Wardhana v Minister for Immigration and Multicultural Affairs [2025] FCA 1455

(a) The Tribunal misunderstood or misapplied the mandatory relevant consideration in [9(1)(a)] and [9.1] of "Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA" (Direction No. 110) (concerning legal consequences) or, alternatively, failed to lawfully consider a representation made by the Applicant that was relevant to its consideration of the legal consequences of the decision; and

(b) The Tribunal denied the Applicant procedural fairness by failing to adequately explain to him, or alternatively remind him, of the privilege against self‑incrimination.

1. As outlined above, ground 1 concerns Direction No. 110 with which the Tribunal must comply in deciding whether to revoke a cancellation decision under s 501CA(4) of the Act: Act, s 499(2A).
2. Paragraph 9(1) of Direction No. 110 deals with Other Considerations the Tribunal must take into account "where relevant" in making a decision under, amongst other provisions, s 501CA(4) of the Act. The paragraph states:

(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on Australian business interests.

1. The content of the "legal consequences" consideration is given content by [9.1] of Direction No. 110 which relevantly provides as follows:

9.1. Legal consequences of decision under section 501 or 501CA

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

1. The Applicant's primary case with respect to ground 1 concerns how the Tribunal dealt with [9.1(a)] of Direction No. 110.
2. At the outset of the AAT Decision, the Tribunal addressed the legal consequences of its decision, stating:
   1. If the cancellation of the Applicant's visa is revoked, he will be able to lawfully return to the Australian community. If it is not, he would be precluded from applying for another visa except for a protection visa or a limited term bridging visa. He has not claimed to fear harm in Indonesia, nor has he made a protection claim. Non-revocation would also make him liable to be removed to Indonesia as soon as reasonably practicable, and in the meantime, he would remain in immigration detention. There is no evidence that, in that event, there would be any likely difficulty or delay in bringing his detention to an end by deporting him. He did not claim, and the evidence does not suggest, that he is suffering any particular hardship in detention. Indeed, he has access to a drug‑treatment program and mental health support there.

1. The Tribunal then went on to address Direction No. 110. Of present relevance, this included extracting the Other Considerations at [9] of Direction No. 110 as set out above. The Tribunal then found that:
   1. The Applicant did not contend, and the evidence did not suggest, that Other Considerations (a) or (c) are engaged.
2. The Applicant contends that this amounted to jurisdictional error because the Tribunal failed to consider the direct and immediate legal consequences of an adverse decision under s 501CA(4) of the Act. Specifically, the "human implications" for the Applicant of continued detention pending his removal from Australia and the operation of s 501E of the Act, which precluded the Applicant from applying for another visa without first departing Australia: cf, Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [84] (Kenny, Flick and Griffiths JJ); see also, NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [9] and [10] (Allsop CJ and Katzmann J).
3. The Applicant's alternative case with respect to ground 1 concerns the following representation (in emphasis) by the Applicant in a supplementary statement that formed part of the material before the Tribunal:

D) the Minister accepts (para 35 - para 36) my genuine efforts to change and reform myself. I have a job offer from my brother-loading containers. Considering the preceding this will further reduce my risk to reoffend.

Respectfully, I have a loving relationship with my eight year old child who is an Australian citizen and my removal from Australia will have a massive impact on her and me as well. There is no substitute for physical contact. It is absolutely the most important thing for me to be a father, raise and teach my daughter my language, culture and traditions. ...

(Emphasis added)

1. It is uncontroversial that the reference in the supplementary statement to "para 35 - para 36" is a reference to the statement of facts, issues and contentions filed by the Minister in the Tribunal. Those paragraphs concerned, respectively, contentions made by the Minister about the seriousness of the Applicant's offending (paragraph 35) and the matters the Tribunal should have regard to in considering the need to protect the Australian community from harm (paragraph 36).
2. Nonetheless, the Applicant argues that in dealing with the legal consequences of its decision under s 501CA(4) of the Act, the Tribunal failed to consider the supplementary statement, and this constituted jurisdictional error.

1. The Minister does not put in issue that the legal consequences of its decision was a mandatory relevant consideration for the Tribunal in making the decision under s 501CA(4) of the Act. Neither does the Minister put in issue that the Tribunal was required to "read, identify, understand and evaluate the representations" made by the Applicant attributing "whatever weight or persuasive quality it thought appropriate" to them: cf, Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ).
2. Rather, the Minister contends that the Tribunal (at [8] of the AAT Decision) "accepted" the legal consequences of the decision, including the impact on the Applicant personally. The Minister argues that the "whole" of the AAT Decision was premised on an appreciation of those legal consequences, such that the Tribunal should be taken to have subsumed that consideration into its evaluation of the other considerations prescribed by Direction No. 110 [RS at [11]]: cf, Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143 at [37] to [38] (Charlesworth J). The Minister submits that it follows that the Court should be careful in dealing with this ground because it is at risk of transposing a requirement to give genuine consideration to the human consequences of an adverse decision to an impermissible merits review: cf, Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3] (Allsop CJ) and DTCB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1098 at [24] to [26] (SC Derrington J).
3. Insofar as it concerns the alternative case, the Minister contends that the supplementary statement ought to be considered in its "forensic context", namely (on the Minister's case) the apparent absence of a clear submission or representation by the Applicant directed at the considerations identified in [9(1)(a)] or [9.1] of Direction No. 110. The Minister asserts, in that regard, that statement ought to be characterised as concerning the impact of the Applicant's removal on others (such as his child) or "broader issues", which is relevantly different from the legal consequences of the decision.
4. The primary and alternative case regarding ground 1 are inextricably linked because each concern the way in which the Tribunal dealt with the legal consequences of its decision. It is, however, convenient to begin with a consideration of the representation the subject of the alternative case.

The supplementary statement comprised a representation about the legal consequences of an adverse decision

1. I do not accept the Minister's characterisation of the supplementary statement as outlined at [18] above. It is correct, as the Minister contends, that the statement concerned the impact of the Applicant's removal on his child. But it went beyond that to making a representation about the impact of the Applicant's removal on him. Specifically, the adverse impact on the Applicant given the importance he attached to having physical contact with his daughter, raising and teaching her his language, culture and traditions (Representation).
2. I do not accept the Minister's submission that the Representation raised a matter different from the legal consequences of the decision. The Representation did not explicitly engage [9.1(a)] of Direction No. 110 as it was directed to contentions made by the Minister about the seriousness of his offending. But the inability of the Applicant to have physical contact with his daughter is clearly a "human consequence" of the decision the Tribunal was asked to make: cf, Taulahi at [84]. The immediate and statutorily prescribed consequence of an adverse decision under s 501CA(4) of the Act is that the Applicant would be liable to be removed from Australia, thereby losing the ability to be a physically present father to his daughter, who is an Australian citizen, and lives in Australia.

The Tribunal was required to consider the Representation

1. A Tribunal is required to consider a claim the subject of clearly articulated arguments relying on established facts or clearly emerging from the materials: cf, AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18] (Collier, McKerracher and Banks-Smith JJ); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55] and [68] (Black CJ, French and Selway JJ). While such a finding is not to be made lightly, a court will more readily conclude that a claim clearly emerges from the material when a party is unrepresented: AYY17 at [18], citing NABE at [68] and Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77 at [21] (Flick J).
2. The Representation met the required threshold. Accepting the context in which it was made, the Representation nonetheless clearly articulated a concern about the human implications of an adverse decision on the Applicant, given his stated desire to be a physically present father. The Representation arose from established facts because the statutory consequence under s 198 of the Act of a decision not to revoke cancellation of the visa is that the Applicant would be liable to be removed from Australia. As such, the Tribunal was required to consider it: cf, AYY17 at [18].

The Tribunal did not consider the Representation

1. Turning then to whether the Tribunal considered the Representation, the AAT Decision is not to be construed minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ), citing Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ). But the AAT Decision is to be understood as recording the steps that were, in fact, taken by the Tribunal in arriving at its decision: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1368 at [26] (Burley J). Moreover, it is not appropriate to infer that the Tribunal made findings or drew conclusions that are not mentioned in the AAT Decision: CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124; (2022) 294 FCR 318 at [133] (Katzmann, Charlesworth and Burley JJ).
2. As the Minister highlights, at various parts of the AAT Decision the Tribunal addressed the relationship between the Applicant and his daughter (referred to as "Child A"). In addressing Primary Consideration 3 (the strength, nature and duration of the ties the Applicant has to the Australian community) the Tribunal stated:
   1. The only familial ties the Applicant has to the Australian community are with Janine and his daughter, although it seems he is well-liked by the rest of Janine's family ...
   2. I accept on the evidence before me that the Applicant has a loving relationship with Child A that is beneficial to her. I further accept that he has made a consistent effort to maintain and nurture this relationship, for example by calling her every evening ...
   3. I do not accept, as Janine and her mother stated, that his daughter would feel abandoned if he were removed to Indonesia. ... I accept that she dearly wishes the Applicant could stay in Australia and be a physically present parent to her.

1. The Tribunal subsequently stated in addressing Primary Consideration 4 (best interests of minor children in Australia):
   1. The Applicant wants to be involved in his daughter's life, for example to walk her to school, and to provide financial support. I accept that she has missed him while he has been physically absent and she wants him to be physically present. If he gets his visa back, he plans to live in Brisbane first, earn enough money to move to Victoria without risking homelessness, and then move to be close to his daughter. I accept that if he were to achieve this, he would potentially have a significant, regular presence in his daughter's life, which is what she wants. ... Ultimately, the significant positive contribution the Applicant could make in his daughter's life by being physically present in Australia is contingent and uncertain.

1. Finally, in dealing with Other Consideration [9(b)] (the extent of impediments if removed) the Tribunal outlined:
   1. The Applicant said he would find a way to contact his daughter in Indonesia. I am satisfied that, contact with her would be psychologically beneficial to him.
2. The Tribunal concluded:
   1. I am now required to weigh all of the Considerations in accordance with the Direction. Primary Considerations 1, 2 and 5 each weight [sic] moderately against revoking the visa cancellation. Primary Consideration 3 and Other Consideration (b) each weigh moderately in favour of revoking the visa cancellation. Primary Consideration 4 attracts low weight in favour of revoking the visa cancellation. Primary Considerations 1, 2 and 5 combined outweigh Primary Considerations 3 and 4, and Other Consideration (b).
   2. Therefore, there is not another reason to revoke the cancellation of the Applicant's visa. Section 501CA(4) of the Act is not satisfied.

The Minister's submissions in reliance on Stoneley

1. The Minister characterises the AAT Decision as being akin to that in Stoneley. In that case (as here) the applicant made representations to the effect that an adverse decision would have significant human consequences, relevantly including that he would be separated from his son: Stoneley at [25].
2. In dealing with the "legal consequences" of the decision, the Tribunal stated that the applicant had raised no concerns other than, relevantly, those relating to his removal and potentially permanent separation from family and friends: Stoneley at [27]. The Tribunal "accept[ed]" that the removal and visa limitations, which result from an adverse decision, were "an intended consequence" of the operation of (in that case) s 501 of the Act: Stoneley at [27]. The Tribunal went on to attribute the "legal consequences" consideration "neutral weight": Stoneley at [27].
3. Elsewhere, in considering the extent of the impediments the applicant may face if removed from Australia, the Tribunal extracted and considered the submissions the applicant made regarding his ability to guide his son as a present and loving father if he remained in Australia: Stoneley at [28]. The Tribunal accepted, in this respect, that the applicant would likely suffer significant emotional hardship by reason of his separation from his son if removed: Stoneley at [29].
4. The applicant in Stoneley argued that the Tribunal had erroneously recorded that he had made no submission that the legal consequences of the decision was a matter that should weigh in favour of revocation of the cancellation of his visa: Stoneley at [31]. It was further contended the Tribunal erred by finding that removal and visa limitations were an "intended consequence" of the Act and affording the legal consequences consideration "neutral weight": Stoneley at [30] to [33], citing Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273.
5. Justice Charlesworth rejected the latter contention (at [36]) before going on to find that:

[37] The Tribunal plainly understood that revocation of the cancellation decision would mean that the applicant would avoid the statutory consequences that he otherwise faced at a very personal level. The entire Reasons are dedicated to considerations weighing for or against revocation to varying extents. That demonstrates an appreciation on the Tribunal's part that the question of whether the applicant should suffer the adverse legal consequences of the cancellation decision was a matter for its own evaluation having regard to the particular facts and circumstances of his case. It is true that the particular facts and circumstances are not grappled with by the Tribunal under the heading "Legal consequences of decision under section 501 or 501CA". However, the reason for that is obvious: they are dealt with at length elsewhere by the Tribunal, culminating in findings that weighed in favour of a decision to revoke the cancellation decision and so spare the applicant the legal consequences that would otherwise flow from it. Unlike the facts in Singh, the Tribunal may be understood to have observed (correctly) that the legal consequences of its own decision are subsumed in its evaluation of other considerations prescribed by Direction 99. To my mind, that explains why the Tribunal used the language of neutral weight, and why it observed that the applicant had made no additional submission on the topic warranting further consideration under the discrete heading of "legal consequences". The circumstances might have been different if the applicant was a person who faced prolonged or indefinite detention, whether because he was a person to whom Australia owed non-refoulement obligations or otherwise.

(Emphasis added)

The AAT Decision is distinguishable from Stoneley

1. The Minister submits that, as in Stoneley, a fair reading of the AAT Decision is that the Tribunal proceeded on the basis that the Applicant had not raised concerns about the legal consequences of the decision other than those relating to his removal and potentially permanent separation from family and friends and the challenges of his re-settlement in Indonesia, and such matters were considered.
2. I accept that the AAT Decision at [8] is to be read as reflecting that the Tribunal appreciated there were legal consequences for the Applicant should it decide not to revoke the cancellation decision. It is also evident from the AAT Decision that the Tribunal grappled with certain aspects of that consequence arising from the particular facts and circumstances of the case. This includes, relevantly, an evaluation of the impact on the Applicant's daughter (Child A) should an adverse decision be made under s 501CA(4) of the Act and the Applicant be removed from Australia.
3. What is not apparent, however, from the AAT Decision is an evaluation of the Representation. The Tribunal acknowledged that the Applicant wanted to be involved in his daughter's life: AAT Decision at [113]. The Tribunal also accepted that the Applicant had a loving relationship with his daughter that he had made a consistent effort to maintain and nurture: AAT Decision at [105]. But it is not evident from the AAT Decision that the Tribunal considered the human implications for the Applicant if an adverse decision was made and he was liable to be removed from Australia.
4. The closest the Tribunal comes to dealing with the Representation is at [125] of the AAT Decision. The Tribunal there acknowledged that contact between the Applicant and his daughter would be psychologically beneficial to him. But that finding is made in the context of the Applicant's statement that he would find a way to contact his daughter in Indonesia. It is, therefore, materially different from the Representation which concerned the stated desire of the Applicant to be a physically present father to his daughter in Australia. I am not persuaded that it is possible to read into that passage an evaluation of the Representation: cf, Plaintiff M1/2021 at [24]. To do so would be to draw an inference that is not apparent from the AAT Decision itself: CKT20 at [133].
5. Nowhere does it appear from the AAT Decision that the Tribunal read, identified or understood the Representation, namely, that an adverse decision under s 501CA(4) of the Act would have a "massive impact" on the Applicant, because he considered there was "no substitute for physical contact" and it was the "most important thing" for him "to be a father, raise and teach [his] daughter [his] language, culture and traditions": cf, Stoneley at [37] and DTCB at [27] to [34].

Did the AAT Decision at [16] comprise jurisdictional error?

1. Turning then to the primary case with respect to this ground, there is room for debate as to the precise meaning of the AAT Decision at [16]. As the Minister contends, it may reflect that the Representation was not explicitly directed to the considerations identified at [9(1)(a)] of Direction No. 110 and a particular focus by the Tribunal on the non‑refoulement obligations identified in [9.1(2)] of Direction No. 110. Alternatively, as the Applicant contends, it may reflect an error by the Tribunal in failing to appreciate the fact or scope of the "legal consequences" consideration including, in the particular circumstances here, the Representation.
2. Ultimately, it is not necessary to resolve that debate given the conclusion I have reached on the alternative case with respect to ground 1. On any view, the AAT Decision at [16] is consistent with that conclusion because it reflects a failure by the Tribunal to identify and evaluate the Representation as part of its consideration of the legal consequences of the decision, as required by Direction No. 110.

1. Turning to the question of materiality, the relevant inquiry is whether there is a realistic possibility that the AAT Decision, in fact, could (not would) have been different if the error had not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [7] and [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). The qualification, "realistic", is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable: LPDT at [14]. While the onus is on the Applicant, the threshold of materiality to establish whether an error is jurisdictional is not demanding or onerous: LPDT at [10] and [14].
2. Here, the Tribunal did not follow the required process of reasoning because it was required, and failed, to consider the representation as part of its evaluation of the legal consequences of the decision. The error contributed to the evaluative and discretionary decision the Tribunal made in that it did not deal with the representation as part of its assessment of Other Consideration [9.1(a)] of Direction No. 110, or at all. This can be seen from [128] of the AAT Decision where the Tribunal "weigh[s] all of the Considerations in accordance with the Direction", but makes no reference to Other Consideration (a) (the legal consequences of the decision).
3. The Minister argues that the error is not material because the Tribunal plainly understood the legal consequences facing the Applicant and the AAT Decision was dedicated to considerations weighing for and against revocation based on those legal consequences. As such, the Minister contends that the error could not realistically have resulted in a different decision. I am not persuaded by that submission. It would involve improper speculation in attempting to discern how the Tribunal would have reasoned with respect to the representation, had it not departed from the required process: LPDT at [36]. The fact that the Tribunal appreciated the legal consequences facing the Applicant does not provide a basis upon which it could affirmatively be concluded that the outcome would inevitably have been the same, had the Tribunal dealt with the Representation as part of its consideration of those legal consequences: cf, LPDT at [23]. It follows that there is a possibility, not fanciful or improbable, that the decision that was made, in fact, could have been different if the error had not occurred. The threshold of materiality has been met.

1. Ground 2 concerns the privilege against self-incrimination. By this ground, the Applicant alleges that he was denied procedural fairness because the Tribunal failed to ensure that he understood his right to invoke the privilege before he answered certain questions that may have exposed him to self-incrimination.

1. The principles governing the requirements of procedural fairness in the context of the privilege are well-established and are not relevantly in dispute. Those principles may be summarised as follows:

(a) The privilege against self-incrimination is a basic and substantive common law right: Sorby v Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281 at 294 (Gibbs CJ); X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [104] (Hayne and Bell JJ). At the time of the remitted hearing, the privilege was reflected in the exception in s 62(4) of the Administrative Appeals Tribunal Act 1975 (Cth) to the statutory obligation to answer questions;

(b) The Tribunal may deny an unrepresented party procedural fairness if its questioning (or that of a cross-examiner) strays into matters about which the unrepresented party could invoke the privilege without warning the person: Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 at [37] (Allsop CJ) and Verrill v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 802 at [35] (Thawley J); see also, SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1; [2007] FCAFC 64 at [74] to [77] (Lander J), [112] (Graham J) and [160] to [169] (Rares J) regarding legal professional privilege;

(c) The content of the requirement of procedural fairness is context dependent and must be approached on the basis of what is necessary to avoid practical injustice: Hempenstall v Minister for Home Affairs [2020] FCA 686 at [63] (Kenny J), citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] to [38] (Gleeson CJ) and Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [57] (Gageler and Gordon JJ);

(d) A careful analysis of the facts in any given case may be required to assess whether the privilege arises: Verrill at [36], citing Sorby at 290 (Gibbs CJ). The privilege will apply to evidence comprising a clear confession to an offence and evidence that may tend to incriminate the person or may tend to prove that the person has committed an offence: Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080 at [58] (McDonald J), citing Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 494 (Mason CJ) and Evidence Act 1995 (Cth), s 128;

(e) In practice the privilege is invoked by the person who objects to responding to the question, at which point it falls to the Tribunal to determine whether answering the question might tend to incriminate the person: Puohotaua v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 141 at [42] (Downes J, O'Sullivan J agreeing). In assessing whether there are reasonable grounds for the objection, the court must assess whether there is a "real and appreciable risk" of prosecution if the relevant information is disclosed: Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 273 CLR 235 at [34] (Gordon J, Kiefel CJ, Gageler and Gleeson JJ agreeing); and

(f) In the context of judicial review, there is some conceptual uncertainty as to whether the reasonable grounds analysis is best undertaken in determining: (a) whether there was practical injustice and, as such, a denial of procedural fairness; or (b) whether any error on procedural fairness grounds was material and, therefore, jurisdictional: Puohotaua at [43]. In Puohotaua (at [46]) and Bainbridge (at [68] and [109]) it was held that the failure to inform the applicant of the privilege will have amounted to a denial of procedural fairness and a jurisdictional error if it was material to the decision made by the Tribunal.

1. The events giving rise to this ground occurred on the first day of the remitted hearing before the Tribunal in October 2024. The Applicant was not legally represented at the remitted hearing. Before the Applicant commenced giving evidence, the lawyer for the Minister raised with the Tribunal the need to administer a warning with respect to the privilege. The Tribunal then administered the following warning to the Applicant (with the assistance of an interpreter):

[SENIOR MEMBER:] ... if you give evidence in this proceeding, it can possibly be given - the evidence can be provided to law enforcement authorities like the police. You have the right to refuse to answer any question where a truthful answer could incriminate you of an offence that you haven't been found guilty of. All right. And you might remember, in the last hearing, the Senior Member told you about your right not to incriminate yourself, and there was a question that you actually refused to answer invoking that right. Okay. There is some evidence in the police records that you have done some things which are criminal offences but you weren't prosecuted for them. If you re asked about those, you can refuse to answer, and that will not be held against you in any way. It doesn't mean that I can't form a view that you did those things. I might think that the police evidence is credible and accept that it's true. It's just that you can't be forced to confess to anything. If there is something, an allegation that's made and you weren't found guilty of it, you can answer questions about it. It's a right that you have, and you can choose to exercise it or you can choose not to. Some people, they will admit that they did the thing and then they will give an explanation about why. Okay. So it's up to you what you do. All right?---Yes.

(Emphasis added)

1. Later that day, during cross-examination, the lawyer said to the Applicant (with the assistance of a translator):

... I'm going to read to you a summary that the police have provided to the tribunal in relation to an alleged sexual assault incident that occurred in 2020. I'm going to read you a summary, and then at the end, I'll ask you whether you have any comment to make about what I read to you, whether you agree with it or not. ...

(Emphasis added)

1. The lawyer proceeded (with the assistance of an interpreter) to read out parts of a statement from the Applicant's former partner in support of a police protection notice (regarding a domestic violence order) (police protection statement). Consistent with how it was described by the lawyer, the facts alleged in the police protection statement amounted to an alleged sexual assault. But the words "sexual assault" were not actually used in the police protection statement, nor were the words "criminal offence". Indeed, the police protection statement recorded that the aggrieved "did not want to make any criminal complaints" in respect of the facts alleged. That lawyer read that as aspect of the police protection statement to the Applicant.
2. In all, reading the police protection statement occupied a little over half a page of transcript. The matters included in it were not confined to the alleged sexual assault itself, but extended to the context in which that alleged assault occurred, including a voicemail that the Applicant received from his former partner which he interpreted as his partner cheating on him. Once the lawyer had finished reading out the police protection statement, there occurred the following exchange:

[LAWYER]: ... Do you have any comment to make about the incident that I just read out?---Yes. That was worry, jealousy, something, so.

SENIOR MEMBER: Just to be clear, is everything that was read out true?---Yes.

1. The AAT Decision records relevant parts of the police protection statement and the Applicant's evidence that he "agreed with those facts": AAT Decision at [26]. The Tribunal made findings adverse to the Applicant having regard to that evidence": AAT Decision at [26], [64], [68] and [83].

1. The Applicant has filed an affidavit in which he gives evidence that while he can speak some English, it can be difficult to understand. He deposes that at the earlier hearing he understood that he could decline to answer questions and at the remitted hearing he believed he could decline to answer questions if they did not make sense, but did not understand that he could refuse to answer questions that he had declined to answer at the earlier hearing. The Applicant gives evidence that he did not know or understand that he could decline to provide answers which might incriminate him. He deposes that if he had known that he could refuse to answer questions on that basis, then he would have done so at the remitted hearing, including the questions arising out of the police protection statement referred to above.
2. It is necessary to say something about the purpose for which the Applicant relies on this affidavit. The Applicant has not advanced a case that he was denied procedural fairness because of the standard of interpretation at the remitted hearing: cf, SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212. Rather, he relies on the affidavit for the purpose of establishing materiality. The Minister did not object to the affidavit being admitted or seek to cross-examine the Applicant. It might be inferred that this is because, as appears from what follows, the Minister does not put materiality in issue with respect to this ground. As such, and consistent with the position taken by the parties, I proceed on the basis that the affidavit is relevant only to the question of materiality, not whether there was a denial of procedural fairness.

1. The Applicant argues that in the circumstances of the case, procedural fairness required the following:

(a) the Applicant be informed of his right to invoke the privilege in simple terms and how it could be exercised;

(b) the Tribunal ensure that the Applicant was aware of that right and understood its explanation; and

(c) the Tribunal advise the Applicant at the relevant time when he could exercise that right, including materially, at the time of the cross-examination by the lawyer about the police protection statement.

1. That argument is founded on the following circumstances: the Applicant was unrepresented, not legally trained and had limited English skills. The Applicant contends that the Tribunal did not comply with the latter two requirements because the Senior Member failed to ensure the Applicant understood the privilege or, alternatively, failed to remind the Applicant of the privilege prior to his answering the questions arising out of the police protection statement. He places particular emphasis with respect to the latter contention, on the fact that three hours elapsed between the warning given at the outset of the remitted hearing and the questions about the police protection statement.
2. Insofar as it concerns a contextual warning, the Applicant also relies on the decision in QYFM v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCAFC 195; (2023) 301 FCR 422. The issue before the Full Court (Katzmann, O'Callaghan and McEvoy JJ) was whether the appellant should be given leave to rely on new grounds of appeal (at [5]). One of the proposed grounds concerned an alleged denial of procedural fairness by failing to advise the appellant of his right to invoke the privilege before questioning him on an aspect of his evidence: at [68]. The Tribunal had reminded the appellant about the privilege at the outset of the hearing (at [25]) and gave him specific warnings in the context of questions about drug importation offending (at [26]). The alleged denial of procedural fairness concerned a failure to give the warning with respect to evidence the appellant gave that was found to be false and misleading (at [43]). The Full Court refused the appellant leave to rely on the new ground because it had no merit (at [67], [71] and [73]). The Applicant nonetheless submits that QYFM (No 2) leaves "room" for the argument that in the circumstances of the remitted hearing, procedural fairness required that the Applicant be given a specific warning by the Tribunal in the context of the questions about the police protection statement.
3. The Minister does not put in issue that the privilege arose with respect to the questions about the police protection statement. Nor does the Minister raise an issue with respect to practical injustice (for example, a risk of prosecution) in establishing a denial of procedural fairness or, if I am satisfied that there was such a denial, materiality. Rather, the Minister argues that the Tribunal did not fail to afford the Applicant procedural fairness in the circumstances of the remitted hearing because the Applicant was sufficiently warned of his right to invoke the privilege. The Minister characterises the exchange extracted at [43] above (in emphasis) as including a positive indication from the Applicant that he understood the warning, such that the Tribunal would not have been alerted to any apparent misunderstanding about the privilege.
4. The Minister emphasises that there is no evidence that the interpretation of the warning was flawed or that the Applicant was denied a fair hearing by reason of his language difficulties. Reference is made, in this regard, to the following exchange at the outset of the remitted hearing:

SENIOR MEMBER: So would you like the interpreter to interpret everything I say to you?

MR WARDHANA: If I don't understand, I will ask him ...

1. The Minister also relies on the warning given at the earlier hearing before the Tribunal in January 2024. The decision, the subject of the earlier hearing, was quashed by the orders referred to at [4] above. At the earlier hearing, the Tribunal administered the following warning to the Applicant:

SENIOR MEMBER: All right. Thank you. I'll do that. [Applicant], [the Minister's lawyer] is going to put some facts to you now which may indicate that you committed some kind of sexual assault, possibly, against a victim, this victim. You do not have to answer any of his questions if you think those questions, by you answering them, could get you into further trouble or could lead to more trouble for you. Do you understand?---Yes.

So they're only allegations, and you do not have to answer them?---Yes.

You have the right not to answer them - - -?---Yes.

- - - if you think they could put you in further trouble in relation to a sexual assault charge - - -?---Yes.

- - - or something like that. You follow me, or do you want that translated?---Yes. Yes, I follow you.

You follow. All right. So listen carefully, and you can refuse to answer a question if you think it's going to incriminate you. I'll keep an eye out as well?---Thank you.

1. During the earlier hearing, the lawyer put to the Applicant parts of the police protection statement alleging that he had committed a sexual assault. Before he answered, there occurred the following exchange:

SENIOR MEMBER: Just be careful before you answer that. You need to be careful and just think about the warning I just described to you before. So to be clear, you can decline to answer that question if you wish?---Decline it.

1. The Minister argues that the earlier hearing is material to this ground and is a circumstance which supports the conclusion the Applicant was afforded procedural fairness because it is another occasion on which he was told of the privilege. The Applicant submits that not much can be made of the earlier warnings, given that the hearing in which they were given was 10 months earlier.

1. I am not persuaded that the warning given by the Tribunal at the outset of the remitted hearing was deficient. The circumstances confronting the Applicant at that hearing are uncontroversial and were known to the Tribunal. The Tribunal took steps to address those circumstances including, relevantly, by advising the Applicant at the outset of the remitted hearing of his right to claim the privilege.
2. That warning identified and reiterated the central elements of the privilege: the right to refuse to answer a question that might incriminate the Applicant. The Tribunal specifically referred to the warning given at the earlier hearing and the choice made by the Applicant at that hearing to invoke the privilege. The Tribunal also referred to the types of questions in respect of which the Applicant may claim privilege, specifically mentioning evidence contained in police records. The warning was given by the Tribunal with the assistance of a translator to accommodate language difficulties confronting the Applicant because English was his second language.
3. It may be accepted that the Tribunal did not, in terms, ask the Applicant, "Do you understand the privilege?" But as appears from the exchange extracted at [43], the Tribunal sought positive confirmation to that effect by saying to the Applicant, "All right?" and the Applicant responded with the answer, "Yes". I am satisfied, given the positive affirmation the Tribunal sought and received from the Applicant, that this aspect of the remitted hearing was not procedurally unfair.
4. I am persuaded, however, that procedural fairness required the Tribunal to reiterate the warning before the Applicant was asked to "comment on" the extract from the police protection statement. While the lawyer characterised the police protection statement as alleging a sexual assault, he did not explain that this constituted a criminal offence. And though the matters it recorded constituted an alleged criminal offence involving police, it was taken in the context of a domestic violence, rather than a criminal, process. But perhaps most importantly, its contents were apt to confuse a person who was not legally trained because it contained a positive statement from the complainant that she did not want to make a "criminal complaint".
5. In those circumstances, procedural fairness required that the Tribunal give the Applicant a warning in context by advising him of his right to object to comment on the police protection statement on the grounds of self-incrimination.
6. I do not accept, in that respect, the contention by the Minister that the warning given at the earlier hearing materially bears upon whether the Applicant was given procedural fairness at the remitted hearing. Ten months had elapsed between the earlier hearing and the remitted hearing. Even accepting that the Tribunal noted at the remitted hearing the fact of the earlier warning and that the Applicant had invoked the privilege, it cannot sensibly be contended that at the remitted hearing the Tribunal could reasonably expect the minutiae of that warning, such that a further warning was not required.

1. As noted above, the Minister does not put materiality in issue with respect to this ground. I am satisfied that the denial of procedural fairness constituted jurisdictional error because, as outlined above, it was material to the AAT Decision that was made by the Tribunal: cf, Bainbridge at [68] and [109] and Puohotaua at [46].

1. For all the above reasons, both grounds of the application for judicial review of the AAT Decision ought to be allowed. I am also satisfied, given the findings that I have made with respect to ground 2, that it is appropriate to make orders restraining the Tribunal from using or considering the AAT Decision or the transcript of the remitted hearing on remittal. Finally, consistent with the submissions made by the parties at the hearing, there is no reason why costs ought not follow the event.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Longbottom.