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

1. Appeal be dismissed.
2. The appellant pay the first respondent's costs of and incidental of the appeal to be fixed by lump sum by a Registrar, if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 Mr Damien Maduray Pillay is a citizen of the Republic of South Africa. He came to Australia as a young adult, then aged 21, in 2008. That is some 13 years ago. It is apparent from the evidence that was led in the Administrative Appeals Tribunal (the Tribunal) that, perhaps to understate matters, Mr Pillay had particular hardships in his childhood in South Africa. There is no need to elaborate on that, but I would not wish it to be thought that that aspect of the case has passed unnoticed. He doubtless came here with a desire to make a fresh start and build a new life. Unfortunately, as can happen, he wavered in terms of conduct. 2 There is reference in the reasons of the primary judge to conduct which includes unlawful stalking, fraud, drug possession and driving while intoxicated by alcohol and drugs. Most materially, on 10 April 2019, Mr Pillay was convicted in the Queensland Magistrates Court of the offence of unlawful use of a motor vehicle. In respect of that offence, we was sentenced to 15 months imprisonment, wholly suspended. 3 The following year, on 27 March 2020, he was resentenced in respect of that particular offence to 14 months imprisonment. A sequel to that was that, on 4 August 2020, Mr Pillay's visa, which conferred his right of residence in Australia, was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act). 4 As was Mr Pillay's right, he made representations to the predecessor to the present first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), by which he sought the revocation of the cancellation of his visa. Perhaps remarkably, it took until 26 November 2021 for a delegate of the Minister to make a decision in respect of the representation which Mr Pillay had made. In the result, the Minister's delegate refused to revoke the cancellation decision. Very promptly, on 29 November 2021, Mr Pillay exercised his right conferred by the Act to seek the review of the Minister's delegate's decision by the Tribunal. The effect of the Act was that the Tribunal operated under an ordained timeline, within which it had to hear and determine the review application. 5 On 21 February 2022, the Tribunal decided to affirm the Minister's delegate's decision. In other words, it affirmed the decision not to revoke the cancellation of the visa. Thereafter and again promptly, Mr Pillay sought the judicial review by this Court, in its original jurisdiction, of the Tribunal's decision. 6 On 19 December 2022, for reasons published that day, the Court dismissed with costs that judicial review application. Again, promptly, Mr Pillay has appealed against that order of dismissal as was his perfect right. 7 Mr Pillay chose to argue his appeal in person. Reflecting the absence of legal training, Mr Pillay's grounds of appeal are imprecisely stated. They are as follows: 1. The Federal court failed to assess whether legislation properly construed the obligation to accord natural justice. 2. The Federal court ignored the relevant materials and identified the wrong issues and asked themselves wrong questions. 3. They made incorrect interpretations and applied applicable law in a way that affects the exercise of power. And as well as they did not consider to reinstate my visa. 4. The Federal court did not considered on consequences of his decision and or judgment to show concerns about my person facing the prospect of indefinite detention however such finding was open to the decision-maker. 8 In the course of oral submissions and with commendable focus, Mr Pillay made it clear that the essence of the grievance which he had with the reasoning of the primary judge lay behind, as a fair reading might suggest, the first of these grounds. In other words, Mr Pillay's grievance is that, in the events which transpired both before and during the proceedings before the Tribunal, he was denied natural justice or, to use a more modern term, procedural fairness. Some recitation of the background to that is necessary. Before so doing, I should observe that, in the course of oral submissions, Mr Pillay confirmed that the other grounds of appeal were really different ways of expressing the essential grievance which is found in and lies behind the first ground. 9 The starting premise for Mr Pillay's submissions on appeal is a sound one. There is no doubt that the Tribunal was obliged to afford him procedural fairness. More particularly, an aspect of that obligation was to ensure that he was alerted to an issue that may be adverse, which, in turn, may be important in the Tribunal's decision afresh about whether to revoke cancellation. 10 The real question in the appeal is whether or not that particular obligation was not observed by the Tribunal in the circumstances? The point is one which was addressed squarely by the primary judge in dealing with one of the grounds of review before him. 11 Both in the original jurisdiction and, for that matter, in the Tribunal, Mr Pillay had the benefit of legal representation. The point for him in the original jurisdiction was argued with reference to the judgment of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL). Put in plain language, and deliberately for Mr Pillay's benefit, one might give the essence of that case as, if it is common ground between parties that a particular fact is so, then it is a denial of procedural fairness for an administrator, for example, the Tribunal, to depart from that position without giving each party an opportunity to make submissions on that subject; in other words, ambushing by a decision-maker can amount to jurisdictional error. 12 The position up to and including when Mr Pillay came to give evidence before the Tribunal was that it was common ground as between him and the Minister that he was the father of a young child termed, in the Tribunal's reasons, Child H. That position had prevailed throughout what one might term the administrative decision-making continuum, which had started upon the cancellation of the visa, proceeded through the delegate considering whether to revoke the visa and then proceeded further into the Tribunal. 13 All of this is related by the primary judge in his reasons for judgment at [25] and following under the heading 'Ground 1, Denial of Procedural Fairness'. As his Honour related at [38], in his oral evidence before the Tribunal, Mr Pillay began by describing Ms A as "the mother of my daughter". As his Honour further related, however, he then proceeded to express doubt about whether he was, in fact, the biological father of Child H. This subject came up in cross-examination in a passage in which his Honour quoted at [39]: Like, to be honest with you, the thing with [Ms A], like, I was never sure that [Child H] was my daughter and I did bring up this conversation with her a few times and she always shrugged it off. Ms A, I should indicate, is the mother of Child H. 14 As his Honour related, that then provoked some questioning of Mr Pillay by the Tribunal. It also became the subject of submissions both by the Minister as well as Mr Pillay's counsel. The primary judge related all of that and then set out in, with respect, an unremarkable but correct way principles relating to procedural fairness and, in particular, alerting a person who may be affected by an administrative decision of the critical issue. 15 The evidence concerned came out at the Tribunal on 4 February 2022, but the hearing was not concluded until the 11 February 2022. There was an adjournment in between. The conclusion reached by the primary judge was that the issue as to fatherhood of Child H was an issue which was a material one in terms of an assessment of whether or not to revoke cancellation. It was certainly a subject which could be regarded as relevant having regard to the Ministerial Direction setting out particular considerations made pursuant to s 499 of the Act. 16 His Honour's conclusion, though, was that the issue was one which had been alerted to Mr Pillay through his legal representatives and that there was opportunity within the limited timeframe for administrative decision-making for there to have been supplementation, if so advised by Mr Pillay, of the position with respect to Child H, perhaps by calling Ms A. In the events which transpired, that did not occur. His Honour's conclusion was that, against that background, SZBEL was distinguishable and that there had been no denial of procedural fairness. 17 That conclusion, in my view, was correct, and correct for just the reasons given by the learned primary judge. 18 It was apparent in the course of Mr Pillay's oral submissions today, as I consider it may well have been in the course of proceedings before the Tribunal, that there were difficult personal value judgments which fell to Mr Pillay to make about the extent of involvement of Ms A. It is no criticism of Mr Pillay, and nor should he be in any way regretful about making particular personal value judgments. But that cannot alter the position which did prevail in the Tribunal, which was one of a subject coming out with commendable candour from him in the course of his oral evidence. That then provided occasion for pause for thought by everyone concerned, including the Minister, the Tribunal and those acting for him, on the subject of the fatherhood of Child H with all that carried with it in terms of an assessment of criteria for whether to revoke cancellation. 19 Mr Pillay also, as is not uncommon with a person without legal training, was unclear as to the role of the judiciary compared with administrators under the Act in relation to cancellation of visas. So some of his submissions, which were made with absolute good faith, were not relevant in that they were directed to the promotion of a persuasive case for why the visa which he once had and which was cancelled should be restored as a matter of value judgment. As was pointed out in the course of submissions, that was not the role of the primary judge and neither is it our role on appeal. 20 Rather, whilst the ground of challenge is, as I have mentioned, meaningful in terms of its contesting the conclusion reached in respect of the procedural fairness point, it is not a ground which, for the reasons which I have given, has merit. In the prevailing circumstances and for the reasons given by the primary judge, there was no denial of procedural fairness. 21 It necessarily follows from the foregoing that, in my view, the appeal should be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.