Hovhannisyan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The originating application be dismissed.
2. The applicant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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.