Uelese v Minister for Immigration and Citizenship

Summary of background facts 3 The appellant was born in Samoa, but moved with his family to New Zealand when he was three years old. He became a New Zealand citizen. In 1998, when the appellant was 14 years old, he came to Australia and has lived here ever since. As a New Zealand citizen, he was granted a Class TY Subclass 444 Special Category (Temporary) visa, which entitled him to remain in Australia indefinitely while he remained a New Zealand citizen. 4 The appellant has a long history of criminal offences, which began shortly after he arrived in Australia. His first offence in Australia was committed when he was 15 years old. Some of his offences involve violence, often associated with excessive alcohol consumption. He has been convicted of three offences involving violence, being in July 2005 (common assault, affray and assault occasioning actual bodily harm), June 2011 (assault occasioning actual bodily harm) and December 2011 (recklessly causing grievous bodily harm in company and affray). He was also convicted in 2007 of both possession and supply of a prohibited drug. He has served several terms of imprisonment. He was released from his last term of imprisonment on 5 September 2012, having been notified shortly beforehand that his visa had been cancelled by the Minister's delegate under s 501 of the Act. On his release, he was immediately taken into immigration detention, where apparently he remains. 5 Section 501(2) of the Act provides that the Minister may cancel a visa granted to a person if the person does not satisfy the Minister that he or she passes the character test. Section 501(5) provides that a person does not pass the character test if the person has a substantial criminal record (which is defined in s 501(7) as meaning inter alia a sentence to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more). It is common ground that the appellant has a substantial criminal record for the purpose of the Act, thereby enlivening the discretion whether or not to cancel his visa.

The AAT proceedings 6 The decision to cancel the appellant's visa was reviewed by the AAT. The review was unsuccessful. On 14 November 2012, the AAT handed down its decision and gave detailed reasons for affirming the visa cancellation decision. Those reasons addressed inter alia various matters set out in a Ministerial direction dated 28 July 2012 and entitled "Direction no 55: Visa refusal and cancellation under s 501" (Direction 55). Section 499(2A) of the Act obliged the AAT to apply Direction 55 in reviewing the visa cancellation decision. The Minister's delegate was also bound by that provision to apply Direction 55 in considering whether or not to cancel the appellant's visa. 7 It is made clear in Direction 55 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 (clause 6.2(1)). That objective is furthered by six principles set out in clause 6.3, which are stated to reflect community values and standards in determining whether the risk of future harm from a non-citizen is unacceptable. It is stated in clause 6.2(3) that these principles "provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa" under s 501. In exercising the discretion, clause 7 states that a decision-maker is not only to be "[i]nformed" by these principles, but must also take into account various considerations set out in Part A or Part B, where relevant, in determining whether or not to cancel a visa. 8 Under clause 8 of Direction 55, decision-makers are obliged to have regard to both primary and other considerations, as set out in the direction. Clause 8(4) provides that primary considerations should generally be given greater weight than the other considerations. One of the four primary considerations concerns the "best interests of minor children in Australia". 9 Because of its importance in the proceedings, it is appropriate to set out clause 9.3 in full: 9.3 Best interests of minor children in Australia affected by the decision (1) Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child. (2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made. (3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ. (4) In considering the best interests of the child, the following factors must be considered where relevant: a) The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); b) The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements; c) The impact of the person's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child. d) The likely effect that any separation from the person would have on the child, taking into account the child's ability to maintain contact in other ways; e) Whether there are other persons who already fulfil a parental role in relation to the child; f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); g) Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct. 10 The appellant was legally represented in the AAT proceedings. He relied on a number of written statements of evidence, including one by himself, as well as statements by various members of his family, his de facto partner (Ms Fatai), a psychologist and other people. In each of the written statements made by the appellant, his de facto partner, his father and the psychologist, reference was made to the appellant having three children with his de facto partner. At the time of the AAT hearing, those children were aged eleven, eight and six. Some of the witness statements contained information which addressed some of the relevant factors bearing upon the best interests of those three children. There was also evidence before the AAT of a pre-sentence report in proceedings in the New South Wales District Court in late 2011 before Judge Ashford, in which reference was made to the appellant having three children. 11 Notwithstanding that the appellant's case in chief in the AAT was presented on the basis of him having only three children whose interests required "primary consideration", it emerged during the course of cross-examination in the AAT of the appellant's de facto partner that, in fact, he had another two children who were aged approximately five and four at the time of the hearing. Apparently, after he had separated from his de facto partner and mother of his three children in late 2005, he had two further children with another woman. 12 The AAT took the view that it was prevented by s 500(6H) of the Act from having regard to the oral evidence that he had five, and not three, children. Section 500(6H) is in the following terms: (6H) If: (a) an application is made to the Tribunal for a review of a decision under section 501; and (b) the decision relates to a person in the migration zone; the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. 13 The AAT's reasoning in respect of the operation and effect of s 500(6H) is reflected in [4] and [64] of its reasons for decision: Mr Uelese has three children aged eleven, eight and six with Ms P Fatai whom he says he plans to marry early in 2013 if he is permitted to stay in Australia. Mr Uelese also has two other children aged approximately five and four. The information about the other two children came to light during cross-examination of Ms Fatai. The effect of s 500(6H) of the Migration Act 1958, which was acknowledged by Mr Uelese's representative, was that the Applicant was prevented from eliciting oral evidence that may have supported his case in relation to these children as there was no reference to them in any written statements provided to the Minister at least two business days before the hearing. … As already stated, Mr Uelese has been involved in an on and off relationship with Ms Fatai for approximately 12 years, and they have three children aged eleven, eight and six. No evidence was able to be led regarding a further two children of another woman, aged approximately five and four whose names appeared as visitors in a Department of Corrective Services Inmate Profile Document because there was no information relating to them contained in a written statement provided to the Minister at least two business days before the hearing as required by section 500(6H) of the Act. I cannot take any consideration of their situation into account in coming to a decision in this matter, although I note that Ms Fatai said that she knew their mother, and that the children come to the Uelese home. Without any information about these children, other than a small amount of information that was provided by Ms Fatai under cross-examination, I am unable to determine whether or not visa cancellation would be in the best interests of these children. 14 As is evident from [64] of the AAT's reasons set out immediately above, the AAT noted that the fact that the appellant had two additional children was also confirmed in documents which were in evidence before the AAT, including two documents dated 30 June 2011 and 12 August 2011 respectively. Those documents, which were both entitled "Inmate Profile Document" and were issued by the NSW Department of Corrective Services, confirmed that, while he was imprisoned, the appellant was visited not only by his de facto partner and their three children, but also by two other people who were described as his sons. Those documents were tendered by the Minister, having been obtained under a summons to produce documents. Significantly, however, as the AAT Senior Member noted, the only information she had regarding the two further children was the very limited information given by Ms Fatai in cross-examination. The Senior Member held that she was unable to take even that limited information into account because of the operation of s 500(6H). Whether or not that finding involved jurisdictional error was one of the matters raised by the appellant below and is at the core of his appeal. 15 After addressing the relevant matters required by Direction 55, the AAT concluded that the appellant presented a risk of further harm to the Australian community which was unacceptable and that that risk was not outweighed by other considerations which weighed against cancellation of the appellant's visa, including the best interests of the appellant's three children from his relationship with his de facto partner. As noted above, the AAT held that it was unable to determine whether or not visa cancellation would be in the best interests of the appellant's other two children because of the constraints imposed by s 500(6H).

The proceedings below 16 The appellant purported to appeal the AAT's decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Because such a decision is a "privative clause decision" under s 474 of the Act, such an appeal was not available. However, on 4 February 2013, Yates J ordered that the matter proceed on the basis that it was an application under s 476A(1)(b) of the Act. This meant that the AAT's decision was reviewable only for jurisdictional error. 17 Before the primary judge, the appellant raised various matters which he argued constituted jurisdictional error on the part of the AAT. They may be summarised as follows: (a) the AAT failed to consider the interests of two of the appellant's five children; (b) the AAT failed to give sufficient weight to the appellant's claim to be a "changed man"; (c) there was a misunderstanding both by the AAT and in the pre-sentence report referred to above concerning various cultural matters which explained the appellant's reaction and attitude to his offences; (d) the AAT failed to appreciate the nature and scope of one of the assault convictions; (e) the AAT erred in relying on some aspects of Judge Ashford's sentencing remarks on 6 December 2011; and (f) the AAT had erred in equating a finding that the relationship between the appellant and his de facto partner was "on and off" with a conclusion that he had no ongoing relationship with their three children. 18 The primary judge found that none of those matters raised a jurisdictional error. For reasons which will emerge below, only the first of the matters is relevant. The appellant argued below that the AAT had erred on this matter based on the following three contentions: (a) it was not his fault that he had not disclosed the existence of his other two children because he said that he had acted on legal advice; (b) the AAT should have adjourned the hearing to allow the requirements of s 500(6H) to be met; and (c) the AAT should have pursued the matter itself once it became aware of the existence of the two additional children. 19 The primary judge rejected each of those three contentions for the following reasons (see [16]-[22]): (a) in circumstances where there was no suggestion that the appellant's legal advisor had acted fraudulently, the case was distinguishable from SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; (b) the AAT's conduct of the proceedings was constrained by s 500(6H) of the Act; (c) the AAT made a conscientious attempt to evaluate the material before it regarding the two further children, but in circumstances where no evidence could be led regarding those children, the evidence was inconclusive (the primary judge referred to [64] of the AAT's reasons); and (d) the primary judge said that he doubted whether the AAT's assessment would have been markedly affected by taking into account the interests of the other two children, but he concluded that "the real difficulty" for the appellant's argument was that s 500(6H) precluded the AAT, despite Direction 55, from taking into account oral evidence about matters which had not been disclosed in writing to the Minister at least two days before the hearing. 20 In applying that view of the effect of s 500(6H), the primary judge said that he appeared to be bound by the Full Court's decision in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 (Goldie). In particular, the primary judge drew attention to [31] of Goldie: … Once the Tribunal began a hearing, the entitlement of the appellant to rely on information and documents crystallised. That entitlement was limited to information contained in a statement or statements given to the Minister, and to documents copies of which he had given to the Minister, at least two business days before the hearing began. The resumption of an adjourned hearing is not a new hearing. 21 The primary judge also noted that similar views had been expressed in several decisions at first instance (namely Milne v Minister for Immigration and Citizenship [2010] FCA 495; (2010) 52 AAR 1 and Mordechai v Minister for Immigration and Citizenship (2011) 196 FCR 509). 22 Having regard to those matters, the primary judge concluded as follows at [22]: Accordingly, I feel bound by authority, and by considerations of comity, to conclude that the AAT was obliged at all stages of the hearing before it (whether it was adjourned or not) to disregard any material emerging in oral evidence concerning Mr Uelese's two youngest children.

The appeal 23 The appeal relates only to the first of the six matters raised by the appellant below. In particular, the appellant argues: (a) the primary judge erred in not finding that the AAT denied the appellant procedural fairness because it failed to consider the best interests of the appellant's other two children (ground 1); (b) the primary judge erred in failing to find that the AAT committed a jurisdictional error in failing to warn the appellant that it was not going to take into account the best interests of his other two children in circumstances where the appellant says that, it having emerged in the course of the AAT hearing that he had two additional children, he had a legitimate expectation that their interests would be taken into account in accordance with the Convention on the Rights of the Child (which was ratified by the Commonwealth Executive in 1990 and entered into force for Australia on 16 January 1991) (ground 2); and (c) the primary judge erred in failing to find that the AAT was obliged to consider as a primary consideration the interests of all of the appellant's five children (ground 3). 24 The reference to the Convention on the Rights of the Child requires a little elaboration. The appellant relies on Article 3(1) of that Convention for his asserted legitimate expectation, which relevantly provides: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 25 The appellant, who represented himself, filed an outline of written submissions in support of his appeal. At the commencement of the hearing of the appeal, he also handed up written submissions in reply. As the Minister points out in his outline of written submissions, the appellant's written submissions focused extensively on the argument raised by ground 2 of the notice of appeal, i.e. that the appellant had a legitimate expectation that the interests of his other two children would be taken into account by the AAT and the AAT failed to warn him that this was not going to occur. The Minister further argues that, because this argument was not run below, the appellant requires leave to do so. The Minister opposes leave being granted to permit the appellant to rely on ground 2 on the following grounds: (a) the allegation that the appellant received no relevant warning raises an issue of fact as to whether or not a warning had been given and, because the primary judge did not have before him a transcript of the AAT's hearing, fresh evidence would have to be adduced on the appeal; (b) the submission that the appellant received no relevant warning contradicted the AAT's statement in its reasons at [4] (set out at [13] above) that the appellant's representative had acknowledged the effect of s 500(6H) of the Act; and (c) in any event, the ground is without merit because any legitimate expectation which the appellant may otherwise have had was overridden by the statutory force of s 500(6H), which required the AAT to disregard the information concerning the two additional children. 26 For the following reasons, we would grant leave to the appellant to raise ground 2 of his notice of appeal, but would dismiss all three grounds raised by him and order him to pay the Minister's costs.

(a) Should the appellant be given leave to rely on ground 2 of the notice of appeal? 27 As to the issue of whether the appellant should be granted leave to raise ground 2 of the notice of appeal, the approach to be taken in determining whether or not to grant leave to permit the appellant to raise an argument for the first time before the Full Court is reflected in the following observations of the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]: The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. 28 In our view, leave should be granted in the circumstances of this case for the following reasons: (a) the Minister does not oppose the appellant relying on ground 1 of the notice of appeal (which claims a denial of procedural fairness and/or natural justice). Although there is considerable doubt as to the extent to which the so-called doctrine of legitimate expectation remains relevant in Australian administrative law following the High Court's decisions in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [105] per McHugh and Gummow JJ, at [121]-[122] per Hayne J and at [145] per Callinan J and Kaur v Minister for Immigration and Citizenship (2012) 246 CLR 636 at [65] per Gummow, Hayne, Crennan and Bell JJ, any continuing relevance appears to relate to determining the content of procedural fairness requirements. Thus there is an overlap between grounds 1 and 2 of the notice of appeal. The Minister does not oppose the appellant relying on ground 1. Given the overlap between the two grounds of appeal, we see no basis for differentiating between them. Grounds 1 and 2 effectively go hand in hand; (b) although the Minister opposes leave being granted in respect of ground 2, he did not claim that he would suffer any prejudice if leave were granted; and (c) for reasons which will emerge below, the question whether or not the appellant was warned that the AAT would not give primary consideration to the best interests of his two additional children is not relevant, so no issue arises as to the need to adduce fresh evidence.

(b) Consideration of the substantive appeal 29 For the following reasons, we consider that the appeal should be dismissed. First, dealing with grounds 1 and 2 together, the AAT's failure to consider the best interests of the appellant's other two children did not constitute a denial of procedural fairness or a disappointment of the appellant's asserted legitimate expectation because the content of the appellant's procedural fairness entitlements (and the AAT's corresponding procedural fairness obligations) was necessarily affected by the statutory constraint imposed on the AAT by s 500(6H) of the Act. The effect of that provision is clear. Where the pre-conditions to its engagement are satisfied, the provision operates to preclude the AAT from having regard to any information presented orally in support of an appellant's case where the information was not set out in a written statement given to the Minister at least two business days before the AAT holds a hearing. 30 As the primary judge noted at [20], in Goldie Gray J (with whom R.D. Nicholson and Stone JJ agreed) described the purpose of s 500(6H) (as well as s 500(6J)) as "drastic". Gray J added at [26] in Goldie that the legislative scheme of which s 500(6H) is a part "is designed to disadvantage an applicant for review" and "to advantage the Minister at the hearing" by forewarning him or her as to the entirety of the applicant's case. The wider purpose of the relevant legislative scheme which operates to alter the AAT's normal procedures was described by Gray J in [9] in the following terms: The purpose of making the changes to normal Tribunal procedures in the case of applications under s 500 of the Migration Act is to expedite the determination of those applications. Under the provisions of s 500, statutory time limits are shorter than those in the AAT Act and some time limits left by the AAT Act to the discretion of the Tribunal are fixed by s 500. Of particular importance is the effective overall time limit fixed by s 500(6L). By this provision, the Tribunal is required to have made its decision within twelve weeks after the day on which the person affected by the delegate's decision was notified of it. In the absence of a decision within that time, the Tribunal is taken to have affirmed the decision under review. 31 Gray J described the relevant legislative scheme in [25] as follows: The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant's case unless the Minister has had two business days' notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the eighty-four day time limit for the whole process, laid down in subs (6L). 32 The appellant did not directly challenge the correctness of Goldie. In our view, as a matter of comity, that decision should be followed. We do not consider that the views expressed there concerning the nature and scope of s 500(6H) are "clearly wrong". On the contrary, we consider that they are correct. 33 Accordingly, we consider that: (a) there was no obligation on the AAT to give any warning to the appellant that it would not consider the best interests of his other two children. That is because as a matter of law and consequential upon the effect and operation of s 500(6H) the AAT was disabled from having regard to the particular oral evidence (limited as it was) on that subject; (b) it was not open to the AAT to adjourn the hearing to enable the appellant to comply with s 500(6H) for the reasons given in Goldie at [31]. In any event, the appellant did not contest the Minister's submission that the appellant's legal representative did not apply for an adjournment of the AAT hearing; and (c) nor was there any obligation on the AAT to conduct its own inquiries and seek to collect additional information relating to those children. While an obligation might arise in some circumstances for the AAT to make an obvious inquiry about a critical fact, the existence of which is easily ascertained (see, for example, Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), no such obligation arose here because the issue of the appellant's two further children was not a critical fact in circumstances where those children were not put forward by the appellant as part of his case, nor did such a case clearly arise from the materials before the AAT (see Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24, (2012) 126 ALD 48 at [23]-[25] and [36] per Flick and Jagot JJ). Although an inference could be drawn from various of the documents which the Minister placed before the AAT that the appellant had two additional children, the appellant did not present his case on the basis that their best interests had to be considered. None of the written statements filed by the appellant (including his own written statement) made any mention of those children, let alone provide information concerning them. His case was presented exclusively on the basis that he had only three children. 34 Secondly, contrary to the appellant's contention, there is no irreconcilable contradiction between the AAT's statutory obligation imposed by s 499 of the Act to comply with Direction 55 (including its relevant mandatory requirements concerning children and their best interests) and the statutory constraint imposed on the AAT by s 500(6H). The Act is to be construed "on the basis that its provisions are intended to give effect to harmonious goals" (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70] per McHugh, Gummow, Kirby and Hayne JJ). And as their Honours further observed in that paragraph: Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. (Footnotes omitted). 35 In our opinion, there is no irreconcilable conflict between the relevant provisions of the Act here. By virtue of s 499 and the text of Direction 55, in conducting a review of a s 501 visa cancellation decision, the AAT is obliged in relevant circumstances to consider the best interests of minor children as a primary consideration in carrying out the balancing exercise described in Direction 55. But that obligation is subject to certain qualifications, including the procedural qualifications and constraints imposed by various provisions in s 500. Section 500(6H) is one of those constraints. 36 Because there is no irreconcilable conflict between the relevant provisions, we do not consider that this is a case where the Court is required to determine "the hierarchy of the provisions" as referred to in Project Blue Sky. If it were such a case, we have little doubt that s 500(6H) is to be viewed as a "leading provision", to which s 499 must give way. To use the language of Project Blue Sky, that construction best gives effect to the purpose and text of the provisions, while preserving the unity of the legislative scheme. 37 Thirdly, although the matter is not squarely raised in the notice of appeal, in his reply submissions, the appellant refers to advice which he received from his then legal representative in the AAT and contends that his acceptance of that advice did not excuse the AAT from acting in accordance with Australia's international obligations under the Convention on the Rights of the Child. Even if the appellant were permitted to rely on that submission, it must be rejected having regard to our findings above concerning the operation and effect of s 500(6H) of the Act and also the High Court's decision in SZFDE (which was relied upon by the primary judge in rejecting a similar argument). 38 Finally, insofar as the third ground of appeal is concerned, it too must be dismissed for substantially the same reasons as those which apply to grounds 1 and 2. There was no failure on the part of the AAT to take into account a consideration which it was bound to consider because s 500(6H) operated to limit the AAT's consideration of the best interests of the appellant's two further children to information which was set out in a written statement given to the Minister within the prescribed time. The AAT was legally obliged to disregard any information on the subject which was given orally in support of the appellant's case unless the information met the procedural requirements specified in the provision. 39 For these reasons, the appeal must be dismissed and the appellant ordered to pay the Minister's costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jagot, Griffiths and Davies JJ.