The third ground: whether the primary judge erred in failing to find that the Tribunal denied the appellant procedural fairness
118 The appellant's second and third grounds of appeal are related. The third ground asserts that the primary judge erred in failing to find that the Tribunal denied the appellant procedural fairness. On the way to rejecting that ground, her Honour construed para 9.3(1) of Direction 90 such that it does not permit a decision-maker to consider the impact on a victim of an offender being removed from Australia. The second ground of appeal challenges that construction.
119 Paragraph 9.3(1) of Direction 90 deals with, "Impact on victims", and requires that decision-makers:
…must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
120 The latter part of para 9.3(1), commencing with the word "where", indicates that the paragraph only has application where the non-citizen, "has been afforded procedural fairness". The purpose of that stipulation is not entirely clear given that Direction 90 can have no application to decisions made under s 501 of the Act to which the rules of natural justice do not apply (ss 501(3) and (3A)). In any event, there are obligations of procedural fairness imposed on the Minister and on the Tribunal in respect of a decision under s 501CA(4): see s 501CA(3); Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 (Nathanson) at [22]. Therefore, para 9.3(1) is applicable to such a decision.
121 In its consideration of para 9.3(1), the Tribunal accepted that, "relevant evidence before the Tribunal comes from the victim of the Applicant's most serious offending, W…". The Tribunal noted that Ms W had given positive evidence regarding the appellant, particularly as to his role as a father, a good person, and an important role model, and requested for the sake mainly of her elder daughter that the appellant be allowed to remain in Australia.
122 The Tribunal found that W's evidence to be "compromised" and "tailored" because of her close relationship with members of the appellant's family and gave her evidence "little weight". It may be observed that, despite the Tribunal treating Ms W's evidence as relevant to para 9.3(1), it made no reference to her evidence about the impact on her of the appellant being removed from Australia. Ms W had in fact given evidence that if the appellant were removed from Australia, she would suffer adverse financial and emotional impacts. In respect of the latter, she described the emotional consequences for her children resulting from separation from their father as "quite heartbreaking to watch", "heartbreaking to witness" and "painful to witness". The Tribunal's failure to advert to Ms W's evidence about the impacts upon her makes it unclear whether the Tribunal regarded that aspect of her evidence as "compromised" and "tailored".
123 The appellant submits that the Tribunal's finding was effectively that Ms W's evidence was not credible. He argues that such a finding was not obviously open on the known material and that the Tribunal's failure to advise him that it was minded to make such a finding denied him procedural fairness.
124 The primary judge's consideration of the ground of denial of procedural fairness commenced by observing that the previous iteration of para 9.3(1) of Direction 90 was para 14.4(1) of Direction 79, which required that, where relevant, a decision-maker must take into account:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour…
(Emphasis added.)
125 The primary judge observed that in CGX20 (No 2), Colvin J at [19] considered there to be an "obvious error in the formulation of cl 14.4". His Honour at [20] accepted the correctness of the Tribunal's construction of the paragraph as, "meant to direct the decision maker to consideration of the impact of revoking the cancellation rather than not revoking the cancelation". That construction was upheld on appeal in CGX20 FC at [23].
126 The primary judge also observed that in DKN20, the appellant had argued that the Tribunal had failed, under para 14.4 of Direction 79, to consider evidence of the impact of a non-revocation decision on Ms J, a victim of one of the appellant's offences. Ms J had urged that the appellant not be deported because of the effect it would have on their daughter. The Full Court, adopting Colvin J's reasoning in CGX20 (No 2), held at [37] that there was no scope under para 14.4 for the Tribunal to consider the impact on a victim of a decision not to revoke the cancellation of a visa.
127 The primary judge observed that the anomaly in para 14.4 of Direction 79 does not arise under Direction 90. Her Honour went to hold that:
It is clear from the recasting of cl 14.4 by s 9.3(1) of Direction 90 that it is the impact on a victim of the perpetrator remaining in Australia which is the matter to be considered, where relevant.
(Emphasis in original.)
128 The primary judge considered that no evidence of the impact on Ms W "as a victim of the family violence" committed by the appellant had been raised as a relevant issue. Her Honour noted that none of the evidence recited by the Tribunal raised such an issue. Her Honour considered that it was therefore "strictly unnecessary" for the Tribunal to consider the impact on Ms W "as a victim", and that it did not do so in "any real sense".
129 The primary judge concluded that in light of the absence of any evidence of the impact on Ms W "as a victim", the concerns expressed by the Tribunal as to whether W's evidence has been "compromised" or "tailored" must be construed as no more than concerns that there was no evidence given by Ms W, "about the impact on her as a victim of the family violence". Her Honour considered that the Tribunal's concerns could not be construed as an adverse finding of W's credibility in relation to the evidence that she did adduce. Her Honour held that it could not be concluded that the Tribunal's expression of its concerns about the absence of evidence of the impact on Ms W "as a victim" meant that the appellant was denied procedural fairness.
130 The primary judge noted that in the application for judicial review, the appellant had read an affidavit of Ms W deposing to what she would have said had she been put on notice that the Tribunal considered her evidence "compromised" or "tailored". Her Honour considered that nothing in Ms W's affidavit deposed to any impact on her "as a victim of family violence". The impact of the appellant's deportation on Ms W was described in the context of her losing a co-parent and the effect of his absence on her as a single mother and having to endure the emotional impact on her daughters of their father's absence. Her Honour stated that:
As has already been explained, s 9.3(1) is not apposite to these impacts - the impact on victims is only to be considered in circumstances where the offender is to be permitted to remain in Australia (CGX20 at [18]-[20]; DKN20 at [36]).
131 The primary judge held that, consequently, any procedural unfairness that may have occurred had not resulted in material error, nor any practical injustice.
132 The primary judge's reasoning had three elements. First, her Honour held that, on its proper construction, para 9.3(1) only allows a decision-maker to consider the impact on a victim of the perpetrator remaining in Australia, and does not allow a decision-maker to consider the impact on a victim of the perpetrator being removed from Australia. Secondly, her Honour held that para 9.3(1) applies only to the impact on the victim "as a victim", rather than, for example, the adverse impact on the victim of becoming a single parent, and there was no material before the Tribunal concerning any impact on Ms W "as a victim". Thirdly, any procedural unfairness was immaterial because the evidence Ms W might have given was irrelevant under para 9.3(1) in light of its proper construction. Her Honour held that it was, accordingly, unnecessary for the Tribunal to have considered the impact on Ms W of the appellant's removal from Australia and there could be no relevant procedural unfairness stemming from the Tribunal's consideration of Ms W's evidence.
133 We are respectfully unable to agree with the primary judge's construction of para 9.3(1) as applying only to the impact on a victim of the perpetrator remaining in Australia, and excluding consideration by a decision-maker of the impact upon a victim of an offender being removed from Australia. The narrowness of that construction is inconsistent with the broad language of the paragraph and with the wider context of Direction 90 and the statutory scheme.
134 Paragraph 9.3(1) requires that decision-makers must, "consider the impact of the section 501 or 501CA decision on members of the Australian community". The members of the Australian community are explained to include, but are not confined to, "victims of the non-citizen's criminal behaviour, and the family members of the victim or victims". The paragraph does not in its terms confine the "impact" that must be considered to consequences for members of the Australian community of the perpetrator remaining in Australia, and extends to consequences for members of the Australian community of the perpetrator being removed from Australia. The word "impact" is not limited to beneficial impacts for members of the Australian community of removal of the offender from Australia, but is apt to include adverse impacts upon them of such removal. In addition, the paragraph requires that what must be considered is, "the impact of the section…501CA decision" without distinguishing between a decision to revoke the s 501(3A) cancellation decision and a decision not to revoke. Therefore, impacts on members of the Australian community caused by a decision that will result in the offender either remaining in Australia or being removed from Australia fall to be considered under para 9.3(1).
135 The primary judge's construction of para 9.3(1) must mean either that impact on members of the Australian community of removal of an offender from Australia cannot be considered by a decision-maker; or that impact on members of the Australian community other than victims can be considered. Neither of those views is supported by the language of para 9.3(1), nor by the broader context.
136 In a given case, some members of the Australian community may be adversely affected by a decision allowing an offender to remain in Australia, while others may be adversely affected by the offender being removed. There is no obvious reason why the Minister, in making the direction contained in para 9.3(1), would intend that only the former, and not the latter, be considered under para 9.3(1).
137 Direction 90 introduced a primary consideration of, "whether the conduct engaged in constituted family violence". Paragraph 8.2(1) states that the government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia, while 8.2(3) sets out a number of factors relevant to consideration of the seriousness of the family violence engaged in. By the inclusion of para 9.3(1), the Minister must be understood to have recognised that an offence resulting in cancellation of a visa under s 501(3A) of the Act may well involve family violence, and that victim will often be an offender's spouse or partner. The Minister can also be understood to have recognised that members of the Australian community may be adversely impacted when an offender is removed from Australia, including in situations of family violence. For example, para 8.3 expressly accepts that it may be in the best interests of an offender's minor children for the offender to remain in Australia. A victim of a crime, including a victim of family violence, may also consider their own best interests to be served by the offender remaining in Australia, including for emotional or financial reasons. It would be anomalous to treat para 9.3(1) as though it requires a decision-maker to disregard the opinion of a victim that they would be adversely affected by the removal of an offender from Australia.
138 It may be noted that para 9.4.1(1) requires decision-makers to have regard, relevantly, to, "any impact of the decision on the non-citizen's immediate family members in Australia…". The primary judge's construction of para 9.3(1) would mean that if a spouse or partner of the offender is the victim of family violence offences but remained an immediate family member of the offender, the impact upon that victim of the offender being removed from Australia could still be taken into account under para 9.4. On the other hand, Direction 90 would not require such impacts on a victim who is no longer the offender's partner or spouse to be taken into account. That anomalous position tells against the construction favoured by the primary judge.
139 As has been observed, a direction made under s 499(1) of the Act cannot validly operate to fetter the broad discretion arising under s 501CA(4). Direction 90, while it stipulates factors that a decision-maker must or should take into account where relevant, does not in fact purport to restrict the range of factors that the decision-maker may take into account. Even if the primary judge's construction of para 9.3(1) as requiring the decision-maker to only consider impact on victims of the offender being permitted to remain in Australia were correct, it would be open to the decision-maker to take into account the impact upon a victim of an offender being removed from Australia outside Direction 90. Indeed, where such impact is clearly raised in the representations or other material, it may be required to be taken into account. The purpose of Direction 90 is stated in its Preamble as to "guide decision-makers" in exercising powers under s 501CA(4). The purpose of providing guidance tells against any suggestion that para 9.3(1) was deliberately drafted so as to prevent any impact on a victim of an offender being removed from Australia being taken into account, only for that impact to be considered in the exercise of the general discretion.
140 The primary judge's analysis, in our respectful submission, focuses excessively upon the language used in para 14.4 of Direction 79 and the way that language had been interpreted in decisions of this Court. It is the language of para 9.3(1) of Direction 90 in its context that must be construed. Para 9.3(1) cannot be regarded as a mere "recasting" of para 14.4: the language and context of the respective provisions is substantially different. If the Minister intended that para 9.3(1) be understood as referring only to, "the impact on a victim of the perpetrator remaining in Australia", then that is likely to have been directly indicated. Instead, the broad language of the provision tells against such a construction.
141 In our respectful opinion, contrary to the construction of the primary judge, para 9.3(1) of Direction 90 does not limit the decision-maker to only taking into account the impact on a victim of the offender being permitted to remain in Australia. The paragraph also allows the decision-maker to take into account impact on a victim, including adverse impacts, of the offender being removed from Australia.
142 The primary judge also considered that only impacts on a victim "as a victim" may be taken into account under para 9.3(1). Her Honour seems to have meant that only impacts on the victim in their condition or status as a victim may be considered. That would seem to include distress caused to a victim as a result of the offender being allowed to remain in Australia, but exclude, for example, impacts on a victim as a mother distressed by the emotional consequences for her children that would result from the removal of their father from Australia.
143 Such a construction is inconsistent with the language of para 9.3(1). That language merely refers to "victims", not to "victims as victims". It does not draw any distinction between beneficial or adverse impacts upon a victim from whatever decision is made. It does not distinguish between direct and indirect impacts. The language of the provision does not exclude consideration of impacts on a victim, as, for example, a spouse and mother who would be caused emotional distress or financial loss by the offender being removed from Australia.
144 Ms W's statutory declaration and her oral evidence clearly indicated that she would be caused emotional distress by the removal of the appellant from Australia. She described the emotional impact upon her of her children being separated from their father as "heartbreaking". Her evidence was also that removal of the appellant would cause her financial difficulty as a single parent. These were factors that were open for the Tribunal to take into account under para 9.3(1). Indeed, they were required to be taken into account since they were substantial matters that clearly arose on the material before the Tribunal and could not reasonably have been regarded by the Tribunal as irrelevant.
145 The Tribunal's reasons did not mention any of Ms W's evidence indicating she would be adversely impacted by the removal of the appellant from Australia. One of two inferences may be drawn: either the Tribunal overlooked that evidence; or it took that evidence into account but decided to accord it "little weight" along with other aspects of her evidence. In our view, the latter inference is the appropriate one since the Tribunal expressly recognised in respect of para 9.3(1) that, "the only relevant evidence before the Tribunal comes from the victim of the Applicant's most serious offending, W". The evidence of Ms W relevant to para 9.3(1) concerned the impacts of the appellant's removal from Australia upon her. Accordingly, it seems probable that the Tribunal did take into account her evidence of such impacts even though it omitted any specific reference to that evidence.
146 It was accepted by the Full Court in Nathanson v Minister for Home Affairs [2020] FCAFC 172; (2020) 281 FCR 23 at [46] and [125] that the Tribunal is required to provide procedural fairness in the conduct of its review of a decision under s 501CA(4) of the Act. In the appeal, the High Court proceeded on the basis that the Tribunal owed such obligations.
147 Procedural fairness requires that each party be given a reasonable opportunity to present their case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ); Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J). What will constitute a reasonable opportunity depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 552-553; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [26].
148 The appellant places particular reliance on SZBEL. In that case, in the course of rejecting the appellant's application for a protection visa, the Minister's delegate had accepted the accuracy of his account of two particular events. The Refugee Review Tribunal had not challenged the appellant's account of those events in the course of the conduct of the review, but ultimately found that account to be implausible.
149 The High Court at [29] cited the following passage from Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 with approval:
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.
(Emphasis added by High Court.)
150 The High Court held:
35 The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
…
47 …[T]here may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
151 The principles expressed by the High Court are equally applicable to a finding by the Tribunal in the conduct of a review of a decision under s 501CA(4) of the Act that the evidence of a witness giving critical evidence is not credible or embellished.
152 In the present case, the finding by the Tribunal that Ms W's evidence had been "compromised" or "tailored" amounted to a finding that her evidence concerning the impacts that would be caused to her by the appellant's removal from Australia was not credible. The delegate had not made any finding that the material contained in her statutory declaration was not credible. When Ms W gave oral evidence before the Tribunal, neither the Minister nor the Tribunal made any suggestion that her closeness to the appellant's family had caused her to "tailor" her evidence to support the appellant's case or that her evidence was in doubt. In these circumstances, the Tribunal's conclusion that Ms W's evidence was not credible was not obviously open.
153 Ms W's evidence can be described as "critical" or "dispositive" in the sense that, if accepted, it may have been of decisive importance. The appellant was entitled to proceed on the basis that Ms W's credibility was not in issue. Procedural fairness required the Tribunal draw to the attention of Ms W or the appellant that it had concerns about the credibility of her evidence.
154 In Nathanson, the Federal Court had accepted at first instance and on appeal that the Tribunal had denied the appellant procedural fairness by denying him an opportunity to address certain allegations of domestic violence, but held that the error was immaterial. In the High Court, the plurality explained at [33] that there will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The plurality accepted it to be extremely unlikely that the appellant could have said or done anything to avoid findings that the alleged incidents of domestic violence did occur. However, their Honours considered that, in the context of the decision being made by weighing a range of relevant factors under Direction 79, additional evidence and submissions directed to mitigating the significance of the evidence of domestic violence could realistically have affected the Tribunal's evaluative fact finding concerning the nature and seriousness of the appellant's conduct and, ultimately, its decision. There was no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair.
155 In this case, Ms W has deposed that if her attention had been drawn to the Tribunal's concerns about the credibility of her evidence, she would have explained that she "was not influenced by" the appellant's family and "would not tailor her evidence". There is a realistic possibility that the Tribunal might have accepted that explanation, might have given greater weight to her evidence and, ultimately, that the outcome may have been different. Accordingly, the denial of procedural fairness was material.
156 The primary judge erred in failing to find that the Tribunal denied the appellant procedural fairness.