Materiality
71 Even if, contrary to the conclusions I have reached, there was a denial of procedural fairness to the applicant, in order for such a denial to be characterised as affecting the jurisdiction of the Tribunal, the denial would need to be of a nature which deprived the applicant of the "realistic possibility" of a different outcome on his review: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [24] and [31]. It is usually a question of fact on which an applicant bears the onus of proof: see SZMTA at [45]-[46].
72 In other words, if the Tribunal had, as the applicant submits it should have, adjourned the hearing and considered the material from Partner B, has the applicant established, as a matter of fact, that there was a "realistic possibility" the Tribunal might have reached a different conclusion on the review?
73 That question needs to be addressed not simply by considering the remainder of the Tribunal's reasoning as it is expressed. The "realistic possibility" test (as with the approach in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147, reaffirmed by members of the High Court in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [43], [53] and [60]) is a hypothetical exercise. Here, it involves considering what might have happened if, before the hearing started, the Tribunal had taken the information from Partner B into account, and ultimately, what effect the subject-matter of the documents she provided was likely to have had on the Tribunal's reasoning process and its opinions about the correct or preferable decision on the review.
74 Adopting that approach, and even if contrary to the conclusion I have reached there was a denial of procedural fairness, in my opinion, the applicant was not deprived of the possibility of a different outcome on the review by the Tribunal's failure to adjourn so it could consider Partner B's late submitted material.
75 Assessing whether there was a realistic possibility of a different outcome for the applicant presents a particular challenge when, as here, the particular factor to which the jurisdictional errors are said to relate (the best interests of the applicant's children) was a factor which the Tribunal said favoured revocation. In other words, in terms of its contribution in the Tribunal's reasoning to the outcome of the review, the factor of the best interests of the applicant's children was already weighed by the Tribunal in favour of the outcome which the applicant sought.
76 As counsel ultimately accepted, this analysis reduces to whether the Court accepts that the weight given by the Tribunal to the factor of the best interests of the children would have been sufficiently different that it may have resulted in a different outcome to the review: that is, to the revocation of the visa cancellation.
77 In that context, counsel for the applicant, in written submissions in reply and in oral argument, relied on three particular aspects of Partner B's letter which they contended realistically could have altered the weight the Tribunal gave to the factor of the best interests of the applicant's children, to a sufficient level such that this factor could have persuaded the Tribunal to revoke the visa cancellation. That last aspect was not expressly stated by counsel, but it must be implicit in the submissions for it to be consistent with the way the concept of materiality is said to operate. I set out the three aspects (from [16(a)]-[16(c)] of the applicant's submissions in reply) in full:
(a) The [Partner B] letter contained representations about Partner B and Partner A's reliance on the Applicant's future financial contribution to their care and support of the children. The Applicant was asked questions by the Tribunal about the quantum of his financial support of the children prior to his incarceration in 2012 (T90:95 - T91:9). The Tribunal made a finding, at [113(c)], that "[t]here is no corroborating evidence that Partner A or the children he has with Partner A are financially reliant on [the Applicant], who has been imprisoned since late 2012". The [Partner B] letter contained that evidence. Moreover, the Tribunal's erroneous understanding of the Applicant's relationship with his step-son is captured at T107:L40. It is plain that there has been no consideration by the Tribunal of a tangible financial contribution that the Applicant could make to the interests of his biological children, or those of his step-son, should he be allowed to remain in Australia.
(b) The [Partner B] letter also contained representations about the Aboriginality of Partner A's children, and the associated cultural and financial needs of those minors, both present and future (SCB 4). The fact of their Aboriginality is simply not referred to during the course of the hearing. There is no consideration of those needs, nor the way in which the Applicant's return to Samoa would impact those needs, by the Tribunal in its decision.
(c) The [Partner B] letter contained representations about the role that the Applicant could play in helping his children forge a connection with their respective cultural backgrounds, should he be allowed to remain in Australia (SCB 4 and 5). These matters were not subject of viva voce evidence from the Applicant during the hearing. Mr Brown did not ask about them. There was no consideration of the children's interest in forging a connection with their respective cultural backgrounds by the Tribunal in its reasons.
(Footnotes omitted.)
78 As to (a), and as I have found above, I do not agree that Partner B's letter did any more than express her aspirations about how helpful it would be to her, to Partner A, and to their respective children, if the applicant were to contribute in the future to support their financial needs. What the Tribunal said at [113(c)] of its reasons was a finding open to it on the evidence, as was the finding at [138]:
The Tribunal notes on his own evidence, however, Mr Umi has not worked since 2009 and there is no evidence of a realistic prospect of work on release [from prison].
79 No additional evidence about the aspirations of Partner B was likely to have had any effect on the Tribunal's approach.
80 As to (b), it is apparent from [112] of the Tribunal's reasons, and its reference to what the applicant said in his original revocation request, that he was aware Partner A identified as Aboriginal, and therefore aware that their children may identify as Aboriginal. Further, it is difficult to understand what additional weight this factor could objectively have caused the Tribunal to attribute to the children's best interests, when it was not the applicant who identified as Aboriginal, and the applicant himself had not said anything about his intentions or commitment to assisting his children to foster and develop their Aboriginal identities, nor why he would need to be present in Australia to do that.
81 As to (c), similar reasoning applies. It is difficult to understand what additional weight this factor could objectively have caused the Tribunal to attribute to the children's best interests, when the applicant himself had not said anything about his intentions or commitment to assisting his children to foster and develop a connection with their respective cultural backgrounds, which I take to mean both their Samoan heritage and their Aboriginal heritage. Ultimately, as to both factors (b) and (c), if the Tribunal were to give more (and significantly more) weight to the best interests of the applicant's children because of these matters, it would have needed to be persuaded about the applicant's commitment to and interest in these matters. The applicant's submissions do not point to anything in his material before the Tribunal about these matters. He did not raise them, and they were not his focus.
82 I note again, that in aspects of this submission, impermissibly, the applicant seeks to rely on what the Tribunal said during the review hearing, rather than on its reasons, to impugn the Tribunal's decision.
83 Further, even though the Tribunal did conclude the best interests of the applicant's children favoured revocation, it did so in a way which gave effect to its findings that the applicant had not always had his children's best interests in the forefront of his own mind. To demonstrate that the Tribunal's reasoning, even on this factor, was more nuanced than the applicant's submissions appear to acknowledge, it is necessary to extract the whole of the Tribunal's findings on the "best interests" factor:
The Tribunal finds there are potentially three biological children and a grandchild under the age of 18, whose interests may be enlivened within the terms of the Direction.
The evidence discloses that through his own criminal conduct, Mr Umi has absented himself from members of his family, including his children, for prolonged periods. That includes disturbing incidents recorded by Police where Mr Umi has been violent against women in his life. It also includes an occasion when Police reported that a number of Mr Umi's children were present when he committed domestic violence against their mother.
Mr Umi's contact with his children since late 2012 has predominantly been via telephone calls and others have assumed primary parental and supporting responsibilities.
Mr Umi's role in the lives of his children can be considered sporadic and unreliable since his imprisonment in 2012. The Tribunal is unable to reliably discern, in the absence of evidence from Mr Umi's former partners, or his children, or others with personal knowledge about the children, how the individual interests of the children may differ. That said, the Tribunal concludes that:
(a) the interests of the grandchild Mr Umi refers to can be given very little weight, given he has never met the child;
(b) the interests of the child Mr Umi has with Partner B, who is approaching adulthood, can be given some weight; and
(c) the interests of the two youngest children Mr Umi has with Partner A are given most weight given the specific circumstances of this case. These children may most benefit from a close and meaningful paternal relationship with Mr Umi.
The Tribunal finds that on balance this primary consideration weighs in favour of revoking the cancellation of Mr Umi's visa.
(Footnotes omitted.)
84 Paragraph [115] of the Tribunal's reasons should also be set out:
The ex-partners Mr Umi refers to were not called as witnesses during the hearing and could not be cross-examined. No documentary evidence was before the Tribunal from the children or caregivers of the children whose interests Mr Umi invokes. That said, the Tribunal is satisfied, from the attendance of four of Mr Umi's five biological children at the hearing, that he has a close and continuing relationship with them and that the love they share is genuine. These children may want to have a continuing relationship with Mr Umi in the future, which would be significantly complicated if he were repatriated to Samoa.
85 The applicant's counsel relied on this paragraph to illustrate that if the Tribunal had adjourned so that it could lawfully consider Partner B's material, then there would have in fact been some "documentary evidence…before the Tribunal from the children or caregivers of the children whose interests Mr Umi invokes". That is so. However, that fact in itself is not sufficient for materiality to be demonstrated. The question is: was there a "realistic possibility" that such documentary evidence could have resulted in a different outcome on the review for the applicant? As I have sought to explain, I do not consider the applicant has proven it could have.
86 Finally, I also take into account the other parts of the Tribunal's reasons where it gave beneficial consideration to matters related to the applicant's family, outside its consideration of the best interests of his children as a separate factor. For example, at [71]:
Mr Umi repeatedly expressed the love he has for his children and wanted to remain in Australia to support and look after them. He claims to speak to his children regularly by telephone. The Tribunal notes that four of Mr Umi's five biological children attended the hearing at some stage to support him. When asked about maintaining contact with his children if repatriated, Mr Umi said he would: 'try to survive the best way I can' and, after establishing himself in Samoa, he would explore avenues to remain in contact with them.
87 At [144]:
The Tribunal is satisfied Mr Umi's strongest links are in Australia, including with his children, who are Australian citizens.
88 And at [155]-[156]:
The Tribunal acknowledges that if returned to Samoa, Mr Umi would lose easy physical access to the family and friends he has in Australia, and to income support and other payments. He would also be subject to the stresses of re-establishing himself in a country he last lived in at the age of 19. That includes trying to re-connect with relatives, securing stable accommodation, and maintaining basic living standards. His aspiration to play a more prominent parental role in the life of his children would also be significantly complicated, potentially causing Mr Umi tangible distress. Under such circumstances, his psychological health may be impacted.
The Tribunal accepts that there are impediments confronting Mr Umi in re-establishing himself in Samoa and this consideration weighs in favour of revocation.
89 I accept the Minister's submissions that these other aspects of the Tribunal's reasons demonstrate that, in fact, it gave considerable weight to matters related to the applicant's family throughout its reasoning. However, its firm view about the matters adverse to the applicant could not be shifted. I do not consider that if it had read and actively engaged with the content of Partner B's letters, and the attached documents, its opinion would have changed. Whether viewed through the prism of the Tribunal's existing reasons, or objectively outside those reasons, the material from Partner B was not of a nature that it would have added anything of real substance to the clear picture which the applicant himself had already painted about the damaging effects on his children of him being returned to Samoa.
90 Reading the whole of the Tribunal's reasons fairly, I do not accept that even if Partner B's information had been considered by the Tribunal, there was any possibility, let alone a realistic one, of a different outcome on the review. What Partner B had to say, even taking the three specific aspects highlighted by the applicant's counsel, was simply more detail about, or more variations on, why it was important for the applicant to be able to remain in Australia with his children. Some of the claims (such as the financial support issue) were expressions of aspiration by Partner B, no more than that, and were less compelling in the face of the Tribunal's express finding that the applicant may not secure work on his release in any event.
91 Rather, on a fair reading of the Tribunal's decision and the adverse findings it made, the Tribunal was so strongly persuaded about the risk to the Australian community if the applicant remained in Australia, and about what the expectations of the Australian community would be, that even giving more weight to the best interests of the applicant's children would not have dislodged its conclusion on the review. That can be seen from both the detail in its reasons about the applicant's previous offending, and from the tenor of its reasons. Its conclusions suffice to illustrate this:
Mr Umi's criminal offending has caused harm to members of the Australian community. Despite previous lenient treatment by the courts and frequent rehabilitative opportunities, Mr Umi continued to re-offend. He received multiple custodial sentences between 2004 and 2013, and was sentenced as a serious violent offender at his most recent court appearance. Mr Umi's conduct reflects a disturbing propensity for violence and a lack of respect for Australia's law enforcement framework.
If Mr Umi were to repeat his violent offences, the harm that may be inflicted is potentially very serious, encompassing serious injury or death. The Tribunal is unpersuaded by his claims about rehabilitation, noting that despite attendance on a number of courses and programs over the years, he has consistently re-offended. Moreover, the incidents of misconduct recorded against him during his current sentence do not reflect someone with persuasive insight, remorse and an intention to live a law-abiding life. Mr Umi's risk of reoffending is real and the potential harm caused by his recidivism is so serious that it constitutes an unacceptable risk to the Australian community.
Mr Umi clearly loves his children and aspires to reconnect more meaningfully with them in the future. Notwithstanding a dearth of evidence from his minor children or their guardians, the Tribunal is satisfied Mr Umi's children reciprocate his love and want him to remain in Australia. The Tribunal finds this primary consideration weighs in favour of revoking the cancellation of Mr Umi's visa, but less so given Mr Umi's role in the lives of his children can be considered sporadic and unreliable at best since his imprisonment in 2012. The interests of the two youngest children Mr Umi has with Partner A are given most weight given the specific circumstances of this case. These children may most benefit from a close and meaningful paternal relationship with Mr Umi.
Mr Umi's serious and prolonged criminal conduct is at odds with the reasonable expectations of the Australia community. Informed of the specific circumstances of his case, the broad middle ground of Australian society would expect that Mr Umi should not hold a visa.
The Tribunal is satisfied that the strongest family and social ties Mr Umi has are in Australia and this consideration weighs in favour of revocation.
The Tribunal accepts there are impediments confronting Mr Umi in re-establishing himself in a country he left as a 19-year-old. That includes locating stable accommodation, employment and basic living expenses. His unchallenged evidence is that he has no family or friendship networks to draw on in Samoa, because his mother lives in American Samoa. On balance, the Tribunal finds this consideration weighs in favour of revocation.
Having weighed all of the considerations individually and cumulatively, the weight of evidence supports a finding there is not another reason why the decision to cancel Mr Umi's visa should be revoked. That is because 'Protection of the Australian community' and 'Expectations of the Australian community' weigh very strongly against revocation. These considerably outweigh the primary consideration of 'Best interests of minor children in Australia,' and the other considerations of 'Strength, nature and duration of ties' and 'Extent of Impediments if removed,' which favour revocation.
92 Further, the Tribunal's reasons disclose it had serious doubts about the applicant's prospects of remaining drug free, and being able to avoid future re-offending. It did not accept the applicant's evidence about those matters:
The Tribunal acknowledges the vocational and rehabilitative courses undertaken by Mr Umi, which are clearly a step in the right direction. The responsibility he has been given in prison, particularly in mentoring other Islander inmates is to his credit. The Tribunal accepts he takes that role seriously. The Tribunal also accepts as genuine Mr Umi's aspiration to reconnect more meaningfully with his children and involve himself in activities, like coaching a children's rugby team. But the specific circumstances of Mr Umi's case do not reflect enduring rehabilitative gains or a reliable commitment that he will live a law-abiding life it released. Notwithstanding his heartfelt aspirations and expressions of remorse at the present hearing, the evidence shows his violent offending has persisted after similar submissions to the courts in the past. The incidents of misconduct recorded against him in prison, particularly illicit drug-taking since 2017 and violence involving other inmates, detract from his submissions about remorse, insight and rehabilitative progress. Remorse must be more than words in the context of a court or Tribunal appearance. It must be evident from a person's actions. The evidence shows Mr Umi's past submissions about remorse and rehabilitation have proven consistently unreliable. The Tribunal cannot take him on his word alone that he will 'clean' himself up prior to release. Having been in prison since 2012, he should have made much more substantial progress with that aspiration by now. The Tribunal is unpersuaded that the long-standing link between Mr Umi's drug abuse and violent offending has been effectively addressed.
Any rehabilitative progress Mr Umi has made is incomplete at best, relatively short-lived, and has not been tested in the community. The evidence supports a conclusion that Mr Umi's risk of reoffending is real and the potential harm arising from any repeat of his violent conduct is so serious it constitutes an unacceptable risk to the Australian community. It follows that this primary consideration weighs very strongly, against revoking the cancellation of his visa.
93 On the assumption (and without deciding) that the extra step of a materiality assessment has a role to play in determining if a finding of legal unreasonableness goes to the jurisdiction of the Tribunal, I would have reached the same conclusion as I have on materiality in respect of the procedural fairness arguments.