A Denial of Procedural Fairness
11 The first Ground of Appeal is expressed differently to the manner in which the Appellant sought to advance her denial of procedural fairness argument before the primary Judge.
12 Before the primary Judge, the Appellant argued that the denial of procedural fairness arose by reason of the Tribunal's failure to inform her that it would rely upon the offences committed whilst she was a minor.
13 The argument now seems to have shifted to an argument that the primary Judge erred in not concluding that the Tribunal denied her procedural fairness by failing to consider the best interests of her child, Ezekiel. If the manner in which the first Ground of Appeal is expressed raises an argument different to that resolved by the primary Judge, Senior Counsel on behalf of the Minister did not oppose leave being given to raise the argument as it is now expressed. The Ground, it is considered, does in fact raise a new argument and, accordingly, leave is necessary and should be given. It is an argument which can be addressed by reference to the same material that was before the primary Judge (cf. Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36 at [30]-[33], 290 ALR 750 at 760 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) and it is "expedient in the interests of justice" to permit the argument to be now resolved (VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48] per Kiefel, Weinberg and Stone JJ).
14 A ground alleging a denial of procedural fairness by the Tribunal is ultimately to be founded upon the obligation set forth in s 39 of the Administrative Appeals Tribunal Act 1975 (Cth). That section expresses the requirement as a duty to "… ensure that every party is given a reasonable opportunity to present his or her case …". The section, it has been said, "reflects the common law requirement of procedural fairness": Daw v Minister for Immigration & Citizenship [2012] FCA 705 at [3] per Edmonds J. Whether the requirement imposed upon the Tribunal by s 39 is co-extensive with the common law requirements is a question which may presently be left to one side. The section, it has long been recognised, does not require the Tribunal to ensure that a party takes the "best advantage" of the opportunity: Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], 60 ALD 737 at 748. See also: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 where Deane J (with whom Fisher J agreed) observed that "[n]either the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled". Appl'd: De Simone v Federal Commissioner of Taxation [2009] FCAFC 181 at [15], 51 AAR 161 at 167 per Sundberg, Stone and Edmonds JJ; Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26 at [45] per Keane CJ, Downes and Gordon JJ.
15 However the obligation or duty is expressed, there has been no denial of procedural fairness in the decision-making process that resulted in the Tribunal affirming the delegate's decision.
16 When making his decision, the delegate had the benefit of a Departmental issues paper dated 14 March 2012. The delegate made his decision and provided a Statement of Reasons, also dated 14 March 2012. Of particular relevance is the fact that copies of both the Departmental issues paper and the delegate's Statement of Reasons were available to the Appellant in advance of the hearing before the Tribunal. A copy of the Minister's Statement of Facts and Contentions was also available to the Appellant.
17 Senior Counsel for the Minister contended that the fact that these documents were available to the Appellant was sufficient notice that the best interests of Ezekiel would be a relevant issue to be taken into account by the Tribunal. Such notice, it was contended, was initially provided by:
the Notice of Intention to Consider Cancellation of the Appellant's visa dated 20 January 2012 and the enclosed copy of Direction No 41.
Thereafter, it was contended that notice of the significance of Ezekiel's best interests to the decision was given to the Appellant by providing her with a copy of:
the Departmental issues paper, particularly at paras [46] to [50];
the delegate's Statement of Reasons, particularly at paras [19] to [22]; and
the Minister's Statement of Facts and Contentions at paras [66] to [70].
Senior Counsel for the Minister also relied upon:
the Notice of Cancellation hand-delivered to the Appellant, which referred to the right to seek review by the Tribunal.
Considerable reservation is expressed as to whether an unrepresented party is adequately put on notice of the potential importance of a "primary consideration" by simply being provided with such documents. The provision of standard form letters which generically refer to the need to "read the enclosed Ministerial Direction carefully", with respect, may provide little assistance to an unrepresented person. Such a person may well lack the skills and training of a lawyer to distil the relevant from the irrelevant and the ability to make an informed judgment as to how to best present a submission opposing an impending decision affecting both her own interests and those of her child. Perhaps it is difficult in an area of high volume decision-making to do more than inform a person potentially affected by an adverse decision of the general framework within which a decision is to be made. Any greater focus upon one relevant consideration over another may have the potential to distract the attention of a party with an issue that should be given less - rather than more - prominence. It is nevertheless regrettable that an unrepresented party should be left to trawl through extensive and detailed documentary material with a view to discerning how an application for review by the Tribunal may best be presented.
18 Any such reservation, however, was understood to be answered - at least in the Minister's submissions - by reason of the fact that the Appellant had made submissions regarding the best interests of Ezekiel in both a handwritten submission she had made to the delegate and repeated in a further handwritten letter to the Minister's solicitor. The submission to the delegate thus stated in part (without alteration):
Im only young and still learning this has been a lesson well learnt being incarcerated im not willing to put myself in this position again from now on im about making better life choices and furthering myself to become the best me i can be. Im a single mother and my future is about me and my son. The father is not in picture whom is an australian citizen/resident.
The handwritten letter to the Minister's solicitor, which was provided to the Tribunal, stated in part (again without alteration):
Sending me back to New-Zealand would be detrimental to myself and my son if we were to be separated from such a great distance. If I were to be sent back to New-Zealand I would not get the support I needed to not re-offend.
Such references to the interests of her child, however, can hardly be characterised as anything but "passing references". The handwritten documents fail to disclose any real appreciation on the Appellant's part as to the importance that may be attributed to the best interests of Ezekiel in the decision to cancel or not cancel her visa.
19 Not to be deterred, Senior Counsel for the Minister also placed reliance upon the evidence given by the Appellant during the course of the Tribunal hearing. That evidence emerged as follows in the cross-examination of the Appellant by the solicitor representing the Minister before the Tribunal (without alteration):
If I can ask you about your son. I understand that you've got one son, Ezekiel?---Yes.
Is that correct? And how old is he presenntly?---19 months.
And who is Ezekiel's father?---….. Ender.
And do you have any ongoing relationship with him?---No.
When was the last time you spoke with him?---Two nights before my son was born, so that would be 6 October 2010.
And so I can take it from that that he has played absolutely no role in your son's upbringing?---No.
Before your son was born did he express any desire to have any role in your son's life?---He did but then he wasn't sure at the time.
He wasn't sure?---He wasn't sure after a while.
And who is Ezekiel presently living with?---My parents.
And where do they live?---Mt Isa.
And do you think your parents have a good relationship with your son?---Yes.
And they do a good job of looking after him?---Yes.
And do you think Ezekiel has any close relationships with other people in Australia or other family members or friend?---No, just me and my parents.
And, again, if you assume that the Tribunal doesn't find in your favour today so you had to go back to New Zealand, would you take your son back to New Zealand with you?---Yes.
You would? And would you expect that your parents would be keen to maintain contact with your son through, for example, telephone or things like that?---Yes.
The best interests of Ezekiel were again referred to in the closing submissions before the Tribunal. Whatever reservations may be expressed in respect to the difficulties that may be encountered when a claimant is informed in generic terms of an intention to make an adverse decision or advised of a right to seek review, less reservation may be expressed in respect to that stage of the decision-making process when an application for review has in fact been made to the Tribunal. By that stage the factual issues to be addressed have been identified. In an appropriate case, it may not be sufficient for the Tribunal to simply leave to the advocate for the Minister the responsibility of adducing such evidence as the advocate may consider of relevance.
20 In an appropriate case, a "reasonable opportunity" to make submissions may well involve the Tribunal itself asking questions of relevance to any particular concern it may have: cf. Sullivan v Department of Transport (1978) 20 ALR 323. Deane J there made the following observations concerning the duty placed upon the Tribunal with reference to an unrepresented applicant:
Section 33(1)(b) of the Act requires that the proceedings of the Tribunal shall be conducted with as little formality and technicality, and with as much expedition as the requirements of the Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit. It is apparent that the objectives of expedition and of lack of formality or technicality and the requirements of fairness will ordinarily be best achieved by a ready identification of the issues which are, in truth, in dispute between the parties in a particular application for review. In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner which they think appropriate. Circumstances may, of course, arise in which such a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case. Ordinarily, however, in the absence of a request for assistance or guidance by a party who is appearing in person, a tribunal under a duty to act judicially should be conscious of the fact that undue interference in the manner in which a party conducts his case may, no matter how well intentioned, be counter-productive and, indeed, even overawe and distract a party appearing in person to the extent that it leads to a failure to extend to him an adequate opportunity of presenting his case: (1978) 20 ALR at 342-343.
Not to be ignored is the obligation now imposed upon the person who made the decision to "use his or her best endeavours to assist the tribunal to make its decision in relation to the proceeding": Administrative Appeals Tribunal Act s 33(1AA). The less important the available evidence or submission may be, the less need there may be for the Tribunal or a respondent to address the issue. But the more important and the more centrally relevant such available evidence or submissions may be to the decision to be made, the greater may be the need for the issue to be addressed and resolved - even if not otherwise addressed by an unrepresented party: Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609 at [19], 49 AAR 77 at 83 per Flick J.
21 Notwithstanding the fact that the Appellant's attention was not expressly directed to the need to address the best interests of Ezekiel in either her submissions or her evidence, it cannot be concluded in the present case that she has been denied a "reasonable opportunity" to present her case. Whatever reservation may be expressed regarding the desirability or otherwise of leaving the task of distilling the issues that need to be addressed (especially the task of distilling those issues from a mass of other factual issues) to an unrepresented party, it cannot be concluded that the Appellant was not on notice of the need to give consideration to the best interests of Ezekiel from the materials available to her. The issue was raised and she was given a "reasonable opportunity" to respond.
22 The first Ground of Appeal is thus rejected.