WQKK v Minister for Immigration and Multicultural Affairs

1. The amended originating application be dismissed.
2. The applicant pay the first respondent's costs of the proceedings.
3. The name of the first respondent be amended to read the "Minister for Immigration and Multicultural Affairs". Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKMAN J 1 By an amended originating application dated 23 July 2024, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 11 April 2024 (the Tribunal's Decision). The Tribunal's Decision affirmed the decision of the Minister's delegate on 29 August 2022 not to revoke the cancellation of the applicant's Class XA Subclass 866 protection visa (the Visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) (the Non-Revocation Decision). 2 The applicant was first granted a visa on 25 January 2012. That visa was mandatorily cancelled on 1 March 2019 under s 501(3A) of the Act. This was largely for driving offences and using fraudulent means to obtain fentanyl. That mandatory cancellation decision was ultimately revoked by the Tribunal under s 501CA(4) of the Act on 26 February 2020 after the applicant told the Tribunal that he had intended to send the fentanyl to his ill daughter and father in Iran for pain relief but that they did not require the same level of relief and he promised he would not reoffend. 3 Within a few months, the applicant again repeatedly used fraudulent means to obtain fentanyl. On 1 February 2021, the applicant was convicted of a further 69 offences, including 19 counts of fraud-dishonestly gained benefit/advantage, 23 counts of forgery, and 23 counts of utter forged document. He was sentenced to 18 months imprisonment with his time on remand declared as time served and immediately released on parole. While the applicant submits to this Court that he had obtained the medication to help his daughter and his father in Iran, the Tribunal below rejected this explanation: see the Tribunal's Decision at [137] and [155]. 4 The applicant's visa was again cancelled on 16 April 2021 on the basis that the applicant had a substantial criminal record and therefore did not pass the character test by operation of s 501(6)(a) of the Act. The applicant made representations on 4 May 2021 leading to the non-revocation decision dated 29 August 2022. 5 The applicant applied to the AAT for review of the non-revocation decision on 29 August 2022 (the Second Tribunal Proceedings). A decision of the Tribunal dated 21 November 2022 affirmed the Non-Revocation Decision. However, that decision was set aside by orders made by the Federal Court on 26 May 2023, and the matter was remitted to the Tribunal: WQKK v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 535. 6 It was on remitter pursuant to the Federal Court's orders that the Tribunal's Decision was made on 11 April 2024 following a hearing via video conference which spanned five days in August, September and December 2023. The applicant was represented before the Tribunal by Ms Alison Battisson of Human Rights For All. 7 In reviewing the non-revocation decision, the Tribunal was concerned with whether the requirements of s 501CA(4)(b) were met such that the discretion to revoke the decision to cancel the applicant's visa was enlivened. It was not in dispute between the parties that the applicant did not meet the character test as defined in s 501(6) of the Act. Section 501CA(4)(b)(i) was therefore not satisfied. The issue to be determined was therefore whether there was "another reason why the original decision should be revoked" such that s 501CA(4)(b)(ii) was engaged. 8 This required the Tribunal to consider the matters set out in "Direction 99 - visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA" (the Direction) issued by the Minister under s 499 of the Act and required to be complied with by the delegate: s 499(2A). The Direction sets out a number of primary considerations which must be taken into account by the decision-maker. 9 Relevantly for this proceeding, primary consideration 1 is the "protection of the Australian community from criminal or other serious conduct". As part of this primary consideration, paragraph 8.1.2(2) of the Direction requires the decision-maker to consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct and the likelihood of the non-citizen engaging in further criminal or other serious conduct. 10 After setting out a brief procedural history, legislative provisions and the provisions of the Direction, and the evidence before the Tribunal, the Tribunal turned to the primary and other considerations under the Direction. 11 Primary consideration 1 was dealt with by the Tribunal at [138] to [177], and in particular the applicant's risk of reoffending or engaging other serious conduct was addressed at [152] to [176]. In light of the ground of review advanced in the present proceedings, it is only necessary to summarise the Tribunal's assessment of the report by Dr Mamta Sidhu dated 7 August 2023 at [165]-[173], which also explain the procedural history to the applicant's reliance on that report. The applicant had previously relied upon a report of Dr Sidhu in the Second Tribunal Proceedings (September 2022 Report). 12 In the September 2022 Report, Dr Sidhu had recorded that the applicant's instructions were that: (1) he had first used drugs in 2017 to cope with his emotional distress concerning one of his daughters' (Ms A) diagnosis with brain cancer; (2) prior to 2017, the applicant had no offending history; (3) he sent fentanyl to Ms A, as she was unable to access treatment in Iran and he needed more money to support his daughter; (4) because of his experience with authorities in Iran, he understood that he needed to procure help himself and saw his offending as his way of ensuring his family's survival; and (5) his peer supports were pro-social in nature and that he had a handful of friends in the community: see [165]-[166]. 13 Based on the information provided by the applicant, and applying the Level of Service Inventory - Case Management Inventory risk assessment tool, the September 2022 Report concluded that the applicant posed a "low-level risk of reoffending": [167]. 14 At [168], the Tribunal explained how Dr Sidhu's risk assessment was "problematic because it was based on information that is not supported by the evidence, most of which he did not have access to". This included that the applicant did not have a clean record before Ms A's cancer in 2017, did not commit the pharmaceutical fraud to help Ms A or his father, Ms A was able to access treatment in Iran, and the applicant had made use of various kinds of government assistance while in Australia: [167]. 15 Dr Sidhu was called to give evidence in the Second Tribunal Proceedings. At [169]-[171], the Tribunal recorded parts of Dr Sidhu's evidence in cross-examination in the Second Tribunal Proceedings. The Tribunal observed that Dr Sidhu had given a "vague, unhelpful answer" about taking into account the applicant's reoffending and that Dr Sidhu ultimately accepted that she could not be certain that what she was told in the September 2022 interview about the applicant's history of committing dishonesty offences was accurate. 16 Dr Sidhu prepared a further report dated 7 August 2023 for the latest Tribunal proceedings. At [172], the Tribunal recorded that Dr Sidhu "apparently based the [report of 7 August 2023] on the same information as her previous report and did not mention the information the respondent had given her in the second hearing". 17 Paragraph 173, which is impugned by the applicant, then recorded submissions made by the applicant and Minister in oral closing addresses on 26 September 2023 concerning the weight to be afforded to Dr Sidhu's report of 7 August 2023. The transcript of these submissions is attached to the affidavit of Ms Battisson dated 19 July 2024. The Minister submitted that: "the psychologist wasn't made available … and limited weight ought to attach to that evidence" (T166.35-37). In reply, Ms Battisson submitted: The psychologist could have been called by the respondent [ie, the Minister]. The credentials have not been questioned, nor has the actual finding of him [sic: her] as an expert. (T176.16-17) 18 Ms Battisson did not put any submission based on any lack of request or requirement by the Minister that Dr Sidhu be made available for cross-examination. 19 The Tribunal concluded at [173] that: It was the obligation of the party that wanted her report to be accepted to make her available for questioning in circumstances where her evidence was obviously problematic. Often, an expert's opinion is highly influential. However, for the reasons I have stated, I give this expert risk assessment little weight. 20 The central focus of the applicant's allegation of a breach of procedural fairness is alleged non-compliance by the Tribunal with para 4.50 of the Tribunal's General Practice Direction (GPD) issued under s 18B of the Administrative Appeals Tribunal Act 1975 (Cth). Paragraphs 4.49 and 4.50 of the GPD provide as follows: 4.59 If you or the decision-maker want to rely on a medical or other expert report that has been lodged with us and given to the other party, we will usually take it into account, whether or not the expert gives oral evidence. You and the decision-maker must consider carefully whether it is necessary for experts to give oral evidence. 4.50 If you or the decision-maker were not intending to ask an expert to give evidence at the hearing but the other party requires the expert for cross-examination, you and the decision-maker must talk to each other about who will arrange the expert's attendance. If the expert does not give evidence in these circumstances, the report may be taken into account but the failure to give oral evidence may be relevant in assessing the weight to be given to the report. 21 The essence of the applicant's argument is that: (a) The Tribunal erred in finding at [173] that it was the applicant's obligation to make Dr Sidhu available for cross-examination in light of para 4.50 of the GPD. The applicant was entitled to expect that the Tribunal would follow the GPD. In circumstances where para 4.50 of the GPD provided a particular procedure to be followed if expert witnesses are required for cross-examination, and that procedure was not followed, it was not open for the Tribunal to make the finding at [173]. (b) At no point during the proceedings did the Minister or the Tribunal put the applicant on notice that it required Dr Sidhu for cross-examination in accordance with para 4.50 of the GPD. Nor did the Minister inquire into Dr Sidhu's availability. Therefore, the applicant did not take any steps to ask Dr Sidhu to give evidence. Had the applicant been alerted to the Minister's desire to cross-examine Dr Sidhu prior to the commencement of the hearing, steps could have been taken by the applicant to make Dr Sidhu available to give evidence. (c) The denial of procedural fairness was material, as the applicant was denied an opportunity to present evidence on a critical issue. 22 As the Full Federal Court held recently in Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114 at [36]-[40]: (a) Section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) gives the Tribunal considerable latitude over the procedures it adopts, and s 39(1) requires that every party is given a reasonable opportunity to present his or her case. (b) That obligation is to provide a reasonable opportunity, not necessarily an optimal one, quoting Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 159; (2023) 300 FCR 106 at [31]. (c) What constitutes a reasonable opportunity in a particular case will always depend on the facts of the particular case. 23 That last point was also made clear by the unanimous High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26]. Further, as their Honours reiterated at [48]: "Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given." 24 In the present case, it is not necessary to decide whether paras 4.49 and 4.50 of the GPD require the party against whom expert evidence is sought to be relied upon to take the initiative in requiring the expert to give evidence orally. That is the position in ordinary litigation in court but may or may not be the position in the Tribunal's GPD. The Tribunal's reasoning at [173] went only so far as to say that it was the obligation of the party that wanted Dr Sidhu's report to be accepted to make her available for questioning in circumstances where her evidence was obviously problematic. 25 On the particular facts of this case, the important circumstance is that when the Minister submitted that the Tribunal should give limited weight to Dr Sidhu's report of 7 August 2023 because she was not made available for cross-examination or questioning by the Tribunal, the applicant's legal representative replied simply that Dr Sidhu could have been called by the Minister. No submission was made based on any lack of request or requirement by the Minister that Dr Sidhu be made available for cross-examination. Nor was any application made to reopen the evidence in order for Dr Sidhu to give oral evidence, including by telephone. 26 That explains why the reasoning in [173] of the Tribunal's reasons was expressed in the way it was, reflecting the terms of paras 4.49 and 4.50 of the GPD in circumstances where the Tribunal was not informed of any lack of request or requirement by the Minister that Dr Sidhu be available for cross-examination. I note that the relevant submissions were made on 26 September 2023 (being the fourth day of the hearing), and the last day of the hearing was not for a further three months, on 21 December 2023. The applicant's legal representatives thus had ample opportunity to reflect further on the Minister's submissions concerning the limited weight to be given to Dr Sidhu's report of 7 August 2023. Further, the applicant did in fact make some witnesses available for cross-examination or questioning by the Tribunal (see T5.31-37), despite the lack of any request by the Minister that it do so. 27 Although each case depends on its own facts, there is a close analogy between the present circumstances and those considered in HBMH v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 275 at [110]-[123], in which Katzmann J rejected the submission that the Tribunal had denied the applicant procedural fairness by giving no weight to four witness statements because the makers of those statements were not made available for cross-examination, in circumstances where neither the Minister nor the Tribunal had asked that they be made available for cross-examination. As here, the Minister submitted in closing address that the witness statements should be given no weight because the makers were not available for cross-examination. Her Honour rejected the submission that the applicant had been caught by surprise by the Minister's submission, and noted that the applicant's legal representatives did not seek leave to reopen so as to make the witnesses available for cross-examination, if necessary by telephone. 28 As there has been no denial of procedural fairness in the present case, it is not necessary to decide whether the alleged denial of procedural fairness (if it had been accepted) would have been material. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.