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[2021] FCA 176
Federal Court of Australia
2021-03-01
Gleeson CJ, Tracey J, Jagot J
Original judgment source is linked above.
JAGOT J: 1 The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 8 September 2020 in which the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to cancel the applicant's partner visa under section 501(2) of the Migration Act 1958 (Cth) (the Act). 2 The originating application contains the following two grounds of review and particulars: Grounds of application (1) The Tribunal erred in failing to find that the [Minister] made jurisdictional error by denying the Applicant procedural fairness. (2) Considerations The error of law, where decision maker wrongly applied the law [sic] Particulars (a) A finding that Mr Hovhannisyan had a disregard for judicial orders is a powerful one going to a central feature of his character in relation to a prediction of how he might behave in the future in respect of further offending. This should have been put to him with enough particularity to allow Mr Hovhannisyan to comment on it. The purpose of the obligation to afford procedural fairness to a person who may be affected by an adverse decision is to avoid the "practical injustice" which may occur when an opportunity to explain is lost. Relying on Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1; [[2003]] HCA 6 at [38] per Gleeson CJ. In the context of a decision under s 501CA(4), counsel also relied on the dictum of Tracey J in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [42] that: … If, however, the Minister becomes aware of information which is personal to the applicant and which might lead the Minister to disbelieve some critical information supplied by the applicant, it may be necessary for the Minister to expose that information to the applicant and give the applicant the opportunity of responding to it before making a decision. (b) The Tribunal erred in finding that the Delegate from his history of offending set out in the National Police Certificate were not "obvious" or "obviously open on the known material" cannot be sustained. The ground is the equivalent of suggesting that procedural fairness requires an applicant for revocation of a cancellation decision to be provided with submissions prepared by the Department for the Minister explaining how the evidence might be reviewed, a contention which was rejected in M238 of 2002 v [The Honourable Phillip Ruddock,] Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 at [54]: (c) whether the primary judge erred in finding that there was no procedural unfairness - whether the appellant was given practical, direct and non-misleading advice as to how material disclosed to him might be used by the Assistant Minister - (d) The Minister failed to put Mr Hovhannisyan on notice of the potential adverse effect of the National Police Certificate. (e) the Minister relied expressly on "convictions of serious nature of judicial orders and non-custodial dispositions" in causing him to "pause in accepting unquestioningly that Mr Hovhannisyan will not reoffend if returned to the community". (f) The underlying purpose of the requirements of notice or disclosure as aspects of procedural fairness is another important consideration. It is to provide an opportunity for meaningful participation by the potentially aggrieved person and to enable the person fairly to respond to adverse matters. (g) grounds giving rise to jurisdictional error. The observations serve, however, to highlight the materiality of the loss of Mr Hovhannisyan'[s] opportunity to comment on matters which were significant to the Assistant Minister's decision and about which he had not been given sufficient prior notice. (h) The decision maker acted beyond its responsibilities or acted improper purpose: This law violates the constitution. 2. The [Tribunal] in making its decision did not comply with the rules of natural justice. 3. There was insufficient evidence or no evidence to support various findings made by the [Tribunal]. 4. The [Tribunal] denied the appellant procedural fairness.
Ground 1 - Procedural fairness 3 The first ground is that the Tribunal erred in failing to find that the first respondent made a jurisdictional error by denying the applicant procedural fairness. 4 Insofar as this ground seeks to raise a question concerning the conduct of the Minister, it is irrelevant. 5 Insofar as this ground is to the effect that the Tribunal denied the applicant procedural fairness, I am unable to draw any such conclusion on the material which is before me. As the submissions for the Minister (MS) point out, the suggestion is that the Tribunal denied the applicant procedural fairness because it did not put to him how his previous response to judicial orders was relevant to a prediction of his risk of re-offending in the future: MS [15]. As the Minister submitted, however, a decision-maker is not obliged to invite comments in respect of its evaluation of the case before the decision-maker: MS [17] citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 293. 6 In the present case, the relevance of the applicant's previous response to judicial orders made against him was obvious to the review application. That is, it was obvious that the Tribunal may draw a conclusion that the applicant presented a risk to the community and was at risk re-offending, given his criminal history and his previous non-compliance with apprehended violence orders made against him. 7 I am unable to conclude that there was any denial of procedural fairness to the applicant by the conduct of the hearing of the Tribunal or the reasons it gave in support of its conclusion affirming the decision of the delegate. 8 In particular, I am unable to accept any of the matters set out in the particulars to this first ground of review, including the allegation that the Tribunal failed to put the applicant on notice of the potential adverse effect of the National Police Certificate concerning him, or otherwise failed in any other way to give the applicant a reasonable opportunity to respond to matters adverse to him.
Ground 2 - Error of law 9 The second ground of review is an allegation that the Tribunal wrongly applied the law. 10 It is not apparent from the particulars how this might be so, other than that the particulars repeat the allegation that the applicant was denied natural justice and procedural fairness, and otherwise contend that there was insufficient evidence or no evidence to support various findings made by the respondent. I assume, again, that the reference to the respondent should be understood as a reference to the Tribunal. 11 It is not possible to conclude that the Tribunal acted on the basis of insufficient or no evidence. The Tribunal's reasons adequately demonstrate its consideration of the relevant facts and give cogent reasons for the conclusion the Tribunal reached, that the correct and preferable decision was to affirm the decision of the delegate cancelling the applicant's partner visa. 12 Otherwise, in oral exchanges today, I asked the Minister's legal representative about the fact that the reasons of the Tribunal do not expressly deal with the issue of international non-refoulement obligations. 13 The Minister's legal representative took me to clause 10.1 of Direction No. 79 of the Act - 'Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA' - which states that in deciding whether to cancel a visa, the decision-maker was required to have regard to such matters including international non-refoulement obligations, as relevant. 14 In paragraph 47 of the Minister's statement of facts, issues and contentions it is identified that clause 10.1 of Direction No. 79 requires the decision-maker to consider non-refoulement obligations, but that the applicant had not raised any claims engaging Australia's non-refoulement obligations. 15 In these circumstances, it cannot be concluded that there was any error by the Tribunal in not dealing with this issue. 16 The inference which must be drawn, as the Minister submitted, is that the Tribunal considered that international non-refoulement obligations were not relevant to the applicant's review application. This inference is supported by the fact that the applicant was born in and is a citizen of Armenia, and lived in Armenia until he was 20 years old. 17 For the reasons I have given, I consider that the originating application must be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.
Hovhannisyan
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] AATA 3445
[1994] FCA 293
(1994) 49 FCR 576
(2003) 214 CLR 1
[2003] HCA 6