The appeal
22 The Minister, for whom Ms Julia Lucas of counsel appeared, acknowledged that the appellant was not represented before the primary judge, but said that leave to raise new grounds of appeal in this court should be refused, in particular having regard to the existence of the separate and independent basis for the decision which forms the substance of the Minister's response to this appeal, citing VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 at [46]-[48]; Gupta v Minister for Immigration and Border Protection & Anor (2017) 255 FCR 486 at [80].
23 The appellant, who was represented by Mr Angel Aleksov of counsel, sought to argue four grounds of appeal, by an amended draft notice of appeal (not prepared by counsel) dated 1 March 2019, viz:
(1) The Tribunal breached s 359A of the Migration Act 1958 (Cth) in respect of criminal charges.
(2) The Tribunal failed to consider or understand the appellant's sister's evidence.
(3) The Tribunal failed to comply with s 359A(1) in relation to Ms Nevis' evidence.
(4) The primary judge wrongly accepted the submission of the Minister that he did not have to adduce evidence of information before the Tribunal from the appellant's former spouse to the Minister.
24 The Minister agreed that the Tribunal did not consider the appellant's sister's evidence, but submitted that it is a factual, not a jurisdictional, error. In that regard, Mr Aleksov submitted:
[T]he Tribunal took evidence from the appellant's sister … and thought that her evidence was that any family violence did not extend beyond emotional or psychological abuse. However, [the sister] gave evidence of the appellant's former spouse "hitting" the appellant. She also gave evidence of highly controlling behaviour by the spouse, including deprivation of food, insistence on the appellant sleeping outside, and threats to act in a way that would cause the appellant to lose his visa.
This evidence was central to the issues in the review and had to be considered and addressed specifically by the Tribunal in the performance of its review function. The failure to do so in a statement of reasons justifies an inference that the Tribunal failed to consider this evidence or failed to understand it. That is legal error.
(Citations omitted)
25 The Minister submitted, however, that in light of the Tribunal's finding that, because the appellant did not meet the evidentiary requirements of regs 1.24 and 1.25, it was bound to affirm the decision under review, any "independent" error in the Tribunal's reasons could not meet the threshold of materiality. In that regard, the Minister relied in particular on this passage from the judgment of the plurality in Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1, [2018] HCA 34 at [27]- [30]:
[27] Just as identification of the preconditions to and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute. The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.
[28] The common law principles which inform the construction of statutes conferring decision-making authority reflect longstanding qualitative judgments about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary. Those common law principles are not derived by logic alone and cannot be treated as abstractions disconnected from the subject matter to which they are to be applied. They are not so delicate or refined in their operation that sight is lost of the fact that "[d]ecison-making is a function of the real world".
[29] That a decision-maker "must proceed by reference to correct legal principles, correctly applied" is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.
[30] Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made.
[31] Thus, as it was put in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 32 [23]; [2015] HCA 51 "[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act". Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
(Citations omitted, emphasis added).
26 In short, the Minister's submission was that the threshold of materiality cannot be met in the event that the Tribunal failed to comply with any other statutory condition because complying with that condition could have made no difference to the decision that was made in the circumstances in which that decision was made.
27 Mr Aleksov submitted that there was "tension" between what the plurality in the High Court in Hossain said in the passages extracted above and its decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, and that I should consider referring the issue to a Full Court because of the "very difficult exercise of determining whether Hossain has impliedly qualified or overruled SAAP." I do not agree. In my view, no such issues arise and the passages extracted above, in particular the highlighted passage, is the relevant test by which this court is bound in a case such as this.
28 He also submitted that there was some realistic possibility that the Tribunal may have adjourned the review to enable the appellant to rectify his failure to produce anything to satisfy the requirements for a claim for non-judicially determined family violence. At one point in his oral submissions, counsel for the appellant went so far as to say that although "on 24 August 2017 - being the date of the decision … the Tribunal was bound not to be satisfied that the applicant met the criteria on that date. I accept that. But it was not bound to exercise power in the way that it did … One option was to delay to give the applicant … an opportunity [for an adjournment]". He also submitted that the idea of an adjournment was "very much on the cards".
29 I disagree. In my view, in light of the fact that the appellant had been reminded in correspondence in the most unambiguous terms of the need to provide three pieces of independent, corroborative evidence, the chances of being granted an adjournment to give him another chance would have been remote in the extreme. And I do not interpret the Tribunal's reasons (or what occurred afterwards when the appellant was given a chance to produce the intervention order) as suggesting that it imagined any proper basis for an adjournment. As the Tribunal noted, the appellant had been on notice of the evidentiary requirements he was required to meet since 2 August 2016, when they were provided with the delegate's decision. He was told again in the 9 August 2017 letter inviting him to attend the Tribunal hearing. And he was even given another opportunity to provide evidence of his claim that he had been the victim of family violence at the hands of his wife by the Tribunal, but as the Tribunal noted in its reasons (at [22]):
Even more recently, when the Tribunal issued its s 359(2) invitation, Mr Naikar has had that opportunity, but as I have said, through his former agents and still now he has not provided that evidence. It is my view, based on what is before the Tribunal, most unlikely that he would be able to obtain and provide all of that required evidence now…
30 But in any event, the Tribunal did provide the appellant with a chance to adduce further evidence following his representative's indication that there was an "intervention order" to be produced. The Tribunal gave the appellant 7 days to produce some evidence of it, but none was forthcoming - and, to this day, none has been produced. Nor was it suggested at the hearing that the appellant could produce a statutory declaration under reg 1.25, or any items of evidence in accordance with reg 1.24 and Ministerial Instrument IMMI 12/116 (like a medical or hospital report, a report or record of assault, a witness statement or a statutory declaration, a report from a family/domestic violence crisis centre or a statutory declaration made by a registered psychologist).
31 Ms Lucas submitted that the fact that the failure of the appellant to meet the evidentiary requirements of regs 1.24 and 1.25, and the error in relation to the evidence from the appellant's sister, were independent of each other is made clear in the Tribunal's reasons. The passage from [22] of the Tribunal's reasons, which is extracted above, continues after the ellipses included in that quote as follows: "… and as I have noted, there was, in any event, the discrepancy in his and his sister's oral evidence, which is noteworthy". The phrase "in any event" makes it clear that the Tribunal regarded the appellant's failure to provide the evidence, that he had been told on countless occasions he needed to provide, as being independent from what is now considered to be an error in relation to the sister's evidence.
32 But in any event, the question of whether an adjournment would have been granted in such circumstances invites the very type of conjecture the High Court has said repeatedly is impermissible. In Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1; [2018] HCA 34 at [15] and [36], the plurality said this:
[15] [The dissentient in the Full Court] indicated that, if she were wrong about the correct approach, she would have inclined to the alternative view that the two visa criteria in issue before the Tribunal were not entirely independent of each other. The connection between them which she postulated was that if the Tribunal had been satisfied that there were compelling reasons for not applying the criterion relating to the timing of the making of the application, the Tribunal, properly instructed, might have been persuaded to delay making its decision until such time as Mr Hossain was able to satisfy it that he had either paid his debt to the Commonwealth (as he had told the Tribunal he intended to do and as in fact he later did) or entered into an arrangement with the Commonwealth for payment to occur.
….
[36] The suggestion of [the judge] in dissent, that the Tribunal might have delayed making its decision to allow Mr Hossain time to meet the public interest criterion had it not erred in construing and applying the criterion relating to the timing of the making of the application, rises no higher than conjecture. The Tribunal was not asked to delay making its decision and, in any event, did not believe Mr Hossain when he said that he intended to pay his outstanding debt to the Commonwealth.
33 Justice Edelman said, to similar effect, as follows, at [77]-[78]:
[77] The appellant … submitted that the error of law made by the Tribunal in relation to criterion 3001 was not independent of the Tribunal's consideration of public interest criterion 4004. In oral submissions, the appellant submitted that it was possible to infer that absent the error of law by the Tribunal, and consistently with the requirements of public interest criterion 4004, the appellant would have repaid his debt or would have satisfied the Tribunal that he had made appropriate arrangements to repay the debt before the Tribunal gave its decision. This inference was said to arise from: (i) the fact of the amount of the debt, $7,404; (ii) the fact that the appellant's partner had an income; and (iii) the fact that the debt was repaid in May 2016.
[78] The error in this submission is that an assessment of whether an error was material, in the sense that it affected the exercise of power by depriving a person of the possibility of a successful outcome, does not take place in a universe of hypothetical facts. The materiality of the error is assessed against the existing facts before the Tribunal. Those existing facts were that the appellant had not repaid his debt nor had he made arrangements to do so. As the Tribunal observed, (i) these requirements had not been satisfied at the time of the hearing before it and (ii) nine days later, at the time of its decision, the appellant had not presented any evidence that he had repaid, or made arrangements to repay, the debt. There is no evidence that the appellant sought any adjournment of the hearing before the Tribunal, or that he requested any delay before the Tribunal delivered its decision, to file any evidence about repayment of his debt or arrangements he had made to repay his debt.
34 In my view, the appellant's submission on the adjournment question invites the same conjecture about a hypothetical universe. Accordingly, there is, in my view, no merit in the submission.
35 I will now deal briefly with proposed grounds one and three.
36 In my view, there is no merit in proposed ground one. The finding of the primary judge cannot, with great respect, be sustained, because as the Minister contended by his Notice of Contention dated 1 November 2018, the appellant himself volunteered to the Tribunal that his sponsor had obtained an intervention order against him for her protection and a court had convicted him of an offence in relation to her: see s 359A(4)(b) of the Migration Act: "This section does not apply to information … that the applicant gave for the purpose of the application for review…"
37 In my view, the Tribunal correctly found that, based on the appellant's concession about this criminal history at the hearing, it was unnecessary to put information to the appellant under ss 359A or 359AA of the Migration Act.
38 In any event, even if a failure to comply with s 359A occurred, as the primary judge found, the error is not material, for the reasons given above. It is telling in that regard that although the primary judge analysed the issue in terms of lack of utility, he was correct to conclude that any failure in the observance of those obligations could not have had a material effect on the outcome or occasioned any practical injustice: see the primary judge's reasons at [110].
39 Proposed ground three is that the Tribunal failed to comply with s 359A(1) in relation to the appellant's sister's evidence. But it is not necessary for the Tribunal to make findings with respect to each piece of evidence and the failure of the Tribunal to refer to each piece of evidence does not, in and of itself, constitute a legal error: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47]; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] and SZIAT v Minister for Immigration and Citizenship [2008] FCA 766 at [17].
40 But in any event, if there was an error, again, it was not material.
41 By proposed ground four, the appellant sought to contend that the primary judge was wrong to conclude that information relating to the appellant's sponsor (over which the Minister had foreshadowed a claim for public interest immunity at the hearing before the primary judge) was not relevant to the Tribunal's review.
42 I have, at the invitation of the parties, inspected the documents in respect of which the claim to public interest immunity is made. In my view, none of them has any relevance to whether the appellant was assaulted or abused by his wife. In any event, as the primary judge concluded, the documents were not relevant to the review, having regard to the fact that there was no reference to the documents in the Tribunal's reasons and the Tribunal was not under any obligation to notify the appellant of information which it had chosen not to take into account in the conduct of the inquiry (see Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [83]).
43 Accordingly, leave to the appellant to file and serve an Amended Notice of Appeal is refused and the appeal will be dismissed, with costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.