) 36 The correctness of the applicant's distinction between the exercise of a discretion, on the one hand, and the question of whether a decision-maker has reached a particular state of mind as a condition precedent to an exercise of the power, on the other hand, was rightly accepted by the Minister. That distinction was discussed by Derrington J (Perry and O'Sullivan JJ agreeing) also in the context of s 501CA(4)(b)(ii) of the Migration Act in Au. Relevantly, Derrington J explained at [33] that: The importance of the type of discretion being considered is that the decision-maker's autonomy extends to the outcome of a particular decision so long as it falls within the scope of the power in the sense that it is not unreasonable. One might regard a statutory obligation on a decision-maker to be satisfied of a particular matter as a condition precedent to the exercise of power as being far less than a discretion. Although the formulation of a state of mind equating to a satisfaction that a thing exists might involve elements of subjectivity in assessing the facts and circumstances relevant to the existence or otherwise of the thing, it cannot be said that whether the state of mind exists or not has any discretionary element to it. The formation of the state of mind might be regarded as the exercise of a discretion "in a sense" or "in a broad sense": Coal and Allied Operations v AIRC [(2000) 203 CLR 194, 205 at [20]: however, the two activities do not involve the same mental process. 37 Accordingly, Derrington J held that "forming a state of mind is, both functionally and legally, substantively different from exercising a general discretion", rejecting the Minister's submission to the contrary (at [36]-[37]). Similarly, O'Sullivan J in Au held at [154] that "the evaluative task required to be undertaken in reaching, or not reaching, a state of satisfaction is not the same as approaching the question from the perspective of the exercise of a discretion." 38 Relevantly in the context of s 501CA(4)(b)(ii), in determining whether the decision-maker is satisfied that there is "another reason" for revoking a visa cancellation, "the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations": Plaintiff M1/2021 v Minister for Home Affairs [2002] FCA 17; (2022) 275 CLR 582 at [22]; see also Au at [38] (Derrington J). Similarly, O'Sullivan J in Au held at [139] that: Whether or not the state of the satisfaction required for s 501CA(4)(b)(ii) is reached, is the subject of an evaluative exercise to be undertaken by the decision-maker, taking into account the representations of the applicant which are clearly articulated or which clearly arise on the materials before them: Plaintiff M1/2021 at [25] (Kiefel CJ, Keane, Gordon, Steward JJ); Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at 602-604 [34], (Allsop CJ, Bromberg, Robertson, Griffiths, Perry JJ), and the matters in Direction 79: Gaspar at [38]-[39] (North ACJ); Viane (Colvin J at 64-79); and Marzano (Collier J at [32]). 39 Ultimately, therefore, the disposition of ground 1 turns not upon an issue of law about which there was no issue, but upon the proper construction of the Tribunal's reasons. 40 As the Minister contends, the reasons of the Tribunal must be read fairly and as a whole: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [59]-[60]. In this regard, it is well established that the reasons of an administrative decision-maker "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 271-2 at [30] (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287)). As such, when it is said that such reasons should be read beneficially, ultimately this means that "a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying": Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]-[15] (Allsop J (as his Honour then was)). 41 In Au, on which the applicant relies by analogy, the Full Court held that there was nothing in the Tribunal's reasons which suggested that it had understood the correct question posed by s 501CA(4)(b)(ii). Rather, Derrington J (Perry and O'Sullivan JJ agreeing) held at [22]-[23] that the Tribunal: …expressly directed itself to the exercise of what it perceived to be a discretion in s 501CA(4) as to whether it should or should not revoke the cancellation decision. It seems to be undoubted that when the Tribunal member referred to a "discretion", he intended that to be an accurate description of the power in question. Secondly, the express and repeated statements by the Tribunal member that he was exercising a discretion cannot be ignored. He is a Senior Member of the Tribunal and a member of the legal profession. As such, the distinction between a discretion and the formation of a state of satisfaction would have been readily understood. It is not reading the reasons too finely to attribute to the Tribunal an approach that it repeatedly said it was adopting. 42 Similarly, O'Sullivan J did not accept the Minister's submissions that the many references to exercising a discretion in the Tribunal's reasons in that case could properly be characterised as "looseness in language"(at [151]). 43 I agree with the Minister, however, that read in line with the principles outlined above, this case does not fall into the same category as Au for the following reasons. While the Tribunal's reasons are not entirely satisfactory, read fairly and holistically they do not reveal that the Tribunal misunderstood the nature of its task under s 501CA(4)(b)(ii) in determining whether there was another reason for revoking the visa cancellation. 44 In support of his submissions, the applicant placed weight upon the description by the Tribunal at [10] under the heading "Legislative framework" of "the issue" being "whether the discretion to revoke the mandatory cancellation of the Applicant's visa may be exercised" (emphasis added). However, that submission, with respect, takes the statement out context as immediately after that statement the Tribunal explained: This requires the Tribunal to address these two issues: (a) whether the Applicant passes the character test; and, if not, (b) whether there is another reason why the decision to cancel the Applicant's visa should be revoked. 45 This further explanation correctly sets out the Tribunal's task and strongly suggests that the Tribunal was using the word "discretion" at [10] interchangeably with the word "power", as the Minister submits, or as a short-hand description of the evaluative exercise which s 501CA(4)(b)(ii) requires the decision-maker to undertake. That understanding is supported by the correct statement again by the Tribunal at [17] of the test in s 501CA(4)(b)(ii), having found that the applicant has a substantial criminal record with the result that the requirements of s 501CA(4)(b)(i) are not met. 46 The applicant also relied upon the reference at [18] of the Tribunal's reasons to "considering whether to exercise this discretion". However, the reference to discretion at [18] appears immediately beneath the heading "Is there another reason why the original decision should be revoked under subsection 501CA(4)?" which correctly states the statutory task, suggesting that the Tribunal was again using word "discretion" interchangeably with the word "power" or as referring to the evaluative exercise required by s 501CA(4)(b)(ii). 47 The applicant further submitted that, in considering each of the factors, including family ties, the Tribunal "uses the language of discretion, being a weighing-up exercise, and that is quite a different evaluative test than is required for reaching a state of satisfaction." It is correct to say that the Tribunal expressly engages in a process of weighing the different considerations. However, that does not indicate that it misunderstood the nature of the process required by s 501CA(4)(b)(ii). To the contrary, it reflects the evaluative nature of the decision-making process required in reaching, or not reaching, a state of satisfaction and accords with the approach of weighing primary and other considerations set out in Direction 99, as the Tribunal recognised at [24] quoting Suleiman v Minister for Immigration and Border Protection [2018] FCA 594. Thus, for example, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [15], the High Court explained that, in deciding whether "another reason" exists for the purposes of s 501CA of the Migration Act, "matters of judgement" may be involved, "especially when weighing factors for and against revocation." Similarly, Gordon J in Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at [71] explained that: The Tribunal's task under s 501CA(4) of the Migration Act was evaluative. In deciding whether there is "another reason" why a visa cancellation decision should be revoked, a decision-maker must evaluate representations made in response to an invitation issued under s 501CA(3)(b), assess and weigh relevant evidence and material, and weigh and balance considerations for and against revocation. (See also, e.g., North ACJ in Gaspar v Minster for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337 at [38].) 48 In turn, as Kennett J explained in Demir v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCA 870 at [21]: The metaphor of "weighing" relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is "another reason" for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker's personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker's duty to "call his own attention to the matters which he is bound to consider"… Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight… 49 As such, while there is a distinction between the exercise of a discretion and the question of whether the decision-maker is satisfied that another reason exists, both require an evaluative process of weighing relevant considerations to be undertaken and in both contexts, reference to the metaphor of weighing the considerations is orthodox. 50 Finally, the Tribunal's reasons at [169] wrongly identify the question before the Tribunal, stating that: Having regard to all the relevant circumstances, the Tribunal finds that the proper application of the Direction favours the Tribunal exercising the discretion to refuse to grant the Applicant's Visa. The Tribunal finds that there is "another reason" pursuant to subsection 501CA(4)(b)(ii) of the Act to refuse to grant the visa. 51 The Tribunal was not, of course, deciding whether to affirm a decision to refuse to grant a visa; nor does s 501CA(4)(b)(ii) ask whether there is another reason to refuse to revoke the cancellation of a visa but only whether there is another reason to revoke the cancellation. However, those errors are not otherwise evident in the Tribunal's reasons. In the immediately preceding paragraphs of the Tribunal's reasons under the heading "Conclusion", the Tribunal sets out its findings on whether the various considerations weigh in favour of, or against, revocation or are neutral, and concludes at [170] that: The Tribunal is not satisfied that there is another reason to revoke the mandatory cancellation of the Applicant's visa. 52 Paragraph [171] then sets out the Tribunal's decision affirming the delegate's decision "not to revoke the mandatory cancellation" of the visa. Thus, in context, the misstatements at [169] are likely to be the result of loose and rushed drafting and proofing, given that the decision was made on 28 July 2023 which was the 84th day after the applicant was notified of the delegate's decision. It was, therefore, the last date on which the Tribunal could make a decision on the review before the delegate's decision was taken to have been affirmed by force of s 500(6L) of the Migration Act. 53 Read as a whole, therefore, I do not consider that the Tribunal's reasons reveal that it misunderstood the nature of the task which it was required to undertake by s 501CA(4)(b)(ii) of the Migration Act.

GROUNDS 2 AND 3: WAS THERE A BREACH OF PROCEDURAL FAIRNESS?

5.1 Relevant principles 54 First, it is common ground that an applicant applying for review by the Tribunal of a decision under s 501CA(4) of the Migration Act is entitled to procedural fairness: Picard v Minister for Immigration and Border Protection [2015] FCA 1430 (Tracey J). 55 Secondly, in broad terms, the requirements of procedural fairness are concerned to ensure that a person who may be affected by an exercise of power is afforded an opportunity to be heard: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [82] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ). Nonetheless, the content of procedural fairness is flexible and is ultimately a question of "what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made": Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [30] (Kiefel, Bell and Keane JJ); see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26], [29]; and Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [19]-[20]. In other words, the obligation is to afford an opportunity to be heard where that is reasonable in all the circumstances known to the decision-maker and having regard to the applicable legal framework within which the power falls to be exercised: Kioa v West [1985] HCA 81; (1985) 159 CLR 500 at 616 and 627 (Brennan J); see also CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [367] (Gageler J (as his Honour then was)). 56 In general, compliance with this obligation requires, as the High Court explained in SZSSJ at [83]: 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 the power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. (See also Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 at 590-1 (the Court).) 57 In other words, what is generally required is disclosure of information adverse to the person that is "credible, relevant and significant to the decision to be made": Kioa at 629 (Brennan J (as his Honour then was)). 58 On the other hand, the Full Court in Alphaone at 591 explained that: A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it … Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case…. 59 Similarly, the Full Court held in SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; (2018) 266 FCR 105 at [38] that: Procedural fairness does not require the decision maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision, and generally does not require a decision maker to invite comment on the evaluation of the subject's case: [citing Alphaone at 590-1]. (Approved, for example, in National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415 at [68] (the Court).) 60 Thus, the Tribunal is not under a duty to provide an applicant with a "running commentary" upon what it thinks about evidence that is given, and to do so would likely run the risk of conveying an impression of prejudgment: SZBEL at [48]. 61 These principles are subject relevantly to the proposition that "[t]he subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which it not an obvious and natural evaluation of that material": Alphaone at 591. 62 In short, therefore, as the Full Court concluded in Alphoane 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. 63 Secondly, save where the nature of the error is such that it necessarily satisfies the requirement of materiality, the onus lies upon an applicant to establish that the alleged breaches of procedural fairness were material to the impugned decision on the basis of inferences drawn from the evidence: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [4], [41] and [46] (Bell, Gageler and Keane JJ); Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379 at [32(5)] (the Court); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [6] and [13] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). In this regard, as the plurality in LPDT held at [14]-[16]: The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous. What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example. In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion). (Emphasis in the original.)

5.2.1 The applicant's evidence 64 As earlier explained, the applicant first contends that the Tribunal was in breach of procedural fairness by failing to inform him of his right to seek an adjournment to obtain more time to provide supporting evidence of his relationship with his siblings. 65 In support of this ground, the applicant relied upon the transcript of the Tribunal hearing on 17 July 2023, which was annexed to the affidavit of Thomas Anthony Coltrona, solicitor, sworn on 22 April 2024. However, while the transcript was supplied by the Tribunal apparently from a third-party provider, it failed almost completely to record the applicant's answers, instead repeatedly recording "Indistinct words", "No audible reply" and "Audio malfunction". Yet nowhere in the transcript is there any record of the transcript provider interrupting proceedings to indicate a difficulty in hearing the applicant's evidence or audio malfunction. In those circumstances, the transcript was of virtually no assistance in recording the applicant's evidence. It also appears that, following the luncheon adjournment, the transcript missed almost half an hour of the hearing between 2.00pm-2.28pm. The applicant did not, however, suggest that the Tribunal had relied upon the transcript such that the deficiencies in the transcript may have sounded in any breach of procedural fairness. Rather, the applicant submitted that the Court could infer that the Tribunal did not rely on the transcript given that it was not included in the Court Book. 66 The applicant also relied upon his affidavit sworn on 24 April 2024 deposing as follows: (1) He has five siblings who live in Australia and has a close relationship with each of them. (2) It was not suggested to him at the hearing on 17 July 2023 that he did not have a close relationship with his siblings. (3) He had asked his siblings in Australia to provide statements to him in support of his application in the Tribunal. However, despite saying that they were happy to do so, his siblings in Australia were unable to do so in time, referring to at least one sister who is very busy. (4) He found the Tribunal procedures "confusing and difficult to follow" and that it was "difficult to meet timeframes". He "was not ready for the hearing on 17 July 2023." (5) He was not told either at the hearing or before it that he could apply for an adjournment in order to allow him more time within which to get statements from his siblings. However, if he had been told, he would have asked for an adjournment in order to obtain the statements from them.

5.2.2 Is the breach of procedural fairness in ground 2(a) established? 67 The Minister relied upon the applicant's evidence of his attempts to obtain statements from his siblings in Australia before the Tribunal hearing because they showed that he was aware that he could submit statements by them, even though he failed to do so. The Minister also submitted that there were real statutory barriers to the grant of an adjournment. First, under s 500(6L) of the Migration Act, the Tribunal was required to make a decision within 84 days of the delegate's decision, or the provision would deem the Tribunal to have made a decision affirming the delegate's decision. In the present case, the Tribunal's hearing was held on 17 July 2023, some 11 days only before the 84-day period expired. (I note, however, it should also be borne in mind that the timing of the hearing so close to the expiry of the 84-day period was not a matter within the applicant's control.) 68 Secondly, the Minister relied upon s 500(6J) of the Migration Act which prohibited the Tribunal from considering documents in support of the applicant's request for revocation unless the Minister is provided with a copy of the documents at least two business days before a hearing is held by the Tribunal. As the Minister therefore submitted, was not, therefore, open to the Tribunal to afford the applicant a couple of days after the hearing within which to lodge the further statements. In order for the Tribunal to be permitted to consider any such statements, it would have been necessary for the Tribunal to adjourn the hearing. 69 In addition, the Minister emphasised that the letter notifying the applicant of the cancellation decision on 19 May 2022 and his right to apply for revocation, expressly drew his attention to addressing considerations 8 and 9 of Direction 90 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (a copy of which was attached) and his ability to provide any information which he wished the decision-maker to take into account, including letters of support from family. The Minister also relied upon the finding by the delegate in the context of considering the applicant's strength, nature and duration of ties to Australia, that the applicant had five immediate family members in Australia being his siblings but no submissions in support of the applicant were provided by them. 70 Given these matters and the applicant's own evidence about his attempts to obtain statements from his siblings in Australia, the Minister contended that the applicant was clearly on notice of the potential relevance of such statements and that he could provide material of that kind to the Tribunal for its consideration. In the Minister's submission, nothing further was required to afford the applicant procedural fairness. 71 I accept the relevance of these considerations to the content of procedural fairness in the present case. Nonetheless, in my view, the Tribunal was, in all of the circumstances, required to advise the applicant of his entitlement to seek a short adjournment so that he could provide statements from one of more of his siblings in Australia to the Tribunal, in order to comply with its obligation of procedural fairness. 72 First, the applicant appeared before the Tribunal without legal representation. The applicant also stated in his revocation request that he was detained in the Bathurst Correctional Centre. By the time of the Tribunal hearing, he was in immigration detention and there is no suggestion that he was at liberty at any time between the delegate's decision and the Tribunal hearing. In his request, the applicant also stated that he had worked as a labourer, picker, and courier. It follows that he was unlikely to be in a position to understand his legal rights and entitlements and, by reason of his incarceration in the leadup to the Tribunal hearing, was necessarily limited to some extent in the avenues he could pursue to obtain material in support of his request. These factors would all have been known to the Tribunal from the material before it. 73 Furthermore, the Tribunal's duty to assist an unrepresented person is likely to be more extensive where the consequences of an adverse decision are serious: see by analogy Minogue v Human Right and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at [27] (the Court). In this case, the consequences were of a most serious kind, as the applicant submitted, being his removal from Australia where he had lived for over 19 years, separation from family members with whom he had a strong relationship and who provided him with emotional support, and return to New Zealand where he has no family with whom to reunite. 74 Cumulatively, these are relevant contextual matters "shap[ing] the question of the fairness of the procedure which was adopted" by the Tribunal: Dharma v Minister for Home Affairs [2019] FCA 431 at [65] (Griffiths J); see also Ikupu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 74 at [49] (Jagot J). As I held, for example, in Mushke v Minister for Immigration and Border Protection [2016] FCA 1003 at [35]: the circumstances were such as to raise a question as to whether the appellant was denied procedural fairness if, as the appellant has said, he was not advised that in the circumstances he could apply for an adjournment. In this regard I note that courts have a duty to ensure that an unrepresented litigant is aware of the Court's practice and procedure so far as is reasonably practicable to ensure a fair trial, and that the failure to comply with that duty may result in the decision being set aside on the ground of a breach of procedural fairness: SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at 452-454 [37] (Robertson J (with whose reasons Allsop CJ and Mortimer J agreed)) (approving Hamod v New South Wales [2011] NSWCA 375 at [309]-[316]); AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [38] -[42] (the Court); BYF15 v Minister for Immigration and Border Protection [2016] FCA 774 at [35]. 75 Secondly, the strength of the applicant's relationship with his five siblings in Australia was a significant part of his submissions in support of his request for revocation and were relevant considerations which the Tribunal (as it implicitly accepted) was required to take into account. Thus, in his revocation request, the applicant submitted that his family members "would be devastated" if the visa cancellation were not revoked and he gave oral evidence at the hearing of the strength of his relationships with them, especially his eldest sister. 76 Thirdly, it was common ground that the Tribunal did not advise the applicant that he could seek an adjournment in order to attempt to adduce statements from his siblings despite the Tribunal member putting to the applicant that it did not have any statements from the applicant's family members in the following passage: Now I note that you talked about your extended family here, brothers and sisters and further and beyond. What support do they provide you here? --- Support? Yes. Because I - I mean, I ask that in the context, if you like, of there were no statements here from them, no kind of evidence from then? ---- Yet. Okay. Your Honour, I - they were just confused about the dates they had to be in , and - yes. Well, okay. Well, then - but what about what support they provide you? What is any support they provide you? --- No? Just - just mental - sort of mental support. You know, just keeping me - reminding me what I need to do and - yes. And - and it's - it's helping. It's helping, especially in this situation, being at this place, the detention centre. Yes. It's not the best conditions, but I - you know, that's beside the point. They help me out a lot. When things get a little tough, I just call my sister and she - - - Your elder sister? --- Yes, my elder sister. And she was devastated that, you know, I was coming in today and she didn't send her letter in. Yes. (On an aside, I refer back to my comments at [65] above as to the state of the transcript of the Tribunal hearing and note that the recording of the applicant's evidence in this part of the transcript was the exception and is not representative of the problems otherwise apparent from the bulk of the transcript of the applicant's evidence.) 77 Despite the applicant's evidence particularly about his elder sister being devastated that she had not sent in her letter, the Tribunal then immediately moved on to a new topic about the applicant's relationship with his children. In this regard, it will be recalled that it was the applicant's evidence that he had a particularly strong relationship with his elder sister. 78 Fourthly, it was rightly not suggested that the statutory barriers in the way of an adjournment on which the Minister relied meant that an adjournment could never be granted. It follows that, while the prospects of an adjournment being granted were not likely to be high and, even if granted, any period of adjournment would necessarily be constrained by the requirements of s 500(6J) and (6L), it does not follow that the applicant should not have been advised of his right to request an adjournment in order to put those documents to the Tribunal. In this regard, it is assumed that the Tribunal would have approached the question of an adjournment with an open mind, while mindful of the constraints to which the Minister has referred.

5.2.3 Is the breach material (ground 3)? 79 Furthermore, in my view, the applicant has established that the breach of procedural fairness was material and not fanciful or improbable. 80 In the first place, while the applicant's evidence lacks details such as when he asked his siblings in Australia for the statements and any reasons given by his siblings for being unable to finalise the statements in time, he was not cross-examined on his evidence. Further, his evidence that he attempted to obtain statements from them and followed up the matter with at least some of his siblings is plausible and I accept that evidence. In this regard, the applicant's evidence that he was aware that statements from family members were potentially relevant to his revocation request is supported by the fact that the applicant was on notice from the delegate's decision as to the potential relevance of receiving submissions from his immediate family members in Australia. 81 Secondly, bearing in mind that the applicant was not cross-examined in this proceeding and the applicant's evidence to the Tribunal about how devastated his elder sister was that she had failed to provide a letter in time, I do not accept that it would have been fruitless to adjourn the hearing in order to afford the applicant the opportunity to provide statements from his siblings in Australia, notwithstanding that any adjournment would necessarily have been very short given the tight time constraints within which the Tribunal had to make its decision. 82 Thirdly, if the applicant had placed corroborative evidence as to the strength of his relationship with his siblings in Australia and the impact on him and them of his removal from Australia before the Tribunal, I do not consider that the possibility of different result would be fanciful or improbable. This was an important aspect of the applicant's case. Furthermore, the lack of corroborative evidence on the point was undoubtedly taken into account by the Tribunal in finding that the strength, nature and duration of the applicant's ties to Australia (Primary Consideration 3) "weighs very slightly" only in favour of revocation. The Tribunal also cites the lack of corroborative evidence at several points in its reasons, emphasising the importance attached by the Tribunal to this deficiency in the applicant's case: TR at [119] and [164]. It must also be assumed that the Tribunal would have approached any further evidence with an open mind, as is apparent from the passage earlier quoted from LPDT at [15]. 83 Finally, in my view, to consider the question of the potential impact of further evidence from his sibling upon the outcome in any greater depth would be to cross the line into merits review. In short, as the plurality in LPDT held at [16] in a passage that bears repeating: unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion). (Emphasis added.)

5.3 Ground 2(b) 84 The applicant also contends that the Tribunal failed to accord him procedural fairness by making a finding contrary to the evidence of his close relationship with his siblings in circumstances where the basis for that factual finding was not put to the applicant. Given that I have found a breach of procedural fairness as alleged by ground 2(a), it is strictly unnecessary to address this ground. 85 The applicant contends that his evidence was doubted by the Tribunal in circumstances where he was unrepresented, not on notice that the reliability of his evidence was in issue by cross-examination or by the Tribunal, and it was not necessarily clear that his evidence on the subject was exhausted, contrasting Twentyman v Secretary, Department of Social Services [2018] FCA 1892; (2018) 76 AAR 449 at [100]-[101]. Rather, in the applicant's contention, a fair trial required that he be given proper notice that his evidence as to his relationship with his siblings in Australia may be disbelieved or given little weight. 86 However, first this was not a case where the Tribunal positively disbelieved the applicant as to his evidence about the strength of his relationship with his siblings in Australia. Rather, it found that, in the absence of corroborative evidence, it could give the evidence limited weight. 87 Secondly and that being so, there was no obligation on the Tribunal, as a matter of procedural fairness, to give the applicant notice that his evidence about the strength of his relationship with his siblings in Australia may be given little weight. As I have earlier found, the applicant was aware from the letter advising of the visa cancellation that he could rely upon evidence from family members about his relationship with them and was aware that evidence of this kind was potentially relevant and could assist him to persuade the Tribunal to revoke the cancellation. It will also be recalled that the delegate had drawn attention to the absence of any submissions from his immediate family members in the context of considering the applicant's strength, nature and duration of ties to Australia (at [68]). The applicant's submissions ultimately therefore reduce to a complaint about the Tribunal's failure to provide a "running commentary" on its mental processes and evaluation of his evidence which is not generally required as a matter of procedural fairness: see the discussion of the authorities above at [55]-[62]. This is not a case where it can be said that the findings by the Tribunal were "not an obvious and natural evaluation" of the applicant's material so as to attract an obligation to permit the applicant to respond to the adverse finding which the Tribunal proposed to make with respect to the strength of his relationship with his siblings in Australia and the limited weight to be given to his evidence on the subject as a consequence. 88 It follows that this case is relevantly distinguishable from Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59; (2024) 303 FCR 261, on which the applicant here relied. In Korat, the Full Court held that the Tribunal had not "fairly raised with the appellant the issue that the appellant's alcohol misuse and the risk that it would continue with the associated risk of violence, meant that it was in the best interests of the children to be separated from their father" (at [54]). Furthermore, the Full Court held that, "the parties had not fought the case on the basis that the appellant's alcohol problems and the risk of associated violence, were such that the best interests of the children lay in the children being separated from their father" (at [59]). As such, the Full Court held that the Tribunal had not merely failed to expose its mental processes or preliminary views for comment (at [62]). Rather, it held (at [62]) that: In light of the course of proceedings, practical injustice could only be avoided if the appellant were provided an opportunity to address the issue which the Tribunal ultimately found against the appellant. This was not an issue put forward by the parties, it was not an issue which the Tribunal squarely raised, and it was not an issue which was obvious given the course of the administrative decision-making process and the course the proceedings had taken. 89 By contrast, the applicant here was aware of the issue and the deficiency in his evidence.

CONCLUSION 90 For these reasons, the application should be allowed on the basis that the applicant has established a breach of procedural fairness as alleged in grounds 2(a) and 3 of the application and the applicant is entitled to an order for his costs, in accordance with the ordinary rule. 91 Finally, I also consider that these reasons, especially at [65] above, should be brought to the attention of the Tribunal so that it is aware of my concerns as to the unsatisfactory state of the transcript of the hearing before the Tribunal. I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.