Kamal v Minister for Immigration, Citizenship and Multicultural Affairs

1. The appeal be dismissed.
2. The appellant file and serve written submissions limited to one page on or before 6 October 2023 in relation to the costs associated with the re-opening of the appeal.
3. The first respondent file and serve written submissions limited to one page on or before 11 October 2023 in relation to the costs associated with the re-opening of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 This is an appeal from orders made by a judge of this Court, dismissing with costs an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent, now known as the Minister for Immigration, Citizenship and Multicultural Affairs, not to revoke the cancellation of the appellant's visa under s 501CA(4) of the Migration Act 1958 (Cth). The appellant does not challenge the dismissal by her Honour of a further part of his application seeking a writ of habeas corpus. 2 The sole ground of appeal is that the primary judge erred in concluding that the Tribunal had not fallen into jurisdictional error by failing to carry out its statutory task, namely to ensure that the appellant had a reasonable opportunity both to present his case and to inspect documents to which the Tribunal proposed to have regard. That ground of appeal closely mirrors the sole ground of judicial review pressed before her Honour. The terms of the judicial review ground and the appeal ground in turn closely mirror the terms of s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), upon which the appellant relied and continues to rely. Section 39(1) relevantly provided and continues to provide that: … the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. 3 The background leading to the impugned Tribunal decision was summarised by the primary judge at J[3]-[10], and is not in dispute. That summary may therefore conveniently be reproduced as follows: [3] There is no real dispute about the applicant's background. He was born in Ethiopia on 10 June 1986. When the applicant was three years of age, his mother, his father, and his aunt, who I will call AM in these reasons, fled Ethiopia to a refugee camp in Kenya. He lived there until 1997. [4] The applicant lost his mother in 1989, and last saw his father in 1991, subsequent to which he was cared for and raised by AM. In Kenya, AM met and married SJ. SJ left Kenya for New Zealand in 1994. Three years later, in 1997, AM, with the applicant, joined SJ in New Zealand as refugees. He obtained New Zealand citizenship, and remains a New Zealand citizen. [5] In 2000, AM and SJ's marriage ended, and AM and the applicant relocated to Australia. At that time, the applicant was around 14 years of age. [6] On entry into Australia, the applicant was granted a Class TY (subclass 444) visa. [7] The applicant had not received any formal education while at the refugee camp in Kenya. While in New Zealand, he gained some literacy skills. Once in Australia, he recommenced school, before abandoning it again in year eight. [8] On 18 April 2002, the applicant was convicted of his first offences relating to drug use. Between that date and 14 January 2022, when he was taken into custody at the Melbourne Immigration Transit Accommodation detention centre, the applicant has spent the majority of his time in Australia in prison after conviction for various offences, the last of which was on 20 July 2018. This included a sentence on 6 June 2008 of four years' imprisonment for the offences of intentionally cause serious injury and affray (2008 conviction). [9] While in Australia, the applicant's visa has been purportedly cancelled three times: (a) On 15 March 2005, the applicant was notified that a delegate of the Minister had cancelled his visa (first cancellation). That decision was made under s 501(2) of the Migration Act 1958 (Cth). In the decision, the delegate relied on a sentence imposed on 28 May 2004 of 14 months' imprisonment for the offences of burglary and false imprisonment. On 21 March 2005, he sought review of that decision in the Tribunal, and on 14 June 2005 the Tribunal decided to revoke the first cancellation, and his visa revived. (b) On 4 May 2009 the applicant was notified that a delegate of the Minister had cancelled his visa (second cancellation). That decision was also made under s 501(2). For the second cancellation, the delegate relied on the 2008 conviction. On 28 July 2009, the Tribunal decided to revoke the second cancellation, and the applicant's visa was again revived. (c) On 21 July 2016, the applicant was notified that a delegate of the Minister had cancelled his visa (third cancellation). The third cancellation was made under s 501(3A) of the Migration Act. In the decision, the delegate relied on the 2008 conviction. On 8 August 2016, the applicant requested that the Minister revoke the third cancellation. For some reason not explained in the evidence, there was no decision on that revocation request for almost four years. On 24 January 2020, the applicant was notified that his revocation request had been unsuccessful. On 5 February 2020 he filed an application in the Tribunal for merits review of the refusal to revoke the third cancellation. On 1 April 2020, the Tribunal heard the applicant's application. The applicant filed written closing submissions between 6 and 16 April 2020, with the assistance of another prisoner. On 24 April 2020, the Tribunal affirmed the decision not to revoke the third cancellation (Tribunal decision). [10] It is the Tribunal decision, in relation to the third cancellation, that is the impugned decision for the purposes of the applicant's judicial review application. 4 The arguments advanced before the primary judge, and maintained on appeal, can be divided into questions of law, and questions of characterisation of what took place in light of the legal conclusions reached. The primary judge summarised the competing legal arguments advanced before her Honour about the operation of s 39(1) of the AAT Act succinctly before turning to the conclusions reached about them as applied to the circumstances of the case before her, as follows: [101] Counsel for the applicant submitted that s 39(1) contains three requirements: namely, that the applicant be given a reasonable opportunity to: (a) present his case; (b) inspect any documents to which the Tribunal proposed to have regard in reaching a decision in the proceeding; and (c) make submissions in relation to those documents. [102] The applicant submitted that the obligation to "ensure … a reasonable opportunity" elevates the obligation to one that is higher than that provided by the common law. Rather than being a "passive by-stander in the hearing as it progresses" (citing National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 at [65]), the Tribunal must "take reasonable steps to ascertain and satisfy [itself that it is meeting] the statutory threshold": citing Young and Conway v Chief Executive Officer, Housing [2020] NTSC 59; 355 FLR 290 at [69], [76]-[80]; Varricchio v Wentzel [2016] SASC 86; 125 SASR 191 at [50]. The applicant also relied on the Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553. There, by reference to s 425 of the Migration Act, which required the Tribunal to invite the applicant to appear and present arguments relating to the issues arising in relation to a decision under review, the Court held that the fulfilment of that obligation (at [33], [37]): must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31]. … … s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a 'real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788. [103] The applicant also relied on SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 as more recent consideration of this point. At [19], by reference to s 425 of the Migration Act, the Court held that: there may well be circumstances in which the opportunity is lost though the applicant is present in person, for example where the applicant is genuinely distracted by intractable pain or heavily sedated or confused so that he or she is not in a fit state to give evidence or present arguments. [104] The applicant identified three reasons, or "external misfortunes", in addition to the fact he was unrepresented: (a) The applicant was, at the time of the Tribunal hearing and when each of his submissions were due, enduring a lockdown in prison during the early part of the COVID-19 state of emergency. The applicant highlighted these limitations to the Tribunal. These conditions had significant repercussions for his well-being and mental health, which must be understood against the applicant's documented history of significant mental illness. (b) The applicant could not read at the level required to meaningfully "inspect" and "make submissions" on documents, especially when those documents were voluminous, new and were first provided to him during the hearing. The applicant also contended that the Minister had failed to comply with the Tribunal's directions relating to the provision of documents throughout the Tribunal process. Regarding the applicant's reading literacy and comprehension, the applicant relied particularly on his October affidavit (at [4]): I'm not good at reading or writing. I only went to school from the age of 9 to 14 years old. I struggle to understand legal documents, even when I can read the words. The applicant also pointed to similar statements having been made to the Tribunal, as recorded on the Tribunal transcript. (c) The applicant sought to adjourn the hearing twice, absent which his ability to fully prepare for the Tribunal process was prejudiced. [105] The main contentions made by the Minister were practical ones: (a) the Tribunal transcript demonstrates that the applicant "participated meaningfully in the hearing and gave relevant evidence"; (b) the Tribunal was aware that there was a "lockdown" in effect at the time of the hearing, the applicant was unrepresented and had not inspected certain documents prior to the hearing, and the applicant had requested adjournments; and (c) the applicant's adjournment requests must be understood in the statutory context of s 500(6L) of the Migration Act, by which certain decisions on review in the Tribunal are taken to have been to be affirmed if the Tribunal has not made a decision within the period of 84 days of notification of the decision under review in accordance with s 501G(1). (emphasis added) 5 It should be noted that the primary judge's above summary of the case advanced by the appellant was drawn from his submissions before her Honour, including in particular his primary written submissions which are before this Court. The greater part of his case below was the unsuccessful application for a writ of habeas corpus, which is not further pursued, and other judicial review grounds that were not pressed before her Honour. 6 The main aspect of the appellant's case on failure to comply with s 39(1) to the point of jurisdictional error, maintained on appeal, turned on the reasonableness of the appellant's opportunity to inspect, make submissions and present his case with respect to the following documents, to which he did not have access prior to the hearing: (a) supplementary "G" documents from his two prior visa cancellations in 2005 and 2009, that had been revoked, principally pertaining to the offences giving rise to those cancellations; and (b) documents produced to the Tribunal, apparently in early March 2020, in response to summonses to the Victoria Police, the Victorian Department of Justice and Community Safety and the Victorian Office of Public Prosecutions, including criminal records and witness statements standing behind the offences committed by the appellant after the second visa cancellation was revoked. 7 The above documents are those that J[104(b)], reproduced at [4] (with emphasis) above, is referring to. Those documents, summarised at [6] above, had been sent by the Minister to the prison on 17 March 2020, but were not on-delivered to the appellant. The fact that these documents had not been provided to the appellant was only discovered at the commencement of the Tribunal hearing on 1 April 2020. The Tribunal addressed this late provision of those documents by making orders for post-hearing written submissions, which her Honour found that the appellant had agreed to, expressly rejecting the proposition that what he said on that topic, as recorded on the Tribunal transcript, should not be taken at face value. The orders were for the appellant to provide any further submissions by the following Monday, 6 April 2020, and the Minister to respond by 9 April 2020. 8 After the appeal hearing, it emerged that there was another category of documents, comprising six pages of medical records from Loddon Prison, which had been produced in response to a 27 March 2020 Tribunal summons addressed to Justice Health within the Victorian Department of Justice and Community Safety, which were not before the primary judge, nor in the appeal book. The issues raised by those additional documents were the subject of post-hearing evidence and submissions and are addressed separately below at [44] to [65]. 9 On appeal, the appellant urges this Court to regard what was said by him in the context of his literacy limitations, apparently so as to cast doubt upon him genuinely seeking an opportunity to provide further submissions. However, having read the transcript in context, we decline to do so because we agree with the interpretation given by the primary judge, noted above. It is reasonably clear that the appellant gratefully accepted the offer of an opportunity to provide further written submissions as he sought, and subsequently took advantage of that opportunity. One aspect of one of those submissions was critical of what had taken place in the past, but upon careful reading it is readily apparent that, rather than being any criticism of the Tribunal, this was directed to the Minister's conduct, especially in the delegate making the decision not to revoke his visa cancellation while he was still serving a term of imprisonment. 10 The primary judge was satisfied that the approach taken by the Tribunal, of making provision for post-hearing submissions, did meet the requirements of s 39(1) as identified above. The appellant's case on appeal is that nothing less than adjourning the Tribunal hearing would suffice to meet the requirements of s 39(1). This is said to have been mandated so as both to enable him to inspect the additional documents, prior to any cross-examination of him upon any of them, and to make oral submissions about them at a subsequent Tribunal hearing. 11 Counsel for the appellant specifically disavows that there would have been any need for his client to provide any written submissions after an adjourned Tribunal hearing that he contends should instead have been ordered, and that, at such a further hearing, only oral submissions on that adjourned date would have been necessary. That submission is made in the context that the further written submissions provided by the appellant to the Tribunal on 6 April 2020, with the apparently considerable and valuable assistance from someone else in the same prison as the appellant, were found by the primary judge to be of a relatively high quality, an observation and conclusion with which we concur. 12 Nonetheless, the live question is not whether the alternative of an adjournment to address the additional documents might in some way have been better than the opportunity given to make further submissions, which seems doubtful, but rather whether the opportunity that was given, and the advantage that was taken of it, meant that the reasonable opportunity to present his case required by s 39(1) was not given, contrary to the conclusion reached by the primary judge. 13 We return to the competing characterisations of what took place below, when considering how the primary judge addressed and resolved them, and in considering the basis upon which it is asserted that her Honour erred. It is first necessary to address the at least implicit contention by the appellant that her Honour erred in the articulation of the legal framework in which the arguments advanced fell to be assessed and resolved.