Onyebuchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2020] FCA 1183 - FCA 2019 case summary — Zoe

CTHFCA

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

[2020] FCA 1183

Federal Court of Australia|2019-10-29|Before: Anderson J

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Source facts

Court

Federal Court of Australia

Decision date

2019-10-29

Before

Anderson J

Source

Original judgment source is linked above.

Judgment (40 paragraphs)

[1]

The Applicant's application is dismissed.
Insofar as the Applicant seeks relief in respect of the delegate's decision, that purported appeal is dismissed.
The Applicant will pay the First Respondent's costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

SUMMARY 1 Mr Onyebuchi (Applicant) was convicted of importing a commercial quantity of methamphetamine, and sentenced to imprisonment for 9 years. His visa was cancelled. The Minister's delegate decided not to revoke that cancellation. The Administrative Appeals Tribunal (Tribunal) affirmed that decision. The Applicant has applied to this Court for a review of the Tribunal's decision. 2 The Applicant says the Tribunal's decision should be set aside on the basis of (what can fairly be described as) some quite general "grounds". The Applicant was self-represented in this Court. Even reading the Applicant's purported grounds for their substance rather than their form, those purported grounds do not succeed. They must be rejected and the application must be dismissed. 3 Partly because the Applicant's asserted grounds for setting aside the Tribunal's decision were decidedly general, this judgment does not contain any elaborate elucidation of principle or detailed consideration of competing factual narratives. It involved the application of uncontroversial, settled principles to essentially uncontested facts. 4 In these circumstances, two functions of this judgment assume prominence. First, these reasons aim to set out how this dispute was "decided in accordance with [legal] rules" (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 278-9 (per McHugh JA)). Second, it outlines the basis for the decision in the hope that such a basis might provide "the foundation" for the decision's "acceptability" (ibid) and, in particular, convey to the Applicant how the court has dealt with his case and reached its decision: Justice Kiefel (as her Honour then was), "Reasons for judgment: objects and observations" (Speech delivered at Sir Harry Gibbs Law Dinner, University of Queensland, 18 May 2012). These are fundamental precepts of Australian law and they exist (in part at least) to afford appropriate regard to the Applicant and the Applicant's arguments in this Court (see Frederick Schauer, "Giving Reasons" Stanford Law Review (1995) 47 (4) 633 at 658). 5 It is that task that I now turn.

[6]

The application to this Court 12 On 4 December 2019, the Applicant, who is self-represented, filed a notice of appeal in this Court. The notice raises a single ground of appeal. That ground is stated to be "[a]s set out [in the notice of appeal] in the questions of law on precedents". Under the words "[q]uestions of law", the following text appears in the Applicant's notice of appeal: 1. The Administrative Appeals Tribunal's decision was unreasonable 2. The First Respondent [ie the Minister] did not properly apply s501CA and 501CA(4) of the Migration Act 1958. 3. The Administrative Appeals Tribunal failed to take relevant consideration [sic] into account. 4. There was insufficient evidence or no evidence to support various findings made by the Administrative Appeals Tribunal. 5. The First Respondent [ie the Minister] failed to properly exercise its discretion under s501CA and s501CA(4) of the Migration Act 1958. 6. The Administrative Appeals Tribunal's decision involved an error of law. 7. The Administrative Appeals Tribunal in making the decision did not comply with the rules of natural justice and/or the Applicant was denied procedural fairness. 13 For the purposes of this application for judicial review, given the Applicant is self-represented, I shall proceed on the basis that the grounds of appeal which the Applicant intends to rely upon are the seven identified matters set out above. 14 On 10 December 2019, the Applicant was removed from Australia for return to his country of birth, Nigeria. 15 On 10 December 2019, the Registry of the Federal Court emailed a copy of the notice of appeal to the Department of Home Affairs (Department). 16 On 4 February 2020, Mr Adam Cunynghame, a solicitor at Sparke Helmore Lawyers, the solicitors for the Minister, affirmed an affidavit which was filed on 4 February 2020. (I take it the affidavit contains a typographical error because on its face it purports to have been affirmed on 5 February 2020, but witnessed and lodged on 4 February 2020.) In that affidavit, Mr Cunynghame deposed that on 3 December 2019 the Department undertook a search of the Department's files for active litigation in relation to the Applicant. That search confirmed that the Department could not locate within the Department's files any active litigation in relation to the Applicant. 17 On 13 February 2020, the Applicant appeared by way of telephone at a first case management hearing concerning this proceeding. Ms Whitmore, a solicitor with Sparke Helmore, appeared on behalf of the First Respondent (Minister). I made various orders on that day concerning a timetable for the interlocutory steps to be completed such that the application for judicial review could be heard before me at 11.00 a.m. on 2 July 2020. 18 On 14 February 2020, my Chambers received an email from the Applicant in which he requested that I make an order referring his application for pro bono legal assistance. 19 On 19 February 2020, my Chambers wrote to the Applicant advising that I had determined that the Applicant's case was appropriate to be referred for pro bono assistance (Referral). Enclosed with that correspondence was a Referral Certificate dated 18 February 2020 made pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) (Rules). 20 On 12 June 2020, my Associate was informed that assistance to the Applicant had concluded in accordance with the Referral, with the Referral Certificate ceasing to have effect pursuant to rule 4.17(b) of the Rules.

[7]

Applicant's Submissions 21 The Applicant represented himself at the hearing of the purported appeal from both the delegate's decision and the Tribunal's decision. The Applicant appeared by way of telephone. The Applicant did not file any written submissions prior to the hearing. At the hearing, the Applicant in broad terms made the following main submissions. 22 First, it was said that the Tribunal did not give active intellectual consideration to the adverse human consequences of not revoking the mandatory cancellation of the Applicant's visa. The Applicant submitted that the Tribunal failed to take into account the serious consequences to him and his wife that would arise if he was returned to Nigeria. In particular, the Applicant stressed that his wife was undergoing procedures relating to fertility and had been under considerable stress. The Applicant submitted that his return to Nigeria was like imposing upon his wife and himself a second prison sentence. The Applicant said that he had been unable to obtain any work in Nigeria and was pleading for a second chance to return to Australia to live with his wife. 23 Second, the Applicant submitted that there is insufficient evidence upon which the Tribunal could have formed the view that he posed a danger to the Australian community. The Applicant pointed to the favourable findings made by the Tribunal in relation to the primary and other considerations in Direction 79 made under s 499 of the Migration Act (Direction 79). The Applicant submitted that it was unreasonable for the Tribunal to arrive at the decision not to revoke the mandatory cancellation of the Applicant's visa in light of the findings that it made. 24 Third, the Applicant submitted that he had been denied procedural fairness by the Tribunal. The procedural unfairness was said to arise because it was unfair for the Tribunal to conduct a hearing where the Applicant was not physically present in person at the Tribunal hearing but appeared by video-link. The Applicant conceded that his solicitor and counsel appeared in person before the Tribunal in Melbourne (the Applicant observed the hearing via video-link from a detention centre in Western Australia). The Applicant said that, as a result, the Tribunal's decision was affected by jurisdictional error.

[10]

The Minister's submissions as to the purported jurisdictional errors 27 The Minister contended that the Applicant had not identified any specific errors made by the Tribunal. It was said that the Applicant's notice of appeal advances a single "ground" that is "set out above in the question of law on precedents". The Minister also noted that the ground of appeal is unparticularised, and the Applicant had filed no submissions in support of his case. 28 The Minister acknowledged that the Applicant is self-represented and the Applicant should not be expected to articulate as clear or cogent a case as a lawyer might be able to do. Nevertheless, the Minister submitted it is not the Court's function to examine the material to identify an arguable error for the Applicant. Moreover, the Minister submitted that it is a relevant consideration that the Applicant has made what was said to be no real attempt to identify any particular error affecting the Tribunal's decision. The Minister submitted this is not a matter where the Court may seek to "distil the substance of the Applicant's case" from a "poorly-cast ground of review" (citing Singh v Minister for Immigration and Border Protection [2016] FCA 611; 240 FCR 1 at [34]-[35] and Maan v Minister for Immigration and Border Protection [2017] FCA 906; 253 FCR 564 at [44]). It was said that the Applicant had instead advanced no meaningful case of any kind. 29 The Minister submitted also that the Tribunal's decision is not affected by jurisdictional error. The Minister set out in detail the circumstances of the hearing before the Tribunal and an analysis of the Tribunal's Reasons. The Minister submitted that an appreciation of the following kinds of matters ensured no material jurisdictional error arose: (1) It was said that the Applicant was represented by both counsel and solicitors in the Tribunal. The Applicant filed a statement of facts, issues and contentions, as well as a reply to the Minister's statement of facts, issue and contentions. The Applicant filed statements from himself, his wife, and various members of the community. The Applicant filed a psychological report from a Dr Leah Stuckings. (2) The matter was heard on 17 October 2019 and 18 October 2019. The Applicant, and various witnesses, gave evidence at that hearing. On 29 October 2019, the Tribunal decided to affirm the decision under review and delivered reasons for decision (Tribunal's Reasons). (3) The Tribunal noted that there was no dispute as to the Applicant's criminal history, or that he did not pass the character test by reason of s 501(6)(a) (Tribunal's Reasons, [17]). The Tribunal identified the issue as being whether it was satisfied that there was another "reason" why the cancellation decision should be revoked. (4) The Tribunal had regard to Direction 79, to principles set out in that Direction (Tribunal's Reasons, [19]), and to requirements imposed on it by that Direction (Tribunal's Reasons, [20]-[21]). The Tribunal structured its reasons by reference to the primary and other considerations set out in that direction. (5) The Tribunal identified the nature of the Applicant's offending, and characterised it as very serious (Tribunal's Reasons, [26]; see also cll 13.1(1) and (2)(a) and 13.1.1 of Direction 79). The Tribunal noted that its conclusion in this respect was reinforced by the significant sentence that the Applicant received (Tribunal's Reasons, [27] and [30]-[32]), and the sentencing comments of the Court of Appeal of the Supreme Court of Queensland which acknowledged "that the Applicant's offending was serious, that methamphetamine causes enormous damage in the community, that the Applicant's role in the offending was not that of a courier, although he was not the principal, and that his participation was deliberate, planned and was motivated by profit" (Tribunal's Reasons, [28]). The Tribunal also found that the offending affected vulnerable members of the community, being addicted drug users (Tribunal's Reasons, [29]). (6) In addressing the risk to the Australian community (see cll 13.1(2)(b) and 13.1.2 of Direction 79), the Tribunal considered factors that had been identified by the Applicant as supporting the conclusion that he posed a low level of recidivism (Tribunal's Reasons, [34]). The Minister placed particular emphasis on the Tribunal's conclusions at [46]-[47] (which are extracted later in these reasons). (7) The Tribunal found that protection of the Australian community weighed heavily against revoking the cancellation decision (Tribunal's Reasons, [48]). (8) The Tribunal identified four minor children in Australia affected by the decision, being two nephews of the Applicant (Tribunal's Reasons, [49]-[52]) and two children of the Applicant's wife's friend (Tribunal's Reasons, [53]-[54]). The Tribunal found that it was in the best interests of each of these children to revoke the cancellation decision (Tribunal's Reasons [56], cf. cl 13.2 of the Direction), including insofar as a decision not to revoke the cancellation decision might influence a decision of the Applicant's wife to leave Australia in order to stay with the Applicant (Tribunal's Reasons, [52]-[53], [55]). The Tribunal considered that this weighed in favour of revocation of the cancellation decision (Tribunal's Reasons, [57]). (9) The Tribunal engaged in a detailed discussion of case law bearing on how it is to go about the task of assessing the "expectations of the Australian community" so as to comply with cl 13.3(1) of Direction 79 (Tribunal's Reasons, [58]-[75]). It was said that the Tribunal paid due regard to the Government's views, noting the very serious nature of the Applicant's offending (Tribunal's Reasons, [75]). The Tribunal had regard to a range of other factors in assessing the weight to give to this factor (Tribunal's Reasons, [74]). Taking those matters into account, the Tribunal found that the "Australian community expectations consideration" weighed heavily against revoking the cancellation decision (Tribunal's Reasons, [75]). (10) The Tribunal considered the strength, nature and duration of the Applicant's ties to Australia (Tribunal's Reasons [81]-[110]; see cl 14.2 of Direction 79). The Tribunal considered the fact that the Applicant had resided in Australia for 8 years, while noting that a significant portion of that time had been spent in custody or detention (Tribunal's Reasons, [83]). The Tribunal accepted that the Applicant had established significant family and social links in Australia (Tribunal's Reasons, [84] ff). The Tribunal accepted that an adverse decision would have an adverse impact on this network (Tribunal's Reasons, [103]-[110]). In particular, the Tribunal accepted that the Applicant and his wife were in a loving marriage (Tribunal's Reasons, [86]-[87]), and recognised the impact that a decision not to revoke the cancellation decision would have on her (including whether or not she stayed in Australia or moved with the Applicant) (Tribunal's Reasons, [88]-[101]). The Tribunal found that an adverse decision would have a "very significant and deep impact" on the Applicant's wife, and the "significant impact that she would suffer and challenges that she would face regardless of the choice she made" (Tribunal's Reasons, [100]). The Tribunal accepted that an adverse decision would also have an adverse impact on the Applicant's wife's family and friendship group (Tribunal's Reasons, [102]). The Tribunal accepted that this consideration weighed heavily in favour of revoking the cancellation decision (Tribunal's Reasons, [110]). (11) It was said that the Tribunal essayed a ranged of concerns raised by the Applicant as to the impediments that he would face if removed to Nigeria, both in establishing himself and maintaining basic living standards (Tribunal's Reasons ,[114]-[129]; cl 14.5 of the Direction). The Tribunal accepted that the extent of various impediments did weigh in favour of revoking the cancellation decision (Tribunal's Reasons, [129]). (12) The Minister's submissions emphasised the conclusion reached by the Tribunal (set out at [131]-[132] of the Tribunal's Reasons (and extracted later in this judgment)). 30 Having set out these matters, the Minister asserted that there was an absence of any meaningful ground advanced by the Applicant. The Minister submitted that in those circumstances the Tribunal's decision was not affected by any obvious or apparent jurisdictional error.

[13]

Submissions on the consideration of representations by the Applicant 33 Second, the Minister submitted that the Tribunal was required to give active intellectual consideration to representations that are clearly made by an applicant; particularly given that an adverse decision may have serious human consequences: Navoto v Minister for Home Affairs [2019] FCAFC 135 (Navoto) at [87]. The Minister identified that representations "are a mandatory relevant consideration as a whole" but "not as to the individual statements contained in the representations": Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 (Buadromo) at [41]. 34 (The Minister also referred to Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523 at [139]; Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 (Viane) at [23]-[24], [66]-[75]; Hooton v Minister for Home Affairs (2018) 264 FCR 517 at [64]; Hay v Minister for Home Affairs [2018] FCAFC 149 at [9]-[11]; Navoto at [84]; Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 at [121]-[123], [153]; GBV18 v Minister for Home Affairs [2020] FCAFC 17 (GBV18) at [31(a)]; EVK18 v Minister for Home Affairs [2020] FCAFC 49 (EVK18) at [10].) 35 Third, the Minister submitted that a finding that the Tribunal has not engaged in a meaningful or active intellectual process will not lightly be made: GBV18 at [32(g)]; EVK18 at [13]. 36 Fourth, the Minister submitted that "[t]he task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution": AXT19 v Minister for Home Affairs [2020] FCAFC 32 (AXT19) at [56]. In this respect, the Minister referred to the Full Court's statement in EVK18 that the "balance that is sought to be struck is to recognise that a 'representation' which has been made pursuant to s 501CA(3) may contain a myriad of different claims and assertions and should not be dissected for the purpose of forensically and opportunistically subsequently seizing upon a failure to address a particular 'statement' that may be found within a representation as exposing legal error": EVK18 at [14]. The Minister contended that what amounts to adequate consideration by the Minister (or Tribunal) may be affected by whether the representation involves little more than an assertion, or is supported by particular factual material: EVK18 at [24]-[27]. 37 The Minister submitted that, informed by those principles, it is not apparent that the Tribunal failed to consider any representation. It was said that none had been identified by the Applicant, and nor was it apparent that the Tribunal failed to comply with Direction 79, which required it to consider certain matters.

[17]

Can the Applicant appeal directly to this Court from the delegate's decision? 43 It seems this issue arises because the Applicant's notice of appeal filed on 2 December 2019 appears to have sought an order that the "[t]he First Respondent's decision made on 2 August 2019 … be quashed". The First Respondent in this proceeding is the relevant Minister. However, I have not been provided with any material which would suggest that the Minister made a relevant decision on 2 August 2019; rather, it appears a delegate of the Minister made a decision on 2 August 2019. 44 The question therefore arises whether the Applicant can appeal to this Court from that decision (notwithstanding that the Tribunal has reviewed and affirmed that decision and judicial review of the Tribunal's decision is sought as well). 45 Now, before resolving that issue, it should be said that there was very limited argument on the question. The Minister's written submissions merely asserted that this Court "has no jurisdiction of any kind - whether by way of appeal, or judicial review - to grant relief with respect to the delegate's decision". No authority was cited for that proposition. A review of the transcript indicates the Minister's oral submissions did not engage with the question. (In fairness to the Minister, the hearing of this matter became somewhat focussed on mattes raised by the Applicant for the first time at the hearing.) The Applicant's oral submissions unsurprisingly did not deal with the issue - that was to be expected given questions of jurisdiction in administrative law are complex matters and there is no indication that the Applicant is legally trained. 46 In those circumstances, I can merely say that on the material placed before me the Applicant has not satisfied me that the Applicant can appeal to this Court concerning the relevant delegate's decision in the circumstances of this case. This is so for two main reasons. 47 First, s 476A of the Migration Act is relevant to the jurisdiction of the Federal Court. It provides the following: (1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if: (a) the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or (b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or (c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or (d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975 (underlining added). 48 A "migration decision" is defined in s 5 of the Migration Act by reference to certain other types of decisions which are defined in ss 5E, 474 and 474A. 49 Second, it should be apparent that none of these provisions obviously confer jurisdiction in relation to a direct appeal from a decision of a delegate of a Minister, in circumstances where the Administrative Appeals Tribunal has reviewed the delegate's decision. 50 As a result, I am not presently satisfied that order 1 of the "Orders sought" in the Applicant's notice of appeal has a proper jurisdictional basis.

[18]

Can the Applicant appeal under s 44 of the AAT Act? 51 The Applicant's attempt to impugn the decision of the relevant delegate can therefore be placed to one side for the time being. In addition, the Minister's submission that this Court has no jurisdiction to entertain an appeal under s 44 of the AAT Act from the decision of the Tribunal is also correct. This is so for three reasons. 52 First, a basis for the Court's jurisdiction is not identified in the Applicant's notice of appeal. The Applicant did not provide any submissions as to the Court's jurisdiction. 53 Second, it is in these circumstances necessary to consider the relevant statutory framework. Section 44(1) appears in Part IVA of the AAT Act. It provides that "a party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding". However, Part IVA, in which s 44 appears, "does not apply to an application in relation to, or a proceeding for the review of" "a privative clause decision", "a purported privative clause decision" or "an AAT Act migration decision", as those terms are defined in the Migration Act (AAT Act, s 43C). 54 As to these terms, "a privative clause decision" is defined in s 474(2) of the Migration Act. That section provides that "a privative clause decision" is "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under [the Migration Act] or under a regulation or other instrument made under [the Migration Act] (whether in the exercise of a discretion or not), other than [certain decisions referred to in ss 474(4) or 474(5)]" (Privative Clause Decision). 55 A "purported privative clause decision" is defined in s 5E of the Migration Act. That section provides that a "purported privative clause decision" is "a decision purportedly made, proposed to be made, or required to be made, under [the Migration Act] or under a regulation or other instrument made under [the Migration Act] (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not … a failure to exercise jurisdiction [or] an excess of jurisdiction … in the making of the decision" (Purported Privative Clause Decision). 56 An "AAT Act migration decision" is defined in s 474A of the Migration Act. There was no submission that it is, and it does not appear to be, relevant to this application. 57 Third, while there was no argument on the question at the hearing of this matter, the Tribunal's decision concerning the Applicant, without more, would appear prima face to be a decision which is responsive to the definitions of a Privative Clause Decision or a Purported Privative Clause decision. In these circumstances, and on the basis of the submissions to this Court, s 43C of the AAT Act appears to have removed the relevant statutory basis provided for an "appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal" (see AAT Act, s 44(1)). As a result, I am not presently satisfied that s 44 of the AAT Act provides a proper basis for the Court's consideration of the Applicant's notice of appeal.

[19]

Can the Applicant's notice of appeal be treated as a relevant application for judicial review? 58 The Minister's written submissions identified that the Applicant's notice of appeal could be treated as an application for judicial review of the Tribunal's decision under s 476A(1)(c) of the Migration Act. The Minister's submissions cited FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 310 ALR 1 and Luy v Minister for Immigration and Border Protection [2015] FCA 405 (Luy) as having proceeded on this basis. 59 However, those decisions appear to have proceeded under s 476A(1)(b), namely the provision which confers certain original jurisdiction in relation to a "migration decision" that is a "privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500" of the Migration Act. Section 500 enables applications to be made to the Tribunal for review of certain decisions, including "decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa" (Migration Act, s 500(1)(ba)). 60 As the Minister identified, in FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754 (FTZK), French CJ and Gageler J stated the following at [3]: … The [relevant] proceeding in the Federal Court invoked the original jurisdiction conferred upon that Court by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and designated in that section as an "appeal". The Full Court held that the appeal was incompetent by reason of s 483 of the Migration Act. [When FTZK was handed down, s 483 provided that "section 44 of the Administrative Appeals Tribunal Act 1975 does not apply to privative clause decisions or purported privative clause decisions". This is now relevantly reflected in s 43C of the Administrative Appeals Tribunal Act 1975 (Cth).] The Federal Court, however, has original statutory judicial review jurisdiction under the Migration Act equivalent to that conferred on the High Court by s 75(v) of the Constitution [citing Migration Act, s 476A(1)(b)]. The Minister conceded that the appeal could be treated as having invoked that jurisdiction or that the [relevant] originating process could be amended accordingly. (Certain citations omitted.) 61 In Luy, North J also stated that, given the relevant applicant in that matter was not legally represented, it should be accepted that the applicant there properly invoked s 476A(1)(b) of the Migration Act. 62 In these circumstances, I am willing to proceed on the basis that the Applicant's notice of appeal properly invoked s 476A(1)(b) of the Migration Act. 63 However, that raises a further issued identified by the Minister: for the Applicant to proceed under s 476A(1)(b) of the Migration Act, the Applicant would require an order under s 477A(2). Such an order would be needed to extend the time within which the Applicant can apply for judicial review of the Tribunal's decision. This is because s 477A(2) relevantly provides the following: (1) An application to the Federal Court for a remedy to be granted in exercise of the court's original jurisdiction under paragraph 476A(1)(b) … in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order. (Emphasis added.) 64 As to this provision, the Tribunal's decision was made on 29 October 2019. Under s 477A, any application was therefore required to be made within 35 days of the Tribunal's decision - that is, by in or around 3 December 2019 (see ss 477A(1) and (3), read with s 477(3)(a)). The Applicant did not lodge his notice of appeal with this Court until 4 December 2019. 65 That position can be accepted for present purposes. In this respect, the Applicant wrote to my Associate on 3 July 2020 and provided certain documents. The Applicant stated that he believed the application was accepted on 3 December 2019 at 4:27pm. The Applicant indicated that a certain facsimile machine at a relevant detention centre was inoperative at the relevant time and it appears this may have impacted the Applicant's ability to file the required materials on time. Given the very minimal delay involved in this case, I am satisfied that this written explanation sufficiently addresses the matters required by s 477A(2)(a). 66 In these circumstances, I am also satisfied of the requirement in s 477A(2)(b) and I would exercise my discretion under s 477A(2) to extend the relevant 35 day period so that the Applicant's notice of appeal was filed within time. This is appropriate given the Applicant is self-represented. It is in the interests of justice to put to one side the procedural irregularities in the documents filed by the Applicant and to deal with the substance of the Applicant's complaint as can be broadly gleaned from the documents which he has filed and the oral submissions which the Applicant made at the hearing. 67 I will therefore treat the Applicant's notice of appeal as if it were an application for judicial review of the Tribunal's decision under s 476A(1)(b) of the Migration Act. The Minister also accepted that course was appropriate in the circumstances.

[20]

initial assessment of THE generalised GROUNDS 68 As I have stated above, the Applicant's notice of appeal purported to raise the following general issues or grounds: (1) Ground 1: it was said that the Tribunal's decision was unreasonable (the Unreasonableness Ground); (2) Purported Ground 2: it was said that the First Respondent - ie the Minister - did not properly apply ss 501CA and 501CA(4) of the Migration Act. For the reasons I have set out above, I am not satisfied that the Applicant can apply directly to this Court in order to impugn the decision of the Minister's delegate. However, I have read this ground for its substance rather than its form: it appears to contemplate that the Tribunal did not properly apply the relevant statutory provisions, but the only basis identified for that purported misapplication was the other generalised grounds contended by the Applicant. As a result, I have treated this ground as in substance a reiteration (by way of different language) of the other alleged grounds; (3) Ground 3: it was said that the Tribunal failed to take relevant considerations into account (the Relevant Considerations Ground); (4) Ground 4: it was said that there was insufficient evidence or no evidence to support "various findings" made by the Tribunal (the Inadequate Evidence Ground); (5) Purported Ground 5: it was said that the First Respondent - ie the Minister - failed to properly exercise the discretion under s 501CA and s 501CA(4) of the Migration Act. As I have stated above, I am not satisfied that the Applicant can apply directly to the Court to impugn the decision of the Minister's delegate in the circumstances of this case. I have treated this ground in the same manner in which I have treated purported ground 2 (referred to above); (6) Purported Ground 6: it was said that the Tribunal's decision "involved an error of law" (the Error of Law Ground). The Applicant's submissions did not identify what particular legal source used by the Tribunal was erroneous, how the Tribunal's use of any particular legal source was attended with error, or otherwise what legal error arose. Where a purported ground of review is expressed at a very high level of generality without particularisation (and, for what it is worth, I am not sure a bare assertion that there was "an error of law" could be put at a much higher level of generality), it is rare that the purported ground will enjoy any, let alone reasonable, prospects of success (see eg BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 (BHK15)). I am afraid that it is not part of the proper exercise of the judicial role for me to attempt to find jurisdictional error on the Applicant's behalf (see eg BHK15 at [15]). That would be problematic for a number of reasons. By way of example, it would place me too close to the position of an advocate for one of the parties, and not an independent and impartial adjudicator of the parties' competing claims. However, I have reviewed the materials provided to this Court by the Applicant and the submissions of the Minister, who has an obligation to act as a "model litigant". (Such obligations include a duty to not take "advantage of a claimant who lacks the resources to litigate a legitimate claim": see Legal Services Directions 2017 (Cth), Schedule 1, Appendix B.) Based on those materials, I am afraid I am still not in a position even to "paraphras[e] with the concurrence of the parties" my own "fair reading" of the "poorly-cast ground of review" to the effect that that the Tribunal's decision involved an "error of law" (Singh v Minister for Immigration and Border Protection [2016] FCA 611 (Singh) at [35]). As a result, insofar as there is a ground raised by the Applicant's assertion that the Tribunal's decision "involved an error of law", that ground does not succeed. I do not consider it further in these reasons; (7) Ground 7: finally, it was said that the Tribunal, in making the relevant decision, did not comply with the rules of natural justice and/or the Applicant was denied procedural fairness (the Procedural Fairness Ground). 69 This initial assessment leaves for consideration the Unreasonableness Ground, the Relevant Considerations Ground, the Inadequate Evidence Ground, and the Procedural Fairness Ground. I consider these matters in turn. In doing so, I have approached these purported grounds on the basis that I should give them a "fair reading" (notwithstanding that they are poorly-cast), I should attempt to "distil the substance of the applicant's case from the form of words that the applicant has employed", and I should proceed on the assumption that the Applicant has "alleged that the errors complained of were jurisdictional" (Singh at [35]-[36]). This type of approach can be employed when an applicant is self-represented.

[22]

Migration Act 1958 (Cth) 71 Section 501(1) of Migration Act provides that "[t]he Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test". The Migration Act relevantly provides that "… a person does not pass the character test if … the person has a substantial criminal record" (Migration Act, s 501(6)(a)). A person is deemed to have a "substantial criminal record" if "the person has been sentenced to a term of imprisonment of 12 months or more" (Migration Act, s 501(7)(c)). 72 Section 501(3A) provides that the Minister "must cancel a visa that has been granted to a person if … the Minister is satisfied that the person does not pass the character test because of the operation of … s 501(a) (substantial criminal record), on the basis of [ss 501(7)(c)]" (Migration Act, s 501(3A)). 73 Section 501CA of the Migration Act 1958 (Cth) relevantly provides that: (1) [Section 501CA] applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. (Bold and italicised text in the original.) 74 Applications "may be made to the … Tribunal for review of … decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa" (Migration Act, s 500(1)(ba)). The "Minister may give written directions to a person or body having functions or powers" under the Migration Act "if the directions are about … the performance of those functions" or "the exercise of those powers" (Migration Act, s 499(1)). A person or body "must comply" with such a direction (Migration Act, s 499(2)).

[23]

Direction 79 75 In this respect, the relevant Minister has given a written direction, Direction 79. Direction 79 provides (among other things) the following. 76 The purpose of Direction 79 is to "guide decision-makers [such as the Administrative Appeals Tribunal] performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act" (Direction 79, cl 6.1(4)). 77 Direction 79 sets out certain principles. It provides among other things that "[t]he Australian community expects that the Australian Government can and should … cancel [non-citizens'] visas … if they commit serious crimes in Australia or elsewhere" (Direction 79, cl 6.3(2)). "A non-citizen who has committed a serious crime, … particularly against women or children or vulnerable members of the community …, should generally expect to … forfeit the privilege of staying in … Australia" (Direction 79, cl 6.3(3)). "In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious … that any risk of similar conduct in the future is unacceptable", and "even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa" (Direction 79, cl 6.3(4)). 78 "Informed by [these] principles", the Tribunal "must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked" (Direction 79, cl 7(1)(b)). "In deciding whether to revoke the mandatory cancellation of a non-citizen's visa", the relevant "primary considerations" are the "[p]rotection of the Australian community from criminal or other serious conduct", "[t]he best interests of minor children in Australia" and the "[e]xpectations of the Australian community" (Direction 79, Part C, cl 13(2)). 79 Direction 79 provides that "[r]emaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community" (Direction 79, cl 13.1(1)). Direction 79 expressly states that, "[w]hen considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens" (Direction 79, cl 13.1(1)). 80 Direction 79 also directs that "[d]ecision-makers should also give consideration to … [t]he nature and seriousness of the non-citizen's conduct to date" and "[t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct" (Direction 79, cl 13.1(2)). "In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including … [t]he principle that crimes committed against vulnerable members of the community … are serious" (Direction 79, cl 13.1.1(1)(c)). "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively … [t]he nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct" and the "likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending …" (Direction 79, cl 13.1.2(1); emphasis added). 81 It was these statutory directions which governed the decision concerning the Applicant. They were to be applied to the matters presented to the Tribunal by the Applicant and the Minister, and, to a large degree, they govern consideration of the grounds of review raised by the Applicant.

[26]

The Tribunal's reasoning 85 In these circumstances, it is necessary to assess the Tribunal's relevant process of reasoning. That reasoning can be adequately summarised by reference to the following parts of the Tribunal's Reasons: 26. The drugs involved in the applicant's offending were methamphetamine, otherwise known by its street name "Ice". The applicant was involved in aiding and abetting an attempt to import almost 1kg of Ice with an estimated street value of between $673,000 to $2.02 million. The Tribunal is satisfied that in light of the devastating impact this type of drug is known to have on the users, as well as their families and the broader community, and the very significant quantities involved, the nature of the applicant's offence must be viewed as being very serious. … 32. While the Tribunal acknowledges that the maximum penalty for the offence for which the applicant was convicted is life imprisonment and that the sentence imposed unquestionably involved an element of general deterrence, on any objective assessment a sentence of nine years imprisonment for a first offence is a very significant term of imprisonment and one which reflects a very serious offence. … 40. The Tribunal accepts that specific circumstances were present at the time the applicant committed the offence that no doubt contributed to his behaviour … … 43. However, notwithstanding the applicant's stated determination to effectively manage pressures in the future, the Tribunal also recognises that the capacity for the applicant to effectively manage such pressures again in the future has not yet been tested outside of a prison or detention environment. Given that reality, the Tribunal is satisfied that there must remain some risk that, notwithstanding his stated determination, the applicant might not manage such pressures effectively and that therefore this must present some risk of the applicant reoffending. 44. The Tribunal has carefully considered the report of Dr Stuckings and of course had the benefit of hearing from her directly at the hearing. In Dr Stuckings report, which was reinforced through her evidence at the hearing, Dr Stuckings concludes that the applicant has displayed insight into the nature of his offending behaviour, has expressed remorse for that behaviour and assesses the applicant to be at "very low" risk of reoffending … 46. Having regard to all of the evidence before it, including Dr Stuckings' evidence, and acknowledging her findings in relation to risk as set out above, the Tribunal is satisfied that the risk of the applicant reoffending is low. However, the Tribunal is mindful of the fact that the applicant has not yet been tested outside of the prison or detention environment and for this reason the Tribunal is not satisfied that the risk of the applicant reoffending can be considered to be either minimal or trivial … [T]he Tribunal accepts that the applicant has an excellent record of behaviour while in prison and detention, however this is not substitute for being tested outside of a prison or detention setting. It is for this reason that the Tribunal is not satisfied that the risk of the applicant reoffending again is minimal or trivial. 47. In this context, the Tribunal is very mindful of the acknowledgement in the Direction that in certain circumstances the nature of the offending may be so serious that any risk of it being repeated represents an unacceptable risk of harm to the Australian community. The Tribunal is satisfied that this is such a case. There is no question in the mind of the Tribunal that the applicant's offending was of a very serious nature and that if this type of offending, were to be repeated again in the future, has the potential to have a devastating impact on individuals and families, as well as very serious consequences for the broader community. For these reasons, the Tribunal is satisfied that the risk of the applicant reoffending and the potential harm that that could cause to the Australian community is unacceptable. 48. Having regard to the serious nature of the applicant's offending and the unacceptable risk of future harm to the Australian community, the Tribunal finds that the protection of the Australian community consideration weighs heavily against revoking the mandatory cancellation of the applicant's visa. … 57. … [t]he best interests of minor children in Australia consideration weighs in favour of revoking the mandatory cancellation of the applicant's visa. … 75. However, having had regard to the Government's stated views in respect of the expectations of the Australian community as set out in paragraph 13.3(1) of … Direction [79], and noting the very serious nature of the applicant's offending as well as the Tribunal's conclusion that the applicant continues to represent an unacceptable risk of harm to the Australian community, the Tribunal finds that the Australian community expectations consideration weighs heavily against revoking the mandatory cancellation of the applicant's visa. … 100. Having considered all of the evidence before it, the Tribunal is satisfied that a decision to not revoke the cancellation of the applicant's visa would have a very significant and deep impact on [the Applicant's wife]. The Tribunal acknowledges her deep commitment to her husband and the extraordinarily difficult position such a decision would put her in. The Tribunal also acknowledges the significant impact that she would suffer and challenges that she would face regardless of the choice she made, consistent with the evidence she gave … [T]he Tribunal finds that the strength, nature and duration of ties consideration weighs heavily in favour of revoking the mandatory cancellation of the applicant's visa. … 129. [T]he Tribunal is satisfied that the extent of impediments if returned consideration weighs in favour of revoking the cancellation of the applicant's visa. (Emphasis added.) 86 These extracts can fairly be described as the Tribunal's intermediate conclusions or assessment as to certain of Direction 79's considerations. They were based on a comparatively fulsome consideration of the relevant evidence conducted by the Tribunal. The Tribunal then evaluated or synthesised those considerations as a whole, as follows (at [131]-[132]): … The Tribunal acknowledges that while the risk of the applicant reoffending is low the Tribunal is not satisfied for the reasons stated that the risk is minimal or trivial. In those circumstances the Tribunal is satisfied that the applicant continues to represent an unacceptable risk of harm to the Australian community and that therefore the protection of the Australian community consideration weighs heavily against revocation. The Tribunal acknowledges that in the circumstances the expectations of the Australian community consideration also weighs heavily against revocation. The Tribunal has been very mindful of the significant ties the applicant has to the Australian community, in particular through his wife, her family and his broader support network. The Tribunal acknowledges the very significant consequences that a decision to not revoke the cancellation of the applicant's visa will have for the applicant's wife and for the reasons stated has formed the view that the strength, nature and duration of ties consideration weighs heavily in favour of revocation. The Tribunal also acknowledges that the interests of minor children consideration, the impact on Australian business interests consideration and the impediments if removed consideration all weigh in favour of revoking the mandatory cancellation of the applicant's visa. Having carefully weighed all of these considerations, the Tribunal is satisfied that the overall balance weighs in favour of a decision to not revoke the mandatory cancellation of the applicant's visa. (Emphasis added.)

[27]

An assessment of the Tribunal's reasoning 87 The following is apparent from these extracts. First, the Tribunal concluded that the Applicant posed a risk of reoffending, albeit the risk was low (Reoffending Risk Conclusion). 88 Second, the Tribunal concluded that the risk of reoffending was unacceptable given the serious nature of the Applicant's offence (Unacceptable Risk Conclusion). 89 Third, the Tribunal concluded that the "expectations of the Australian community consideration" "weighed heavily" against revocation (Community Expectations Conclusion). 90 Fourth, it was acknowledged that a decision to not revoke the cancellation of the Applicant's visa would have significant consequences for the Applicant's wife and "the strength, nature and duration of ties consideration" weighed heavily in favour of revocation. The Tribunal also acknowledged that the "interests of minor children consideration", the "impact on Australian business interests consideration" and the "impediments if removed consideration all weighed in favour of revocation" (Favourable Matters Conclusion). 91 Fifth, weighing the Reoffending Risk Conclusion, the Community Expectations Conclusion and the Favourable Matters Conclusion, the Tribunal concluded that "the overall balance" was said to weigh in favour of not revoking the mandatory cancellation of the Applicant's visa (Balancing Conclusion). 92 Evidently, the Applicant does not challenge the Favourable Matters Conclusion and it would not advance the Applicant's case to do so. It appears the Applicant takes issue with the Reoffending Risk Conclusion, the Unacceptable Risk Conclusion and the Balancing Conclusion. However, there is no jurisdictional error arising in the reasoning which underpins these conclusions. This is so for the following reasons. 93 As to the Reoffending Risk Conclusion, the Tribunal's reasoning proceeded in the following way. The major premise was this: notwithstanding a person's stated determination to the contrary, there remains some risk that a person might not effectively manage certain pressures (which contributed to the person's initial offending) and, as a result, there is a further risk of the person reoffending (Tribunal's Reasons at [43]) and that risk cannot be considered to be either minimal or trivial (Tribunal's Reasons at [46]) if the following two factors are satisfied: (1) the nature of a person's offence is very serious (Tribunal's Reasons, [26], [32]), and the offence took advantage of vulnerable members of the community, namely those with an addiction to illicit substances (Tribunal's Reasons at [26], [29] and [32]). (In this respect, it should be noted that these factors accorded with the Supreme Court of Queensland - Court of Appeal's reasons in Onyebuchi. It would have been difficult and potentially legally erroneous for the Tribunal to go behind those matters or to redecide them for itself: see eg Minister for Immigration & Multicultural Affairs v "SRT" [1999] FCA 1197; 92 FCR 560 (SRT) at [46]); (2) there were specific circumstances present at the time the person committed the offence that contributed to the offending (Tribunal's Reasons at [40]) and, even though those circumstances may no longer exist (Tribunal's Reasons at [41]) and there is a "stated commitment to better managing" relevant "personal pressures", "the capacity for the [person] to effectively manage such pressures again in the future has not yet been tested outside of a prison or detention environment" (Tribunal's Reasons at [42]-[43]). 94 The Tribunal's minor premise was that the Applicant satisfied these factors. 95 The Tribunal therefore deduced that the Applicant fell into the category of persons who presented a non-minimal and non-trivial risk of reoffending. 96 The Applicant does not appear to challenge the Tribunal's minor premise, namely the factual basis for the reasoning. In this respect, the Applicant does not argue, and it appears did not argue before the Tribunal, that the relevant offence was not serious. (Even if that was challenged, Direction 79 has directed that "crimes committed against vulnerable members of the community … are serious", the Tribunal concluded (consistently with statements of the Queensland Court of Appeal in Onyebuchi) that the Applicant's offending did affect relevant vulnerable persons and, as a result, Direction 79 mandated that, without more, the Tribunal should view the Applicant's offending as "serious" (Direction 79, 13.1.1(c)).) The Applicant also does not argue that somehow his capacity to effectively manage the relevant pressures outside of prison or detention has been tested. In these circumstances, the Tribunal's minor premise was essentially unchallenged, and is soundly based.

[28]

Application of applicable principles 97 The only question, then, is whether the Tribunal's major premise was within the textual scope of the relevant statutory materials. The answer to that question is "yes", for the following reasons. 98 First, Direction 79 sets out principles which were to inform the Tribunal's decision (Direction 79, [6.3], 7). One of those principles is that "the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia …" (Direction 79, 6.3; emphasis added). Another is that a "non-citizen who has committed a serious crime … particularly against … vulnerable members of the community … should generally expect to … forfeit the privilege of staying in … Australia (Direction 79, 6.3; emphasis added). The Tribunal's consideration of the seriousness of the Applicant's offending and its effect on vulnerable members of the community was therefore directly referable to the express terms of Direction 79. It was open to the Tribunal to have regard to those factors. 99 Second, the starting point for the Tribunal was that, if the Applicant's offending was responsive to the words "serious crime" in Direction 79 (and it does not appear that such a position was challenged in the Tribunal), without more, the Applicant should have "generally expect[ed] to … forfeit the privilege of staying in … Australia". 100 Third, the Tribunal was required to "have regard to" the "likelihood of the non-citizen engaging in further criminal or other serious conduct", taking into account "available information" (Direction 79, cl 13.1.2(1)(b)). In this respect, it appears to have been unchallenged that the Applicant's capacity to manage certain pressures outside of a prison or detention environment was untested. That was "available information" as that term is used in Direction 79 and, as a result, the Tribunal could take it into account. 101 In light of the statutory guidance in Direction 79, consideration of this matter was not akin to a mere reliance on a "bare recitation" of what the Applicant had "done in the past" (Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595 (Splendido) at [77] per Mortimer J; Moshinsky J agreeing). It should not be placed into the category of the perhaps less sophisticated logic of "[the Applicant] did it before; he has a propensity to do this sort of thing; the likelihood is that he [might do it again]" (Hughes v The Queen [2017] HCA 20; 344 ALR 187 at [70]-[72] (per Gageler J)). 102 Four matters will suffice to illustrate why that is so. First, the Tribunal's assessment of these pressures was directly referable to the "circumstances of past offending" which are "integral to any assessment of the risk, or likelihood, of future offending" (Splendido at [81] per Mortimer J; Moshinsky J agreeing). (It was accepted that certain pressures contributed to the Applicant's relevant offending: see Tribunal's Reasons at [40-[43].) Second, the context for the Tribunal's consideration of these circumstances was that the offending was serious and it followed that, without more, it was to be expected that the Applicant would "forfeit the privilege of staying in … Australia" (Direction 79, cl 6.3(3)). Third, the Tribunal acknowledged that the Applicant's risk of reoffending was low, but the Applicant's capacity to effectively manage the relevant pressures could not wholly discount the risk of reoffending because any developed capacity had not yet confronted any pressures which might arise outside of the prison or detention environment (see Tribunal's Reasons, [46]-[47]) and, as a result, the Tribunal could not reason away the relevant risk. Fourth, the Tribunal then had to confront the principle that "any risk" of similar offending "in the future [can be] unacceptable" (Direction 79, cl. 6.3(4); emphasis added). Faced with that principle, it was open to the Tribunal to, and the Tribunal did, find that the even low risk of reoffending posed by the Applicant was "unacceptable" and, as a result, the Tribunal could not (consistently with Direction 79) revoke the relevant decision. 103 In short, the Tribunal reasoned that the Applicant's offending was serious, the starting point was that the Applicant should not expect the Tribunal to revoke the relevant decision, there were pressures which contributed to the Applicant's offending and, while those pressures were said to be no longer present, it was not possible to say whether they would re-emerge outside of a prison or detention environment given that the matter was untested and, if they do emerge in that manner, there was no basis upon which to assess how the Applicant would address them. Such considerations and the Tribunal's treatment of them fell well within the area of discretion marked out by the text of Direction 79. It cannot be accepted in these circumstances that no decision-maker could reason in that manner. 104 Moreover, the Tribunal reasoned that, where the relevant offending is very serious and "has the potential to have a devastating impact on individuals and families, as well as very serious consequences for the broader community", any risk of reoffending of that kind "is unacceptable" (Tribunal's Reasons, [47]). (I have referred to this generally above as the Unacceptable Risk Conclusion. It can be fairly understood as there being an unacceptable risk of reoffending which, as a result, poses an unacceptable risk of potential harm to the community.) The Tribunal found that the Applicant's offending satisfied these criteria. And, again, for the reasons stated above, the Applicant does not challenge those factual findings which relevantly underpin this conclusion (that is, there was no challenge to the contention that the offence was serious or that it affected vulnerable members of the community). 105 As a result, the question becomes whether the major premise of the Unacceptable Risk Conclusion falls within the terms of Direction 79. The answer to that question is "yes" given the Tribunal's major premise essentially reproduces the express terms of the principle in Direction 79 that, "[i]n some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable" (Direction 79, cl 6.3(4); emphasis added). In these circumstances, given the Tribunal had found that the relevant offending was serious (a finding that was unchallenged), that any reoffending would affect vulnerable members of the community (a matter that was unchallenged), and that there was some risk of reoffending, in circumstances where Direction 79 expressly recognises that there are occasions where any identified risk of "similar conduct" "is unacceptable", the Tribunal was well within the scope of its powers (expressed in Direction 79) in making the finding that it did. It should not be accepted in these circumstances that no reasonable or rational decision-maker could reason in the manner in which the Tribunal did. 106 There is then the question as to whether the Balancing Conclusion is affected by jurisdictional error. The Applicant in this regard says that a good deal of the matters referred to in Direction 79 were found in his favour, save for the Reoffending Risk Conclusion, the Unacceptable Risk Conclusion and the Community Expectations Conclusion. However, this is essentially a submission that the Tribunal should have weighed the evidence differently - eg that it should have given greater weight to the Favourable Matters Conclusion and, in the balancing exercise that the Tribunal evidently conducted, found that the Favourable Matters Conclusion outweighed other matters such that the relevant decision should have been revoked. 107 This position cannot be accepted. This is so for at least two reasons. 108 First, in taking relevant considerations into account, cl 8(5) of Direction 79 expressly directs the Tribunal that "[o]ne or more primary considerations may outweigh other primary considerations" (emphasis added). As a result, Direction 79 permits the Tribunal to assess which considerations outweigh others and provides that "one" primary consideration "may" outweigh others. That is, Direction 79 expressly contemplates that one primary consideration can be determinative even in the light of other primary considerations. 109 Second, even if Direction 79 did not furnish this statutory identification (which it has), it is "generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power": Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J (Gibbs CJ agreeing generally; Dawson J agreeing). In addition, a decision being "against the evidence" or "against the weight of the evidence" belong "to appeals from courts of law and have particular application to jury verdicts" (Collins v Minister for Immigration & Ethnic Affairs (1981) 4 ALD 198 at 201; 36 ALR 598 (per Fox, Deane and Morling JJ) (Collins)). Even in that context, "they do not involve questions of law" (ibid). They "have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses" (ibid). 110 In these circumstances, the Balancing Conclusion was not unreasonable, illogical or irrational such that it involved jurisdictional error.

[33]

Application to the Applicant's argument 116 In this regard, it is important that the Applicant understands the structure of Direction 79 (which is set out in more detail above). Direction 79 required the Tribunal to "take into account the considerations" set out in Direction 79's Part C (Direction 79, cl 7). However, Direction 79 contains "primary" considerations and "other" considerations. While "[d]ecision-makers must take into account the primary and other considerations relevant to the individual case" (Direction 79, cl 8(1)), the "primary considerations" should "generally be given greater weight than the other considerations" (Direction 79, cl. 8(4); emphasis added). 117 The relevant primary considerations were the "[p]rotection of the Australian community from criminal or other serious conduct", the "best interests of minor children in Australia" and the "[e]xpectations of the Australian community" (Direction 79, Part C, cl. 13). The "other considerations" relevantly included the "[s]trength, nature and duration of ties" and "[e]xtent of impediments if removed" (Direction 79, Part C, cl. 14). One of the "other considerations" was "the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely)" (Direction 79, cl. 14.2(1)(b)). 118 In these circumstances, it was not outside the statutory boundaries for the Applicant to raise a question as to whether the consequences for his family had been properly considered. However, the Applicant's (apparent) contention that the Tribunal failed to take these into account cannot be accepted. By way of example, at [100] of the Tribunal's Reasons, the Tribunal considered and found that "a decision to not revoke the cancellation of the applicant's visa would have a very significant and deep impact on [the Applicant's wife]". The Tribunal acknowledged the Applicant's wife's "deep commitment to her husband and the extraordinarily difficult position … a [non-revocation] decision would put her in" (Tribunal's Reasons at [100]). The Tribunal in these circumstances concluded that "the strength, nature and duration of ties consideration weighs heavily in favour of revoking the mandatory cancellation of the applicant's visa" (ibid). 119 While these matters were considered and given weight by the Tribunal, the Tribunal was required to weigh them alongside the considerations relating to the potential risk to the Australian community which are detailed above. Direction 79 has directed that the "primary considerations" should "generally be given greater weight than the other considerations" (Direction 79, cl. 8(4); emphasis added). That is akin to saying that matters such as the "[p]rotection of the Australian community from criminal or other serious conduct" can and should "generally be given greater weight" than, for example, relevant effects on the Applicant's immediate family in Australia. Put simply, Direction 79 ensures the Tribunal was legally allowed to consider the Applicant's risk of re-offending and give it greater weight than relevant effects on the Applicant's family. The Tribunal conducted that evaluative balancing and came to the decision that it did. Those were matters that were within the discretion afforded to the Tribunal by way of the relevant statutory foundation.

[37]

Application of relevant principles to the Applicant's argument 125 It can be appreciated why applicants would have a preference to appear in person at all hearings. But that is not what the law of procedural fairness required in this case, not least for the following reasons. 126 At a high level of generality, the rules of procedural fairness do not have an immutably fixed content (see Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156 [175]-[178]; 230 FCR 82 (per Middleton and Wigney JJ) (Snedden) citing Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; 295 ALR 638 at [156]). What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts, including any statutory or regulatory requirements or considerations (see Snedden at [177] and the various High Court authorities cited there). In this respect, the legislature has expressly stated that the Tribunal, "for the purposes of a hearing, … may allow or require a person to participate by telephone or by means of other electronic communications equipment" (AAT Act s 33A(1); emphasis added). In other words, the legislative framework for the hearing expressly contemplates and enables the situation which the Applicant says constitutes a denial of procedural fairness. 127 In addition, the content of procedural fairness is flexible and adaptable to the circumstances of the particular case and must be approached on the basis of what is reasonable (Kioa v West (1985) 159 CLR 550 (Kioa) at 627) and necessary to avoid "practical injustice" (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]-[38]). What is required by procedural fairness is a fair hearing, not a fair outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [25] (per Gleeson CJ and Kirby, Hayne, Callinan and Heydon JJ)). 128 In this regard, there was no suggestion or evidence that practical injustice arose as a result of the hearing proceeding by way of a video conference. Indeed, it is difficult to see how a contention that practical injustice arose could be soundly sustained given the Applicant was represented by both a solicitor and counsel at the Tribunal hearing and the Applicant's solicitor and counsel appeared in person before the Tribunal. There is no evidence or suggestion that the video conference did not work properly, that the Applicant was impaired in any way from understanding what the Tribunal, legal representatives or witnesses said during the hearing, that the Tribunal or any of the legal representatives did not understand anything that the Applicant said during the hearing, or that the Applicant was unduly impaired from giving instructions to his representatives. There is no basis in these circumstances for a finding that the Applicant was denied procedural fairness. 129 In any event, having regard to the Tribunal's Reasons, even if the Applicant had appeared in person (with whatever conceivable advantages that might have afforded to the Tribunal to assess the Applicant's demeanour), there is little reason to suspect that would realistically have made a difference to the result. This is particularly so given the Tribunal did not make any adverse finding as to whether the Applicant was reliable or telling the truth. Indeed, the Tribunal accepted the genuineness of the Applicant's evidence (see eg Tribunal's Reasons at [39], [42], [74], [99]-[100]).

[39]

Conclusion 131 By way of summary, notwithstanding the Applicant's generalised grounds, I have read them for their substance rather than form and, even so, the Applicant has failed to identify any sustainable ground for review of the Tribunal's decision. There is no evident jurisdictional error in the Tribunal's reasons. 132 A consideration of the Tribunal's reasons disclose that the Tribunal undertook a careful and reasoned analysis having regard to Direction 79 and to the requirements imposed upon the Tribunal by that Direction. The Tribunal's Reasons are structured by reference to the primary and other considerations set out in Direction 79. The Tribunal, in assessing each of the primary and other considerations, analysed the available evidence and weighed that evidence against each relevant consideration in the Direction. It was not submitted by the Applicant that the Tribunal failed to have proper regard to any primary or other consideration. The Applicant's complaint in substance is seeking to have this Court undertake a merits review. That was not this Court's role in this application. 133 The Tribunal's reasons, which concluded at [131]-[132] of the Tribunal's Reasons, disclose the detailed analysis undertaken by the Tribunal in weighing each of the "primary" and "other" considerations relevant to the exercise of the Tribunal's discretion. Moreover, for the reasons set out above, there is no element of the Tribunal's reasoning which has been identified by the Applicant which can properly be characterised as irrational, capricious or otherwise exceeding the decisional freedom which Parliament has granted to the merits decision-maker. 134 It is not apparent that the Tribunal failed to consider any representation by the Applicant. The Applicant has not pointed to any such failure. Nor has the Applicant identified any failure by the Tribunal to comply with Direction 79 when considering the manner in which it was to exercise its discretion. 135 The Applicant's complaint that there was insufficient or no evidence for findings that the Tribunal made is without a sustainable basis. The Tribunal's reasoning involved an evaluative assessment of a significant body of evidence before it when considering whether it was satisfied that there was another reason to revoke the cancellation of the Applicant's visa. 136 Finally, the Applicant's complaint that the Tribunal denied him procedural fairness also cannot succeed. The Applicant was given the opportunity to give detailed written and oral submissions, and written and oral evidence. The Applicant was given ample opportunity to present his case and to respond to any adverse material. The Applicant was represented before the Tribunal by his solicitor and counsel. There was no requirement on the Tribunal to ensure that the Applicant was present in person before the Tribunal. There was no denial of procedural fairness by the Tribunal having the Applicant observe the hearing by way of video conference.

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

At a glance

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Judgment (40 paragraphs)

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Legislation Cited (3)

Cases Cited (45)

Cited By (3)