Consideration
55 In any application for judicial review the applicant bears the onus of proving jurisdictional error: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67] (Gummow J); [91] (Heydon J); [92] (Crennan J).
56 Having regard to their interrelationship it is convenient to deal with grounds 1 and 4 together.
57 The question expressly raised by ground 1 is whether the Tribunal denied the applicant procedural fairness by not considering the non-excluded documents.
58 The non-excluded documents the subject of ground 1 consisted of the applicant's responses to two letters from the Minister's Department dated 20 April 2021 and 17 May 2021. In the first letter the applicant was invited to comment on additional information received by the Department and on Direction 90, which replaced the previous Direction 79 on 15 April 2021. The additional information consisted of sentencing remarks from the Local Court on 8 November 2018 and 12 November 2020 and an incoming passenger card dated 22 February 2016 on which the applicant did not declare his criminal convictions. The applicant was informed that his failure to declare his previous convictions might be found to show a disregard of Australian laws such that the decision maker might find that there was a risk he would reoffend. The second letter invited the applicant to comment on further information received by the Department, consisting of the notification of refusal of the application for a protection visa and the record of the delegate's decision to refuse the application.
59 The applicant supplied documents to the Department on three occasions.
60 On 29 May 2021 the applicant made representations in response to the second letter. The invitation to comment on Direction 90 was not accepted. The applicant's representations attached the letter from the Tribunal inviting him to appear at a hearing about his protection visa application; the Tribunal's acknowledgment of the application; and a letter from his sister supporting his application for a protection visa. The representations and attachments, together with a covering email, were received into evidence in the Tribunal and marked Exhibit A1.
61 On 1 June 2021 the applicant made representations in response to the first letter. Annexed to those representations were: a Wikipedia article concerning violent protests in India in February 2016; a letter from NSW Roads & Maritime Services relating to his driver's licence; a statutory declaration from the solicitor who had acted for the applicant when he was sentenced in November 2020 explaining the circumstances in which he pleaded guilty, challenging some of the conclusions reached by the sentencing judge and attesting to the applicant's good character; a letter from the applicant solicitor dated 20 September 2020 addressed to the presiding judge at the Local Court, Mount Druitt; a letter from the Commonwealth Bank dated 28 April 2021 declining the applicant's request for hardship assistance in connection with a home loan. The representations and attachments, together with a covering email, were admitted into evidence and marked Exhibit A2. The letter from the Commonwealth Bank was marked Exhibit A4.
62 On 2 July 2021 the applicant's sister forwarded an email to the Department. In the email she expressed her concern for her brother's welfare and urged the Minister to give her brother "some sort of visa and revocation" so that he can emerge from detention, access the right medical treatment and stay with his family. She pleaded that he was vulnerable, his mental state was worsening, and he was in need of the love and support of his family and proper medical care. She said that she had recently given birth to a child and was "very limited to support him" while her brother remained in detention. She said that, if her brother were released, he would stay with her and she could support him "24/7". Her email attached screenshots of an email from the applicant to his solicitor in the family law proceeding, in which the applicant said that he did not want to live anymore, and the responses from the solicitor attempting to reassure him and disparaging his estranged wife.
63 The Tribunal observed that "the material did not raise substantially new information not previously been considered by the original decision maker, with the majority of attachments comprising material already submitted" (at [6]).
64 A failure by an administrative decision maker to consider relevant material can, in some circumstances, give rise to jurisdictional error. Whether or not it does depends on the importance of the evidence to the Tribunal's function and therefore the seriousness of the error. See, for example, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111] (Robertson J); Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ).
65 Further, a denial of procedural fairness can also amount, or give rise, to jurisdictional error: see, for example, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. A failure by a decision maker to respond to "a substantial, clearly articulated argument relying upon established facts" is at least a failure to accord natural justice: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; 197 ALR 389 at [24] (Gummow and Callinan JJ), [95] (Hayne J). It might also be characterised as a constructive failure to exercise jurisdiction: Dranichnikov at [25], [32], [95]. While the Tribunal was bound to read, identify, understand and evaluate the representations, the weight to be afforded to them was a matter for the Tribunal. It was not obliged to make "actual findings of fact as an adjudication of all material claims" made by the applicant. See Plaintiff M1 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ).
66 The Minister submitted that, to the extent that the non-excluded documents contained evidence or argument the Tribunal considered were relevant to findings on matters it regarded as material, it referred to their contents. The Minister pointed, by way of example, to the references in the Tribunal's decision to the fact that the applicant's sister had recently given birth to a child (at [88]) and to the statement in the applicant's protection visa application that he was "inclined towards Christian religion" during his first marriage and that there was friction with his family over a broken promise to marry ([112]). Otherwise, the Minister submitted that the material canvassed well-trodden ground, such as the applicant's non-refoulement claims (which were rejected in 2016) (CB 757-759), the circumstances surrounding his offending (CB 770-771, 781-785), his relationship with his former spouse and his daughter and his substance abuse and mental health issues, (CB 763-767, 786-791), and his character (CB 792-793). He argued that the documents did not raise any new "substantial, clearly articulated claims relying on established facts" with which the Tribunal was required to engage. While the submission dated 1 June 2021 contained a response to an invitation from the Department on 20 April 2021 to comment on his failure to declare his criminal convictions on an incoming passenger card dated 22 February 2016 (CB 768-769), that was not a matter on which the Tribunal placed any weight in affirming the delegate's decision.
67 The Minister also submitted that, insofar as the Tribunal did not refer to particular aspects of the non-excluded documents, the Court should not infer that the documents were overlooked. Rather, the proper inference is that it did not consider them to be relevant to the questions it regarded as material.
68 The applicant did not engage with these submissions. Indeed, he had no answer to them. His complaint was based on the fact that the documents came to the Tribunal's attention on the first day of the hearing by which time, he contended, the Tribunal member had already made up his mind to dismiss his application. That contention cannot be accepted. It amounts to an allegation of bias through prejudgment. The applicant bore a heavy onus in this regard: Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106 (French J). An allegation of this nature must be "distinctly made and clearly proved": Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] (Gleeson CJ and Gummow J); at [127]-[128] (Kirby J); at [176] (Hayne J). The applicant's allegation was neither distinctly made nor clearly proved.
69 The Minister's submissions should be accepted. Section 43(2B) of the AAT Act only required the Tribunal to set out findings of fact which in its opinion are material: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] (Hill and Allsop JJ). It follows that, if the Tribunal does not mention something in its reasons it does not necessarily follow that it failed to consider it. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69] McHugh, Gummow and Hayne JJ said of s 430 of the Act, which is in substantially similar terms as s 43(2B) of the AAT Act, that "[t]he provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material".
70 In any event, the applicant did not establish that any failure by the Tribunal to consider the non-excluded documents could realistically have led to a different outcome. In the circumstances, this ground must fail: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4], [45], [49] (Bell, Gageler and Keane JJ).
71 The second ground of review is unsustainable. There is nothing to it and the submissions did not speak to it.
72 Ground 3 cannot succeed in the face of s 500(6J).
73 The documents the Tribunal declined to receive consisted of a "Further Amended Initiating Application (Family Law)" filed in the Family Court of Australia on 25 October 2021 in which the applicant applied for parenting and financial orders and an affidavit in support sworn by the applicant on 17 August 2021. The reason the Tribunal gave was that the documents had not been provided within the statutory period.
74 The Tribunal had no choice in the matter.
75 Section 500(6J) relevantly provides that:
If:
(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any document submitted in support of the person's case unless a copy of the document was 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 …
76 Since the documents were not given to the Minister at least two business days before the hearing, the Tribunal was not authorised or entitled to have regard to them. Indeed, it was required to disregard them.
77 In his affidavit in this proceeding the applicant deposed that he had asked the Tribunal for "an extension of time for the hearing" so that he could send the additional evidence but his request was "not accepted". What he was saying, in effect, was that he had asked for an adjournment but his request was declined.
78 In his written submissions the Minister dismissed what the applicant said in his affidavit as "a claim, unsupported by evidence". That submission cannot be accepted. What the applicant said in this respect was evidence. Moreover, it was neither challenged nor contradicted. That said, the applicant did not allege that the Tribunal's refusal to adjourn the hearing was unreasonable or otherwise affected by jurisdictional error, let alone propound any argument in support of such an allegation.
79 Without more, the fact that an application for an adjournment was made and refused is insufficient to establish a jurisdictional error.
80 In any event, I accept the Minister's submission that, even if the excluded documents had been received, there was no realistic possibility of a different outcome. That circumstance alone is fatal. As the Minister submitted, the Tribunal was aware from other sources of the matters the subject of those documents and took them into account. Its reasons show that it was aware that there were pending family law proceedings between the applicant and his second wife in which orders were sought in respect of their daughter (at [67], [90], [98]). The Tribunal accepted that the daughter would benefit from knowing her father and having contact with him (at [97]). The Tribunal considered that it was reasonable to assume that ongoing access was a likely outcome although its nature and extent were unknown (at [98]). The Tribunal was also aware that the applicant denied some of the allegations of family violence made against him (at [44]). Once again, the applicant carried the onus of proving that the outcome could have been different if the Tribunal had accepted receipt of the excluded documents. But he did not point to anything in those documents that could have taken the matter any further. In those circumstances he has not discharged his onus of proof.