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Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 (21 April 2022)

Intro:-

The plaintiff seeks writs of certiorari and mandamus in relation to a decision of a delegate ("the delegate") of the defendant ("the Minister") to refuse to grant her a protection visa under the Migration Act 1958 (Cth), based on adverse credibility findings relying in part on her failure to provide further information supporting her claims. The plaintiff's application should be upheld on the ground that the delegate unreasonably exercised the discretion under s 62 of the Migration Act to refuse to grant her a visa without taking any further action to obtain additional information.

Facts:-

The plaintiff, a citizen of Turkey, entered Australia on a Student (Subclass 572) visa on 8 January 2015. On 24 March 2016, she lodged an application for a Protection (Subclass 866) visa. On 14 July 2016, she was notified that her application was invalid because she had failed to provide personal identifiers as required by s 46(2A) of the Migration Act. She had been asked to attend the Department of Immigration and Border Protection[1] ("the Department") to provide fingerprints, but she had misunderstood the request and had gone to a police station instead.

On 3 August 2016, the plaintiff made a valid application for a Protection (Subclass 866) visa, which was in substantially the same form as the invalid application. The application was prepared with the assistance of a translator, and the plaintiff indicated that she would need a translator if called to attend an interview.

In her protection visa application, the plaintiff claimed to be a lesbian and claimed that if she was returned to Turkey she would be killed or forced to marry a man, which she said would be worse than death.

Between August 2016 and April 2017, the plaintiff engaged in sporadic correspondence in broken but intelligible English with the Department about her application. The plaintiff did not hear anything about her application between April 2017 and August 2019. She states in an affidavit filed in support of her application in this Court that during this period her father died, her mental health declined, she became homeless, and she attempted to take her own life and was hospitalised.

On 19 August 2019, in response to a request for a criminal history check from a Senior Status Resolution Officer ("the Status Resolution Officer") at the Department, a Senior Border Force Officer sent an email to the Department stating that there was no record of charges or convictions but there was information indicating that the plaintiff had serious mental health issues. Subsequent emails show that, around this time, the plaintiff had been admitted to hospital under the Mental Health Act 2007 (NSW).

On 6 January 2020, an officer of the Department sent a letter to the plaintiff inviting her to attend an interview in Melbourne on 31 January 2020. Departmental emails from August 2019 show that the plaintiff was in New South Wales (in addition to being homeless and having no money). The plaintiff states in her affidavit that she does not recall receiving or reading the letter at the time.

On 14 February 2020, the plaintiff received two further letters by email from the delegate requesting further information. The first letter requested further information from the plaintiff pursuant to s 56 of the Migration Act ("the s 56 letter"). It stated that:

(1) the plaintiff's failure to attend the 31 January 2020 interview and her delay in lodging her application for a protection visa were relevant to an assessment of whether her claims for protection were genuine;

(2) the plaintiff's claims lacked "substantiating details such as dates and locations" and the delegate needed further information to be satisfied that her claims were genuine; and

(3) information indicating that the plaintiff had obtained a new Turkish passport and intended to return to Turkey "directly contradict[ed]" the plaintiff's claims that she could not return to Turkey because she feared she would lose her life.

The letter asked whether the plaintiff had any comments or further information to provide in relation to those matters. The inclusion of the third point in the letter is not insignificant. It means that the delegate must have reviewed the file and read the relevant correspondence and must therefore have been aware that the plaintiff was living in New South Wales, was homeless and had recently been admitted to hospital under the Mental Health Act.

The second letter invited the plaintiff under s 57 of the Migration Act to comment on the information indicating that she had obtained a new Turkish passport and intended to return to Turkey ("the s 57 letter"). The letter stated that the plaintiff's apparent willingness to return to Turkey could suggest that she did not genuinely fear that she would lose her life upon return.

On 17 February 2020, the plaintiff responded by email as follows:

"i am [name redacted] is waiting for my case, i havent go back turkey with getting passport, i am in sydeny without money and home, i have been reaaly bad situation to come back melbourne for case, no body listen to me even government, call me bla bla or whatever or ye ye ye, i am really suffering mentally and phscichly, i dont even have phone or money, i will have court in sydey for steal chochlate cause suffering financily, dowling court.. if i go back mine where am i now? people call me this and that... please help me"

In response, on the same day, the plaintiff received an email from the delegate stating that the Department was "prepared to re‑schedule [the 31 January 2020] interview to be held in Sydney in the week commencing 9 March 2020". The plaintiff was "encourage[d] ... to contact [her] previous case manager in Status Resolution should [she] require assistance". The Status Resolution Officer sent the plaintiff a separate email on 17 February 2020 stating that the plaintiff's application was continuing and the Department needed to interview her for the application to progress.

On 20 February 2020, the plaintiff responded to the delegate's email, stating:

"to protection visa assessment

i am on the street without money how can i make it to come melbourne, i really in bad situation, i came here for good life live my identity but here what i am living is like iam relegionous person from turkey, my life is worse then being death.." (emphasis added)

On 3 March 2020, the Status Resolution Officer wrote to the plaintiff stating:

"If you are continuing to experience difficulty, we may be able to provide some support for you.

Please contact me by email or phone so that we can discuss your current situation."

There was no response to this email.

Two weeks later, on 17 March 2020, the delegate refused to grant the plaintiff a protection visa. The plaintiff was notified of that decision by letter dated 18 March 2020.

Delegate's reasons

Under the heading "Findings of Fact", the delegate set out her reasons for finding that the plaintiff's claims were not credible. The delegate said that she had raised concerns about the plaintiff's failure to attend her scheduled interview in Melbourne and the plaintiff "did not engage with" the offer to schedule another interview in Sydney. The delegate said that she was not satisfied that the plaintiff's response to her concern about the plaintiff's failure to attend her scheduled interview in Melbourne constituted "a reasonable explanation for her failure to attend". The delegate said that the plaintiff's failure to "engage" with the offer to reschedule the interview was a "further reason for concern about the credibility of [the plaintiff's] protection visa claims".

The delegate recorded that:

(1) the plaintiff's failure to respond to the delegate's concerns about the plaintiff's delay in applying for a protection visa "raise[d] further concerns that the [plaintiff's] claims [might] not be credible";

(2) "[t]he [plaintiff's] failure to respond to [the delegate's] concerns regarding the lack of detail in her protection claims ... suggest[ed] that the [plaintiff's] situation [was] not as described in her protection visa application";

(3) "[a]s flagged with the [plaintiff] ..., the [plaintiff's] statement of claims lack[ed] substantiating details", "no further details or supporting documents were provided" and "[t]his raise[d] concerns that her claims [were] not credible"; and

(4) the plaintiff "did not respond to [the delegate's] concern ... about the fact that [the plaintiff] had obtained a new Turkish passport" and "[t]his raise[d] concerns that the [plaintiff's] claims for protection [might] not be genuine".

The delegate said that because she had "not been able to interview" the plaintiff and having considered the information before her (including the plaintiff's limited responses to her requests for further information), she could not be satisfied that the plaintiff's claims were credible and she rejected them "in their entirety". The delegate concluded that she did not accept as credible the plaintiff's "claims that she is a lesbian" and did not accept the plaintiff's "claim that she was subjected to past harm in Lebanon [sic] by the authorities or her family members because she is a lesbian". The reference to Lebanon was obviously an error.

Issues:-

(a) Ground 1: in rejecting the plaintiff's claims to be a lesbian and to have suffered past harm in Turkey, did the delegate reasoned illogically, irrationally or unreasonably?

(b) Ground 2: whether the delegate acted unreasonably in exercising their discretion under s 62 of the Act to refuse to grant the visa without taking any further action to obtain additional information from the Plaintiff which had been sought under Section 56 of the Act,and/or the Plaintiff's views on information which had been sought under Section 57 of the Act?

Ground 2 – unreasonable exercise of s 62 discretion

The logical starting point is ground 2, which concerns the delegate's decision to exercise the discretion under s 62 of the Migration Act to refuse to grant the plaintiff a protection visa without taking any further action to obtain additional information from the plaintiff.

Section 62 of the Migration Act, headed "Failure to receive information does not require action", provides:

"(1) If an applicant for a visa:

(a) is invited to give additional information; and

(b) does not give the information before the time for giving it has passed;

the Minister may make a decision to grant or refuse to grant the visa without taking any action to obtain the additional information.

(2) If an applicant for a visa:

(a) is invited to comment on information; and

(b) does not give the comments before the time for giving them has passed;

the Minister may make a decision to grant or refuse to grant the visa without taking any further action to obtain the applicant's views on the information." (emphasis added)

It may be accepted that the Migration Act does not impose an obligation on a decision-maker to give reasons for exercising the discretion conferred by s 62. Nonetheless, it was common ground that the power must be exercised reasonably.

The principles are well established and may be stated shortly. "Parliament is taken to intend that a statutory power will be exercised reasonably by a decision‑maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker" (emphasis in original). That conclusion will be open where a decision is "so unreasonable that no reasonable person could have arrived at it", although it is by no means limited to such a case. It is concerned with both outcome and process.

In the present case, the critical point is that it was apparent on the face of the email sent by the plaintiff on 20 February 2020 that she did not realise that the Department was offering her an interview in Sydney. Her response to the email offering to reschedule the interview in Sydney was: "i am on the street without money how can i make it to come melbourne, i really in bad situation" (emphasis added).

This also has to be seen in the context of other information on the plaintiff's file which was in evidence before this Court, including the plaintiff's email sent three days earlier, in which she said, among other things: "i am in sydeny without money and home, i have been reaaly bad situation to come back melbourne for case, no body listen to me even government, call me bla bla or whatever or ye ye ye, i am really suffering mentally and phscichly". The Minister submitted that this was "a rational response written in English". That submission cannot be accepted. The information before the delegate indicated that the plaintiff was homeless, had no money, struggled to communicate in English and had been experiencing serious mental health issues requiring hospitalisation.

No one from the Department attempted to correct the plaintiff's misunderstanding as to the location of the interview she was being offered. It is not necessary to decide whether, given the plaintiff's circumstances, someone should have attempted to correct the plaintiff's misunderstanding in Turkish because no attempt was made in English. The email sent on 3 March 2020 stating that the Department might be able to provide support if the plaintiff "continued to experience difficulty" and inviting the plaintiff to contact the Status Resolution Officer did not ameliorate the situation. The plaintiff obviously was experiencing difficulty, and the offer of support did not attempt to inform the plaintiff that she had misunderstood that she was being offered an interview in Sydney. That was the critical issue that needed to be addressed.

The Minister submits that it was not unreasonable for the delegate to exercise the discretion conferred by s 62 because "the plaintiff [was] given multiple opportunities to respond to the delegate's request for information and [did] not respond[] substantively" (emphasis added). The Minister also drew attention to the difficulty the Department had experienced in contacting the plaintiff in the seven months or so leading up to the delegate's decision.

To say that the plaintiff did not respond substantively is to ignore what the plaintiff did communicate, namely, that she was in desperate circumstances and could not go to Melbourne. No reasonable decision-maker could have ignored the plaintiff's misunderstanding, particularly having regard to her circumstances, and proceeded to refuse to grant a visa for reasons that depended on the plaintiff's failure to provide further information and to attend an interview.

It must be accepted that, if a visa applicant is unresponsive, there may come a point in time where it is reasonable for a decision‑maker to exercise the discretion under s 62 of the Migration Act and make a decision to refuse to grant a visa. But no reasonable decision-maker could have decided that that point had been reached when the plaintiff had obviously misunderstood what was being offered to her and no one attempted to correct her misunderstanding.

The Minister's reliance on s 51A of the Migration Act, which provides that Subdiv AB of Div 3 of Pt 2 (which contains s 58, among other provisions) is taken to be "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with", is misplaced. The complaint which has been upheld is of unreasonableness, not denial of natural justice.

Given that the plaintiff's application must be upheld on the basis of ground 2, it is strictly unnecessary to consider the remaining grounds. It is appropriate, however, to say something about each ground.

Ground 1 – unreasonable finding that claims for protection were not credible

By ground 1, the plaintiff contends that in rejecting her claims to be a lesbian and to have suffered past harm in Turkey, the delegate reasoned illogically, irrationally or unreasonably. The parties' submissions on this ground raise three issues. First, can the formation of a state of satisfaction be impugned on the basis that the process of reasoning engaged in was unreasonable? Second, did the delegate in fact rely entirely, or substantially, on the plaintiff's failure to provide substantive responses and to attend an interview in reaching her credibility findings? Third, assuming the answer to the first two questions is "yes", was it unreasonable for the delegate to rely on the plaintiff's failure to provide substantive responses and to attend an interview?

The first issue arises because of the terms of s 65 of the Migration Act, which provides that the Minister (or her delegate) is to grant a visa if satisfied that, relevantly, the criteria prescribed for the visa are satisfied and is to refuse to grant the visa if not so satisfied. The delegate refused to grant the plaintiff a protection visa because she was not satisfied that the plaintiff met the relevant criteria.

Drawing on the reasons of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS, the Minister submits that the proper test for whether the formation of a state of satisfaction is unreasonable is whether the state of satisfaction reached "is one at which no rational or logical decision maker could arrive on the same evidence". In other words, the process by which the decision‑maker did in fact reach their state of satisfaction is said to be less relevant. In this respect, the Minister distinguished the test for unreasonableness in respect of "an exercise of a power".

The Minister's submissions are rejected. As stated above, unreasonableness is concerned with both outcome and process[9]. Whether what is being reviewed is an exercise of a power or the formation of a state of satisfaction, a finding of unreasonableness is not limited to cases where the outcome is one which no reasonable decision-maker could have reached. As Crennan and Bell JJ relevantly said: "the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage"[10] and a decision might be said to be illogical or irrational (or, it might be added, unreasonable) "if there is no logical connection between the evidence and the inferences or conclusions drawn". Leaving aside the supposed distinction between the exercise of a power and the formation of a state of satisfaction, it is not in dispute that adverse credibility findings are susceptible to jurisdictional error on the basis of unreasonableness.

The second issue raised is therefore to identify what inferences or conclusions were drawn by the delegate. That is, what is the proper construction of the delegate's reasons? The Minister submitted that the delegate did not rely solely on the plaintiff's failure to provide further information and to attend an interview; rather, the delegate relied on the underlying doubts she had about the plaintiff's claims compounded by the plaintiff's failure to provide further information and to attend an interview.

The difficulty with this argument is that even if the delegate also relied on her underlying doubts in finding that the plaintiff's claims were not credible, it is not, and could not be, suggested that the delegate did not also rely on the plaintiff's failure to provide further information and to attend an interview. And the Minister did not submit that if the delegate relied on the plaintiff's failure to provide further information and to attend an interview, and that was an error, the error was not material.

Whether or not the plaintiff's failure to provide further information and to attend an interview was the only matter relied on by the delegate, the delegate's reasons make it plain that those matters were the critical considerations. The first paragraph of the reasons under the heading "Findings of Fact" describes the plaintiff's failure to "engage with" the delegate's offer to schedule an interview in Sydney, which was said to be "further reason for concern about the credibility of her protection visa claims". The next three paragraphs each start by identifying the plaintiff's failure to respond to a particular concern raised by the delegate and finish with the conclusion that this "raise[d] concerns" about the credibility of the plaintiff's claims. The final paragraph states that given that the delegate was unable to interview the plaintiff and having considered the information before her (including the plaintiff's limited responses to her requests for further information), the delegate could not be satisfied that the plaintiff's protection claims were credible and, therefore, the delegate rejected the plaintiff's claims "in their entirety".

The third issue is whether it was unreasonable for the delegate to rely on the plaintiff's failure to provide further information and to attend an interview as supporting the conclusion that her claims were not credible. The short answer is that it was unreasonable. On the face of the emails sent by the plaintiff on 17 and 20 February 2020, the plaintiff: was homeless; was not fluent in English; was suffering from mental health problems ("i am really suffering mentally"); had no phone and no money; and did not understand that the delegate was offering to reschedule the interview in Sydney.

Yet, the delegate found that the plaintiff's claim to be a lesbian and her claim that she was subjected to harm in Turkey on that account were not credible because the plaintiff had:

(1) failed to respond properly to the delegate's concerns raised in the letters sent on 14 February 2020;

(2) failed to attend her scheduled interview in Melbourne or provide a "reasonable explanation" for why she did not attend; and

(3) failed to "engage" with the offer to reschedule the interview in Sydney.

No reasonable decision-maker could have reasoned in the way that the delegate reasoned. First, it is not correct that the plaintiff "did not engage" with the offer to reschedule the interview in Sydney. She did not understand that an interview in Sydney was being offered (as was plain on the face of the emails) and, as explained above, the delegate did not attempt to correct this misunderstanding.

Second, it was unreasonable for the delegate to find that the plaintiff had failed to provide "a reasonable explanation for her failure to attend" her scheduled interview in Melbourne. The delegate was aware of information indicating that the plaintiff was in Sydney, struggled to communicate in English, was homeless, had no money and was suffering from serious mental health issues.

The delegate's conclusion that the plaintiff's failure to "engage" with the offer to reschedule the interview was a "further reason for concern about the credibility of her protection visa claims" was a combination of the first and second errors. The delegate did not refer to the plaintiff's difficulties understanding and communicating in English, her mental health issues or homelessness. Nor did the delegate acknowledge the fact that the plaintiff misunderstood that she was being offered an interview in Sydney. As explained, all of those matters were evident on the face of the plaintiff's correspondence and other emails on the plaintiff's file.

The delegate proceeded on the false unstated premise that the only explanation for that failure to engage was that there was some doubt about the veracity of the plaintiff's claims. The adverse credibility findings that the delegate arrived at by this flawed process of reasoning were not reasonable.

Extension of time

The Minister resisted the grant of an extension of time, relying on the asserted weakness of the plaintiff's grounds, the plaintiff's failure to invoke her right of merits review and her failure to satisfactorily explain the delay.

An extension of time should be granted. The plaintiff's substantive application has merit. Her delay in making the application to this Court was also satisfactorily explained. When the plaintiff was able to seek merits review, she was suffering from acute mental illness and was restricted in her ability to access her email because public libraries were closed as a result of the pandemic lockdown[19]. None of those matters were challenged by the Minister. The delay is also explained in part by the difficulty of the Legal Aid Commission of New South Wales taking instructions (as a result of the plaintiff being in detention, not being fluent in English and suffering from mental health problems) and the pandemic. Finally, the Minister identifies no prejudice that would result from the grant of an extension of time.

Conclusion:-

A writ of certiorari should issue to quash the impugned decision. As "the duties of the Minister to consider and determine the application remain unfulfilled ... their performance is able to be compelled by a constitutional writ of mandamus", and such a writ should issue.

The orders of the Court are:

1. Pursuant to s 486A(2) of the Migration Act 1958 (Cth), the period within which an application may be made for a remedy to be granted in relation to the decision made by a delegate of the defendant on 17 March 2020, notified to the plaintiff on 18 March 2020, is extended to 8 November 2021.

2. Pursuant to r 4.02 of the High Court Rules 2004 (Cth), the time fixed by rr 25.02.1 and 25.02.2(b) be enlarged in respect of this application.

3. A writ of certiorari issue to quash the decision made by a delegate of the defendant on 17 March 2020, notified to the plaintiff on 18 March 2020, to refuse to grant the plaintiff a protection visa.

4. A writ of mandamus issue directed to the defendant requiring the defendant to determine the plaintiff's application for a protection visa according to law.

5. The application otherwise be dismissed.

6. The defendant pay the plaintiff's costs of and incidental to the application.

Added a post 

Kozarov v Victoria [2022] HCA 12 (13 April 2022)

Intro:-

This appeal arises out of proceedings commenced in the Supreme Court of Victoria for damages for the negligent failure of the respondent to prevent psychiatric injury to the appellant in the course of her employment with the respondent as a solicitor in the Specialist Sexual Offences Unit ("the SSOU") of the Victorian Office of Public Prosecutions ("the OPP").

In February 2012, the appellant was diagnosed with post-traumatic stress disorder ("PTSD") resulting from vicarious trauma which she had suffered until then in the course of her employment. She was later also diagnosed with major depressive disorder which was found to be a corollary of the PTSD.

The trial judge (Jane Dixon J) held the respondent liable to the appellant in negligence and awarded damages in her favour. Her Honour found that the respondent had been placed on notice of a risk to the appellant's mental health by the end of August 2011 ("the notice finding"), such as to require the respondent to take steps by way of reasonable response which included offering her rotation out of the SSOU to work in another section of the OPP. Her Honour also found that, at the end of August 2011, the appellant would have accepted an offer of rotation out of the SSOU to work in another section of the OPP ("the rotation finding"), thereby avoiding the exacerbation of her PTSD that occurred between August 2011 and February 2012.

Upholding the notice finding but rejecting the rotation finding, the Court of Appeal (Beach and Kaye JJA and Macaulay A-JA) allowed the respondent's appeal.

In her appeal by special leave to this Court, the appellant sought to overturn the Court of Appeal's rejection of the rotation finding. For the following reasons, the Court of Appeal did not err in accepting the notice finding, but the Court of Appeal erred in rejecting the rotation finding. Accordingly, the appeal must be allowed.

Facts:-

In June 2009, the appellant joined the SSOU as a recently admitted solicitor, in a "VPS Grade 4" role. The appellant's work in the SSOU routinely involved interaction with survivors of trauma and exposure to their traumatic experiences including by attending court to instruct in sexual assault trials, meeting with child and adult alleged victims of sexual offences and their families, viewing explicit child pornography and preparing child complainants for cross-examination. From time to time, the appellant worked in a more senior "VPS Grade 5" role, in temporary "backfilled" positions within the SSOU.

In 2009 or 2010, the appellant attended a one-day training workshop at the OPP on the topic of "Understanding and working with victims of trauma" ("the Benstead workshop"). The workshop became a forum for intense discussions about the emotional effects of work in the SSOU. On that occasion, the appellant asserted that there was not enough being done to assist SSOU staff, and she gave examples of how her work was affecting her as a mother.

The appellant became increasingly vocal at staff meetings from late 2010 onwards about how work was affecting her daily life, including describing feelings of paranoia about leaving her children with other people, including at activities and with school teachers, her refusal to allow her son to be an altar boy, and dreaming of her children being the complainants in her matters.

By 2011, the appellant was known by the manager of the SSOU, Mr Brown, and the deputy manager of the SSOU, Ms Robinson, to be a dedicated, hard-working, ambitious and loyal employee of the OPP. Mr Brown and Ms Robinson also knew that the appellant had upwards of 25 files, when the desirable file load was no more than 20; that she had been experiencing physical health ailments, including the need to take time off for medical appointments from time to time; and that she was a mother of young children and a sole parent.

Events between April and August 2011

On 18 April 2011, SSOU staff including the appellant signed a memorandum addressed to Mr Brown and Ms Robinson concerning staff wellbeing ("the staff memorandum"). The staff memorandum followed an after-hours meeting in the absence of management at which significant concerns about wellbeing were discussed. The staff memorandum recorded that the SSOU solicitors were experiencing increasing court commitments; that solicitors were working long hours and taking work home on weeknights and on weekends; and that "solicitors ... reportedly experienced a marked increase in the symptoms associated with stress". The memorandum included a lengthy list of stress-related symptoms said to be experienced by SSOU solicitors, as well as a list of "unhealthy behaviour/lifestyle choices" that solicitors reported themselves to have made as a result of the stress-related symptoms.

The trial judge found that the appellant's signature on the staff memorandum "notified the [respondent] of ongoing health and well-being impacts" experienced by SSOU staff, including the appellant]. This finding was supported by expert evidence that the staff memorandum should have alerted the SSOU's managers to the probability that SSOU staff members were suffering from symptoms of PTSD.

Her Honour considered that the staff memorandum provided the context in which subsequent signs of risk attaching to the appellant were to be viewed and assessed. Her Honour found that "the [appellant's] demeanour, presentation and conduct both before and after the memo combined to show an accretion of signs that she was being adversely affected by her work", culminating in "the presentation of a staff member who, by around the end of August 2011, needed active intervention and proper supervision to ensure that she was not damaged by her work".

Events from September 2011

From 29 August 2011 until the end of December 2011, the appellant continued to deal with serious sexual offences in the SSOU and, in November 2011, she accepted a promotion to a permanent VPS Grade 5 role in the SSOU. She took annual leave and long service leave for the whole of January 2012, as had been arranged in October 2011. On 31 January 2012, the appellant sought an extension of her leave from 7 February 2012 (when the appellant had been due to return to work) to 10 February 2012. On 9 February 2012, the appellant requested that she be moved out of the SSOU. Thereafter, there were attempts to return the appellant to work at the OPP in different areas until 20 April 2012. Those attempts were unsuccessful and, consequently, the appellant's employment was terminated.

Issue:-

Was the Respondent liable from its failure to take reasonable measures in response to "evident signs" of the Appellant's work-related PTSD?

Notice finding

In pursuing its Notice of Contention, the respondent did not seek to challenge the practice of this Court not to disturb concurrent findings of fact "in the absence of special reasons such as plain injustice or clear error"[24]. In the result, the respondent failed to establish error or injustice of any kind on the part of the trial judge or the Court of Appeal in making and maintaining the notice finding.

The trial judge found that "viewed prospectively", by the end of August 2011, a reasonable person in the position of the respondent "would have adverted to the evident signs regarding the [appellant] and observed that she was failing to cope with her allocated work and that her mental health was at risk". The signs relevantly included: (1) the appellant's signature to the staff memorandum, which stated staff complaints about health impacts, including psychologically based impacts, caused by the SSOU's work; (2) the appellant's statements at the Benstead workshop, staff meetings and the Carfi session about her hypervigilance and abnormally overprotective parenting practices as a result of her work; (3) the appellant's excessive file load, her case mix, which involved a high proportion of child complainant cases, and her patterns of working late and on weekends and public holidays; (4) the appellant's observable emotional involvement in some cases, such as using a nickname for her "favourite" child complainant; (5) the allocation to the appellant of the Lim matter, a particularly traumatic matter, in the face of her resistance to taking it because she was struggling with her existing case load; (6) the appellant's sudden departure from work on 12 August 2011, during the Lim trial, after an episode of dizziness, and her subsequent time away from work until 29 August 2011; (7) the attempted suicide of one of the child complainants in the Lim case, about which the appellant was informed while she was on leave; (8) the observation of Mr Brown (which he told the appellant was shared by others) that the appellant was not coping with the demands of her work; and (9) the appellant's "highly emotive and agitated reaction" to her disagreement with Mr Brown on 29 August 2011.

Rotation finding

As it was conducting an appeal by way of rehearing, the Court of Appeal was required to conduct a "real review" of the evidence given at first instance and of the trial judge's reasons for judgment to determine whether the trial judge erred in fact or law. The appellant did not dispute that the Court of Appeal was in as good a position as the trial judge to decide on the proper inference to be drawn about the appellant's probable conduct from the available evidence, giving appropriate respect and weight to the conclusion of the trial judge.

There is some ambiguity in the trial judge's reasons as to whether her Honour considered that, in the appellant's case, the only option that would have avoided the exacerbation of her PTSD between August 2011 and February 2012 was rotation out of the SSOU. However, the trial judge ultimately reached the conclusion that work-related screening of the appellant at the end of August 2011 "would have revealed that the [appellant] needed to be rotated out of the SSOU because of the connection between her work and her symptoms at that time". The trial judge found that there was no good reason why the appellant could not have been rotated to another part of the OPP that did not manage sexual offences[34].

The trial judge proceeded on the basis that the appellant's rotation from the SSOU required her cooperation, and the Court of Appeal observed that there was no suggestion that the respondent could have compelled the appellant to move to another unit that did not involve work relating to sex offences. Thus, the appellant was required to prove on the balance of probabilities that, if offered rotation out of the SSOU, she would have accepted it. The trial judge found that the appellant discharged this burden, having regard to the appellant's recognition of her need for professional psychological help in August 2011 and her cooperation with exploring alternative roles at the OPP after 9 February 2012.

The Court of Appeal noted that the appellant did not give evidence that she would have agreed to rotation out of the SSOU at the end of August 2011. Their Honours stated that the circumstances of 9 February 2012 relied upon by the trial judge were very different from the circumstances of late August 2011. Their Honours referred to the appellant's strong reaction to Mr Brown's suggestion that she was not coping and the terms of her second email on 29 August 2011, placing particular reliance on the appellant's statement that she was "passionate about continuing [her] work in the [SSOU]". Their Honours also noted that the appellant was by then also seeking promotion in the SSOU and that, on 9 November 2011, she signed a contract for a permanent position there. On the basis of these matters, "having looked afresh at the evidence, and making due allowance for the advantage of the trial judge", the Court of Appeal formed the view that "it could not be concluded that the [appellant] proved, on the balance of probabilities, that the appropriate exercise of care by the [respondent] would have resulted in the [appellant] accepting a rotation out of the SSOU at any time between the end of August 2011 and February 2012".

The Court of Appeal erred in forming this view. The appellant's cooperative conduct in February 2012, which was with the benefit of insight about the harmful effect of the nature and intensity of her work upon her mental health, while not determinative, was relevant evidence in support of the rotation finding. Also relevant, and not adverted to by the Court of Appeal, was the expert evidence of Professor McFarlane, a psychiatrist, that a "significant majority" of people assessed by him and receiving appropriate advice, appropriately communicated, would accept that advice. The substance of this evidence was that it is more common than not for persons to heed medical advice given to them about the cause of a diagnosed serious illness and the means by which that cause could be either mitigated or removed. This was important evidence in support of the rotation finding.

The Court of Appeal also failed to advert to the inherent likelihood that a reasonable person advised of the risks of serious psychiatric injury might be expected, on the balance of probabilities, to accept advice to avoid those risks. It was inherently likely that the appellant, faced with advice as to the need to rotate out of SSOU in order to avoid an exacerbation of her PTSD, would have acted self-interestedly in accordance with the advice. In this regard, it is significant that the appellant gave extensive evidence at the trial and the trial judge rejected the respondent's attacks upon her credibility, did not accept that she was an unsatisfactory witness and found her evidence to be "generally coherent and credible". The Court of Appeal should have adverted to the real possibility that the appellant's demeanour and credibility may have influenced the trial judge in making the rotation finding].

It is true that there was a body of material that tended against the rotation finding. This material included the appellant's commitment prior to February 2012 to the SSOU's work and the social importance of that work; the commitment of SSOU staff, including the appellant, to specialisation in sexual offence work with the accompanying inevitability of vicarious trauma and the limited opportunities for "time out"; the instances of the appellant's applications for promotion within the SSOU as further indication of her strong desire to do the traumatic work involved; and the appellant's apparent outrage at the possibility that Mr Brown thought that the appellant should no longer be in the SSOU. However, these factors were of relatively little weight in assessing the counterfactual, which involved a diagnosis of serious psychiatric illness and appropriate advice. On the whole of the evidence, the trial judge's rotation finding was the preferable one.

Conclusion:-

The appeal should be allowed with costs. The orders of the Court of Appeal should be set aside. In their place, it should be ordered that the appeal to that Court be dismissed with costs

Added a post 

Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 (6 April 2022)

Intro:-

There was no dispute at any stage of this proceeding that the Association owed a duty to take reasonable care to avoid foreseeable risks of personal injury to participants in the campdrafting event, including Ms Tapp. The Association admitted that it owed Ms Tapp a duty of care to organise, manage, and provide the campdrafting event with reasonable care and skill. The Association did not contest the trial judge's finding that "[w]hat was required in taking reasonable care was for an informed decision to be made as to whether it was safe to continue with the competition". But the Association claimed that it had not breached its duty, that any breach had not caused Ms Tapp's injuries, and that Ms Tapp's injuries were the result of the materialisation of an obvious risk. The trial judge and a majority of the Court of Appeal of the Supreme Court of New South Wales accepted those submissions.

This appeal concerns: (i) whether the Association breached its duty of care to Ms Tapp within s 5B of the Civil Liability Act 2002 (NSW); (ii) whether that breach of duty caused Ms Tapp's injuries within s 5D of the Civil Liability Act; and (iii) whether the Association was not liable in negligence to Ms Tapp by reason of s 5L of the Civil Liability Act because her injuries were the "result of the materialisation of an obvious risk of a dangerous recreational activity". For the reasons below, (i) the Association breached its duty of care by failing to stop the event in order to inspect the ground of the arena and to consider its safety when the Association knew of substantially elevated risks of physical injury to the contestants; (ii) that breach of duty caused Ms Tapp's injuries; and (iii) the injuries were not the result of materialisation of an obvious risk. The appeal should be allowed.

Facts:-

Although only 19 years old at the time of her spinal injury, Ms Tapp was an experienced and very able horse rider and campdraft contestant.

The Association's principal witness at trial was Mr Shorten. The trial judge found Mr Shorten to be "a genuine person who was flustered by the processes of cross‑examination, but was doing his best to be truthful and to assist the Court". Mr Shorten's evidence established that a contestant might fall for reasons other than their horse slipping because of the poor condition of the surface. Mr Shorten described the risks of campdrafting as including the horse falling by losing its footing or contacting the hooves of the animal being chased, or the rider losing balance and falling off.

It appears that the Open Campdraft proceeded without incident from the time of Mr Shorten's ride as contestant 17 until the time of contestant 65. At 6.14 pm, contestant 65, Mr Clydsdale, fell from his horse. At 6.22 pm and 6.36 pm, two more contestants, Mr Sadler and Mr Gillis, respectively contestants 70A and 82, fell from their horses. A document entitled "Open Draft Draw" contained the order in which contestants had been drawn to compete in the Open Campdraft, and recorded the number of points they had scored. The document also recorded which contestants had had falls. The falls of Mr Clydsdale, Mr Sadler, and Mr Gillis were described in the Open Draft Draw as "bad falls". It was conceded by Mr Shorten that a bad fall is accepted "in campdrafting circles as a signal that the surface needs attention to prevent another fall", although Mr Shorten's evidence was that, other than Ms Tapp's fall, he only saw the falls of Mr Gillis and Mr Sadler, and that Mr Gillis' fall was a "bad fall", but Mr Sadler's was not.

After the falls of Mr Clydsdale, Mr Sadler, and Mr Gillis, the Open Campdraft was delayed. The delay arose because Mr Shorten was approached by an experienced campdrafter, Mr Stanton, who was listed as contestant 116 in the draw. The trial judge recorded Mr Shorten's evidence of Mr Stanton's first approach to Mr Shorten. On that first approach, Mr Stanton said that the Open Campdraft should be stopped because "the ground [was] getting a bit slippery". Mr Shorten's reply was that this was not fair because "people have already competed and they have their scores and if the ground is better in the morning the people who have already ridden on the ground might not make the final and that's not fair".

Mr Shorten then spoke with Mr Young, the Chair of the MRC and a director of the Association, and Mr Gallagher, who was the competition judge. Mr Young said that "the surface is okay. Competitors need to ride to the condition of the ground". And Mr Gallagher said that he thought that the competition should keep going. Mr Shorten also spoke with two contestants who had fallen from their horses, Mr Gillis and Mr Sadler. Mr Gillis said that he rode too hard and Mr Sadler said that he fell just before the gate. There was no evidence that either contestant was asked about the condition of the ground. And neither contestant said anything about whether the surface of the arena had caused their fall.

At about 6.58 pm, another contestant fell from his horse. That contestant was number 98, Mr Piggot. Mr Piggot's fall was also described in the Open Draft Draw as a "bad fall". Very shortly after Mr Piggot's fall, Mr Shorten was again approached by Mr Stanton. Mr Stanton said, yet again, that something should be done about the event because he thought that the ground was "unsafe". The event was delayed while Mr Shorten and Mr Callinan (the President of the Sports Club, which coordinated and conducted carnivals and rodeos affiliated with the Association) walked around and spoke with Mr Young and another MRC board member, Mr Smith. One or both of Mr Young and Mr Smith said that "the riders should ride to the conditions". And Mr Young said again that he thought that "the arena surface is still alright".

Mr Shorten said that he had considered the condition of the ground and noticed that the surface was not wet but was moist in parts and dust was still flowing up. Mr Shorten gave evidence that he told Mr Gallagher that "we will continue but we will make an announcement that any competitor who wishes to withdraw can do so and they will get their money back". An announcement was then made over the loudspeaker. Mr Shorten's evidence was that he had said to Mr Young and Mr Smith "we will announce that if competitors wanted to scratch they would get their full entry fee back or they could compete at their own risk" (emphasis added), but the trial judge found that the content of the announcement was only an offer of a refund if riders chose not to compete.

In her first statement, Ms Tapp said that, immediately before the fall, "the ground felt heavy and my horse struggled to get a proper stride. My horse could not get her next stride and she went down on her front that is, she fell straight in a direct line and then we both slid onto the ground". In her second statement, Ms Tapp said: "I felt my horse's front legs slide from beneath me and slide toward the right. My horse went down onto her front and both my horse and myself landed on the ground". The evidence from Ms Tapp's sister included a statement that: "I remember the horse looked like its front legs slid from under it and the horse and [Ms Tapp] fell." And Ms Tapp's father gave evidence that, as best he could tell, "the horse and [Ms Tapp] fell because the front legs of the horse slid from beneath it". After Ms Tapp's fall, the competition stopped for the day. The Sports Club's Incident Report records that, the following day, the arena was ploughed for three hours before the competition recommenced.

Sections 5B and 5C

For the purpose of assessing breach of duty, s 5B(1) of the Civil Liability Act provides that "[a] person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions".

Section 5B(2) provides that "[i]n determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm".

Section 5L

Division 5 of Pt 1A of the Civil Liability Act is concerned with "Recreational activities". Within Div 5, s 5L expresses a defence, the onus of which lies on the defendant[119]. Section 5L provides:

"No liability for harm suffered from obvious risks of dangerous recreational activities

(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2) This section applies whether or not the plaintiff was aware of the risk."

The defence in s 5L requires a defendant to prove that: (i) the plaintiff was engaged in a "recreational activity"; (ii) the recreational activity was dangerous in the sense that it involved "a significant risk of physical harm"; (iii) there was a risk of that activity that was obvious; and (iv) the harm was suffered by the plaintiff as a result of the materialisation of that obvious risk. Once these four elements are proved, the defence in s 5L will apply to the extent that the harm suffered by the plaintiff was a result of the materialisation of that obvious risk.

There was no dispute in the Court of Appeal or in this Court that Ms Tapp was engaged in a dangerous recreational activity, namely campdrafting. The issue was whether there was a risk of that activity that was obvious and that materialised. An "obvious risk" is defined by ss 5F and 5K as "a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person", including "risks that are patent or a matter of common knowledge", and can include risks that have "a low probability of occurring" or which are "not prominent, conspicuous or physically observable".

Characterising "risk" at the appropriate level of generality

The proper assessment of the alleged breach of duty depends on "the correct identification of the relevant risk of injury", because it is only then that an assessment can take place of what a reasonable response to that risk would be. The enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages. The characterisation of the relevant risk should not obscure the true source of the potential injury.

The correct approach to characterisation of the risk for the purposes of breach of duty under s 5B of the Civil Liability Act was adopted in Port Macquarie Hastings Council v Mooney. In that case, a pedestrian slipped and fell into a stormwater drain on an unlit, temporary gravel footpath. The characterisation of the risk ignored the manner in which the pedestrian fell, and the particular hazard which precipitated the fall (the stormwater drain). Sackville A‑JA said:-

"The relevant risk of harm created by the construction or completion of the footpath was that in complete darkness a pedestrian might fall and sustain injury by reason of an unexpected hazard on the path itself (such as an unsafe surface or variation in height) or by unwittingly deviating from the path and encountering an unseen hazard (such as loose gravel, a sloping surface or a sudden drop in ground level)."

Section 5C(a) of the Civil Liability Act reflects, and is consistent with, the common law. The effect of this provision is that a defendant cannot avoid liability by characterising a risk at an artificially low level of generality, that is, with too much specificity. As this Court said in Chapman v Hearse, "one thing is certain" and that is that in identifying a risk to which a defendant was required to respond, "it is not necessary for the plaintiff to show that the precise manner in which [their] injuries were sustained was reasonably foreseeable". The Court continued:-

"it would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable [person] to foresee damage of a precise and particular character or upon [their] capacity to foresee the precise events leading to the damage complained of".

Similarly, in Rosenberg v Percival, Gummow J said:-

"A risk is real and foreseeable if it is not far‑fetched or fanciful, even if it is extremely unlikely to occur. The precise and particular character of the injury or the precise sequence of events leading to the injury need not be foreseeable. It is sufficient if the kind or type of injury was foreseeable, even if the extent of the injury was greater than expected. Thus, in Hughes v Lord Advocate [[1963] AC 837], there was liability because injury by fire was foreseeable, even though the explosion that actually occurred was not."

In the context of s 5L, as Bryson JA observed in C G Maloney Pty Ltd v Hutton‑Potts, "[m]uch depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated". Although the identification of the appropriate level of generality will not always be straightforward, there are four significant matters that must guide the reasoning process concerning the selection of the correct level of generality. First, and contrary to some views that have been expressed in the New South Wales Court of Appeal, the "risk" with which s 5L is concerned will usually need to be assessed after a determination that there is prima facie liability for negligence. Secondly, the s 5L risk should be characterised at the same level of generality as the risk is characterised in the course of assessing whether the defendant has breached a duty of care. Thirdly, the generality at which the risk in s 5L is stated should include the same facts as established the risk for the purposes of the breach of duty which caused the harm to the plaintiff, but no more. Fourthly, and consequently, the characterisation of the risk does not need to descend to the precise detail of the mechanism by which an injury was suffered if that detail is unnecessary to establish a breach of duty. Each of these four matters is explained in turn below.

The focus should be upon the same essential circumstances which established the necessity for a reasonable person in the position of the defendant to take reasonable precautions in performance of a duty of care. The risk with which s 5L is concerned is thus the same risk as that with which s 5B is concerned.

Issue:-

Whether-

a) the Association breached its duty of care by failing to stop the event in order to inspect the ground of the arena and to consider its safety when the Association knew of substantially elevated risks of physical injury to the contestants;

b) that breach of duty caused Ms Tapp's injuries; and

c) the injuries were not the result of materialisation of an obvious risk

Consideration:-

The probability of harm: s 5B(2)(a)

The probability of harm falls to be assessed at the time at which a reasonable person in the position of the Association should have taken precautions. That time was shortly before 7 pm on 8 January 2011, being the time before Ms Tapp competed in the Open Campdraft. It is irrelevant that the condition of the ground might have been entirely safe the previous day, or in the morning of 8 January 2011.

In assessing a substantially elevated risk or probability of harm shortly before Ms Tapp competed, it is necessary to identify the knowledge about the nature of the ground of the arena that would be held by a reasonable person in the position of the Association, ascertained by the matters that were known or ought to have been known by the relevant members of the Committee or MRC on behalf of the Association who were responsible for ensuring that the surface of the arena was reasonably safe for the event

The trial judge and the majority of the Court of Appeal made limited reference to this evidence concerning the four falls. After observing that the evidence as to the total number of falls for the whole of the day of 8 January 2011 was unclear, the trial judge referred to Mr Shorten's evidence that he had seen two falls (those of Mr Gillis and Mr Sadler) and that "they were both in the arena when they fell". The trial judge also stated that she was "conscious of the evidence and submission that falls at campdrafting events were rare". But her Honour did not advert to Mr Shorten's acceptance that a "bad fall" is an accepted "signal" that the surface of the arena needs attention. Nor did the majority of the Court of Appeal.

The four falls were accompanied by two warnings given to Mr Shorten by the very experienced contestant, Mr Stanton: the first warning was given after the first three falls and the warning was that the competition should be stopped because "the ground [was] getting a bit slippery". The second warning was given after the fourth fall and was that something should be done about the event because he thought "the ground [was] unsafe".

Nonetheless, the Committee and MRC chose not to stop the event in order to inspect the ground of the arena and to consider its safety. One or more of the Committee or MRC members said that riders needed to ride to the conditions, and Mr Shorten agreed in cross‑examination that the justification in his mind for continuing the event was that "the event had to go on"

Ms Tapp relied on the evidence contained in the Incident Report that it took three hours for the arena to be disc‑ploughed and harrowed on the morning after Ms Tapp's fall and, when the competition commenced thereafter at 8.30 am, there were no further falls.

Precautions that a reasonable person in the position of the Association should have taken

Given the probability of harm, the potential magnitude of injury, the ease with which the event could have been stopped, and the minimal social disutility of disadvantage to contestants who participated in the Open Campdraft on 8 January 2011, the only available conclusion is that the event should have been stopped until members of the Committee or MRC on behalf of the Association inspected the arena and were satisfied that the ground of the arena was reasonably safe in that the risk of injury from falling from a horse that slipped on the ground of the arena was not substantially elevated.

The Association submitted that, although it did not stop the event for the day after Mr Piggot's fall, it did respond by temporarily suspending the event while the ground of the arena was inspected and therefore it did not breach its duty of care. That submission cannot be accepted.

The Association's submission was based upon the reasoning of Payne JA that the campdraft was delayed prior to Ms Tapp's fall "because various people, on behalf of the Association, were inspecting the arena and deciding whether it was safe to continue the event". That conclusion was not open on the evidence. While it is not in doubt that Mr Shorten delayed the Open Campdraft on each of the two occasions when Mr Stanton had questioned the safety of the arena surface, neither the trial judge's findings nor the evidence supported the finding that the arena was inspected at that time or at any time during the Open Campdraft on 8 January 2011. Apart from Ms Tapp's evidence of a delay, the only relevant evidence comprised evidence from Mr Shorten and the Incident Report. That evidence does not support a finding that "various people ... were inspecting the arena". The highest the evidence could be put is that Mr Shorten "considered the condition of the ground" and "noticed that the surface was not wet, it was moist in parts" and "[d]ust was still flowing up". In cross‑examination, Mr Shorten did not give evidence that he had inspected the arena. The relevant evidence was as follows:

"Q: When you agreed with me a minute ago that Mr Stanton was right in identifying the dangerous condition of the ground, you'd actually inspected it?

A: I walked across it, I didn't – I asked for them other fellows opinions.

Q: When Mr Stanton came back and said point blank 'Somebody's going to get hurt out there', did you inspect it again?

A: We went to the judge and asked him to halt the event, we walked across and seen Alan Young and Wayne Smith and spoke to them."

In this Court, the Association also submitted that the duty of care owed by the Association was satisfied by an informed decision that it was safe to continue with the competition. The Association submitted that the organisers made an informed decision that it was safe to continue the competition, on two occasions stopping it, considering Mr Stanton's warnings, inspecting the ground, and consulting with experienced campdrafters including the judge and participants (some of whom had themselves fallen) before unanimously deciding to proceed. On the available evidence, there was no such informed decision. Not only was there no inspection of the ground but, as McCallum JA correctly found, in the conversations that ensued, no one concluded that the surface was safe.

Accordingly, the Association breached its duty of care by failing to stop the competition in order to inspect the ground and to make "an informed decision ... as to whether it was safe to continue with the competition". The Court of Appeal erred in failing to find that the Association had breached its duty of care in this respect.

Whether the risk would have been obvious to a reasonable person in the position of Ms Tapp: s 5L

Difficult issues can sometimes arise concerning which characteristics of a plaintiff or of a defendant are to be attributed to a reasonable person in their position. None of those issues was raised in this case. The only issue was whether, from the perspective of a reasonable person in the position of Ms Tapp, the risk would have been obvious.

There are three reasons which, in combination, preclude any conclusion that the risk of injury as a result of falling from a horse that slipped by reason of substantial deterioration of the surface of the arena beyond the normal deterioration that might be expected would have been obvious to a reasonable person in Ms Tapp's position.

First, unlike the organisers of the competition on the Committee or MRC, Ms Tapp did not have the opportunity to examine the condition of the ground at all during the Open Campdraft, and particularly not in the hour before she competed, during which the other falls occurred. In cross‑examination, Mr Shorten was asked about the opportunity of contestants to "walk the arena, or walk the field in which they're going to be competing". He said that the opportunity was offered to contestants "before the [O]pen [Camp]draft started" and that "[n]o competitor gets a chance before [they] ride[] in a camp to go around the course first".

Secondly, a reasonable person in Ms Tapp's position would not have had any concerns about the condition of the ground from observations of other contestants or information about other contestants. On the day that Ms Tapp had her accident, she had already competed twice that morning, her sister had competed three times, and her father had competed four times (including one occasion shortly before Ms Tapp), all without incident.

The trial judge held that Ms Tapp "did not observe any falls and was unaware that there had been any falls during the [O]pen [Campdraft] event". Indeed, from around 5 pm, when Ms Tapp accepted her father's offer to take his place in the Open Campdraft, until she competed at around 7 pm, Ms Tapp had warmed up her horse, Xena Lena, twice in an area about 200 metres from the arena. When asked in cross‑examination about her awareness that a man had fallen shortly before she competed, Ms Tapp explained that she had been away from the arena and had been unaware of that fall.

Thirdly, as Mr Shorten said, and consistently with Rule 5, decisions concerning the quality of the surface and how the surface is maintained were made by the Committee or MRC. A reasonable person in the position of Ms Tapp, who was preparing herself and her horse to compete in the hour before being called, would have relied upon the Committee or MRC for that assessment. Further, although Ms Tapp was experienced in campdrafting, as a 19‑year‑old she was still a teenager and, as McCallum JA correctly observed, "teenagers are likely to be less attuned to risks that would be obvious to more experienced, settled members of the community". Ms Tapp's age thus reinforces the point that a reasonable person in her position would be unlikely to pause, while waiting for her run in a high‑turnover event, to reflect upon the appearance of the surface of the arena. A reasonable person in her position would, if they turned their mind to the issue at all, likely assume the Committee or MRC had made an appropriate decision about the surface.

During the time before Ms Tapp's event, she became aware that the event was delayed but no announcement was made about the reason for the delay and no one told Ms Tapp about the reason. The trial judge found that "no specific oral warning was given to [Ms Tapp] and no suggestion was made, by announcement or otherwise, that competitors 'rode at their own risk'". All that had been announced was that there was an offer of a refund of the entry fee if riders chose not to compete, but Ms Tapp did not hear the announcement and there was no suggestion that the announcement was loud enough that a reasonable person in her position, while warming up her horse in the separate arena, would have heard it. In any event, a reasonable person in Ms Tapp's position would have known, as she knew, that events were held up for other reasons such as "an injured beast ... coming out of the yard".

Conclusion:-

The appeal should be allowed with costs. The orders of the Court of Appeal of the Supreme Court of New South Wales made on 23 October 2020 should be set aside and, in their place, it should be ordered that:

(a) the appeal be allowed with costs; and

(b) the orders made by the Supreme Court of New South Wales on 4 November 2019 be set aside and, in their place, it be ordered that:

(i) there be verdict and judgment for the plaintiff in the agreed amount of $6,750,000; and

(ii) the defendant pay the plaintiff's costs.

Added a post 

Ruddick v Commonwealth of Australia [2022] HCA 9 (25 March 2022)

Intro:-

In 2021, after a series of amendments over many years to the Commonwealth Electoral Act 1918 (Cth) designed to reduce voter confusion at federal elections, the Commonwealth Parliament enacted items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) ("the 2021 Amendments"). In broad terms, those amendments constrain a registered political party from using a name or logo on the election ballot paper if that name or logo has a word in common with the name of a previously registered political party. The purpose of the 2021 Amendments is plain. It is to reduce confusion.

This case, as presented and argued, was particularly concerned with the application of the 2021 Amendments to the Liberal Democratic Party. If applied to the Liberal Democratic Party to preclude the use of its name on the ballot paper for a federal election, they would not prevent the party being registered under an alternative name, so that candidates could be identified on the ballot paper as affiliated with the same party bearing that alternative name. Alternatives conveying a similar view point include the party's previous name, the "Liberty and Democracy Party", or the name which the party has recently sought to register, the "Liberty & Democracy Party". The 2021 Amendments would not prevent the Liberal Democratic Party from campaigning, advertising, or communicating in any way under the name "Liberal Democratic Party". They would not prevent the Liberal Democratic Party from handing out "how to vote" cards with details of candidates endorsed by the Liberal Democratic Party, if it wished to continue to campaign under that name. They would not prevent endorsed candidates of the party from being identified on the ballot paper with the logo and initialism of "LDP".

Facts:-

The law from 1984

Historically, ballot papers for federal elections did not include any party endorsement with the names of candidates. That changed when, in 1983, a scheme was introduced for the registration of political parties which permitted registered parties to have their name (or, later, a registered abbreviation of it), and eventually their party logo, printed on the ballot paper next to the name of a candidate endorsed by the party.

The 1983 amendments permitted registration of a political party only in certain circumstances, which included compliance with provisions designed to avoid confusion of parties by electors. The provisions included a first‑in‑time priority to registered parties and Parliamentary parties which prevented registration of any subsequent party with a name or abbreviation that: (i) "is the name, or is an abbreviation or acronym of the name", of the prior registered party or Parliamentary party; or (ii) "so nearly resembles the name, or an abbreviation or acronym of the name" of the prior registered party or Parliamentary party that it was likely to be confused with or mistaken for the prior registered party or Parliamentary party.

In 2004, further amendments were made to the Commonwealth Electoral Act in order to address continuing confusion. Section 129(1)(da) was introduced to prevent registration of a political party if, in the opinion of the Electoral Commission, the proposed name of the party "is one that a reasonable person would think suggests that a connection or relationship exists between the party and a registered party if that connection or relationship does not in fact exist".

But even with these further amendments, Parliament considered there was still a likelihood of significant confusion. In 2005, the Joint Standing Committee on Electoral Matters observed that "[c]onfusion still arises, however, because parties that registered names prior to the 2004 amendments are still permitted to use those names". The Committee quoted a submission of the Liberal Party that the party name "liberals for forests" is "potentially confusing and can mislead voters into believing that liberals for forests has some connection to the Liberal Party or gives its preferences to the Liberal Party".

The confusion at the 2013 federal election

The confusion provisions failed to prevent significant confusion in voting in 2013. With Mr Leyonhjelm as its lead candidate, the Liberal Democratic Party received 415,901 votes (9.5 per cent of the votes) for the Senate election for New South Wales.

In a radio interview two days after the 2013 federal election, Senator Leyonhjelm said that the Liberal Democratic Party had initially expected a vote of about 2.5 to 3 per cent, which rose to about 4 per cent as a result of "donkey" votes due to the party's first position on the ballot paper. That view is consistent with a careful academic analysis that estimated that the benefit of being placed first on a ballot paper was, on average, a 1 per cent increase in a candidate's vote share. Senator Leyonhjelm referred to the 9.5 per cent of votes received and added that "you can't deny that some people would have ... mistaken us for the Liberals", although he speculated that the confusion might also have been with the Christian Democrats or the Australian Democrats. He accepted that it was possible that confusion could have contributed 75 per cent of the Liberal Democratic Party votes.

In an interim report on the inquiry into the conduct of the 2013 federal election, the Joint Standing Committee on Electoral Matters referred to concerns about "voter confusion", particularly in New South Wales, with "votes going to the Liberal Democratic Party rather than the Liberal/Nationals". The Committee observed that part of the reason may have been the position of the Liberal Democratic Party in the first column on the ballot paper combined with the format of the ballot paper, with "Liberal" as the more prominent part of the name on the line above "Democrats".

In its 2020 report, the Joint Standing Committee on Electoral Matters referred to the combination of the ballot position of the Liberal Democratic Party and the Democratic Labor Party and their use of "Liberal" and "Labor" as affecting the vote by a few percentage points, as voters had been misled. Although it is not possible to identify and then disaggregate all possible factors that might have contributed to the 9.5 per cent vote that the Liberal Democratic Party received, it is an available inference from those facts and matters, together with Mr Ruddick's admissions on the pleadings and in the agreed facts as to confusion in fact caused by the word "Liberal" in the party name, that the confusion caused by the similar name was responsible for a significant part of the increase in that vote.

Further legislative responses to avoid confusion

The Joint Standing Committee on Electoral Matters produced a further report in 2016 concerning the introduction of logos on ballot papers for reasons including assisting voters "to clearly locate their intended vote on the ballot paper". Those suggestions resulted in further amendments to the Commonwealth Electoral Act to permit the use of logos on ballot papers.

In December 2020, the Joint Standing Committee on Electoral Matters published a report on the conduct of the 2019 election. After consideration of the need to distinguish "party name registrations" because "voter choices and election outcomes should not be distorted by duplicative names", the Committee recommended that "section 129 of the Commonwealth Electoral Act 1918 should be amended to permit the Electoral Commissioner to remove a name or a part of a name from an existing or proposed party that replicates a key word or words in the name of another recognised party that was first established at an earlier time". This recommendation was the impetus for the 2021 Amendments.

The 2021 amendments

Parliament responded to the recommendation of the Committee by introducing the 2021 Amendments. The explanatory memorandum to the 2021 Amendments explained that the purpose of the amendments was to avoid confusion and to enhance the informed choice of voters: "[w]here overlap of names causes voters to mistake one party for another, it can distort their choices, in some cases by attracting a voter mistakenly to a party they did not intend to support and in other cases deterring them from supporting a party that they might otherwise give consideration to.

The impugned provisions have two central effects.

First, items 7 and 9 impose an additional requirement for registration of a new party, and hence for a party name (or abbreviated name) and logo to appear with the name of an endorsed candidate on the ballot paper. The additional requirement, contained in ss 129(3), 129(6) and 129A(2), is that the name, abbreviation or logo of an applicant party must not, without the consent of the prior registered political party, contain a word that is in the name, or the abbreviation of the name, of the prior registered political party.

Secondly, by items 11 and 14, introducing ss 134A(1)(a)(iii) and 134A(1A), an existing party cannot remain registered under its name if an earlier registered party objects to the existing party's name or logo and that name or logo contains a word that is in the name, or the abbreviation of the name, of the prior registered political party.

Legitimacy of the purpose of the 2021 amendments

As explained above, the history and sequence of amendments to the Commonwealth Electoral Act has been one of evolving legislative responses to minimise confusion. Each of the reports of the Joint Standing Committee on Electoral Matters identified a need to respond to voter confusion. It was against that background that the 2021 Amendments were enacted. The Assistant Minister began the second reading speech of the Electoral Legislation Amendment (Party Registration Integrity) Bill 2021 (Cth) by identifying that the purpose of the impugned provisions was to "reduce the risk of voter confusion". He added that the Bill "responds to reports of the Joint Standing Committee on Electoral Matters", concluding that "these provisions will enhance the integrity of the electoral process by reducing the likelihood of voters inadvertently associating or confusing political parties with similar‑sounding names".

Mr Ruddick submitted, however, that the purpose of the 2021 Amendments was illegitimate. Parliament cannot enact legislation for a purpose or design that is inconsistent with the Constitution. Mr Ruddick submitted that the purpose of the 2021 Amendments was inconsistent with ss 7 and 24 of the Constitution and the implied freedom of political communication because it was "anti‑competitive" in the sense that, despite references in the extrinsic materials to a purpose of avoiding confusion, the "real mischief" and the "true purpose" of the provisions is to reduce competition between major parties and minor parties. Mr Ruddick pointed to paras 7.41 to 7.44 in the 2020 Joint Standing Committee on Electoral Matters report, which made a number of references to major parties and minor parties.

Mr Ruddick's submission was essentially that the purpose of the 2021 Amendments expressed in the explanatory memorandum and in the second reading speech was a sham. It can be accepted that statements of purpose in an explanatory memorandum or a second reading speech are not conclusive, but it is a significant step to conclude that express statements in such extrinsic materials are a pretence designed to conceal an anti-competitive purpose.

Issue:-

Did the 2021 Amendment have the effect of imparing the quality of electoral choice by the public so as to be incosistent with ss 7 and 24 of the Constitution and the implied freedom of political communication?

Consideration:-

The broader freedom of political communication constraint

In Lange v Australian Broadcasting Corporation, this Court recognised an implied freedom of political communication as a separate and broader restriction upon legislative power. This implied freedom was based not merely upon ss 7 and 24 but also upon the structure of the Constitution and provisions such as ss 64 and 128, each of which "give rise to implications of their own".

Provided that a law has a legitimate purpose, a threshold issue for determining the validity of any law alleged to infringe the implied freedom of political communication is whether the law effectively burdens freedom of communication about government or political matters either in its terms, operation, or effect. Since the implication is "an implication of freedom under the law of an ordered society", any burden upon the freedom of political communication must be measured against the valid, existing laws which form a "constitutionally valid baseline". Proof that the law imposes a burden requires that the existing freedom is curtailed or restricted in some way. In Levy v Victoria, McHugh J made the same point about the measurement of a burden against existing, valid laws, saying that the implied freedom "gives immunity from the operation of laws that inhibit [an existing] right or privilege to communicate political and government matters ... [T]hat right or privilege must exist under the general law."

The same point was reiterated in Brown v Tasmania. In the joint judgment of Kiefel CJ, Bell and Keane JJ, their Honours said that it was "logical to approach the burden which a statute has on the freedom by reference to what [persons] could do were it not for the statute". Nettle J said that the freedom is only a "freedom to communicate by lawful means". Gordon J said that "[t]o the extent that the impugned law is congruent with the existing law, it is any incremental burden that needs justification". And Edelman J said that there can be no burden on the freedom if "the conduct about which legislation is concerned is independently unlawful, so that there was no legal freedom to communicate about government or political matters".

Mr Ruddick did not establish any burden on electoral choice or the freedom of political communication

As explained above, a threshold issue for Mr Ruddick in his submissions concerning constraints on legislative power arising from (i) ss 7 and 24 of the Constitution, and (ii) the implied freedom of political communication was to establish that the 2021 Amendments placed some burden on, respectively, informed electoral choice or the ability to communicate on government or political matters. Both of Mr Ruddick's submissions fail at this threshold stage.

Mr Ruddick effectively asks this Court to infer that the quality of electoral choice, or the freedom of communication on government or political matters, will be impaired due to the inability of a candidate to have, accompanying their name on the ballot paper, the name and logo of a party which includes a word used in another party's name. That conclusion is not self‑evident. Rather, on the material before the Court, the expected conclusion would be the opposite. The likely effect of the narrow restrictions imposed by the 2021 Amendments is, overall, to improve the clarity, and hence the quality, of electoral choice and communication on government or political matters.

The starting point is the impugned provisions of items 11 and 14 of the 2021 Amendments, which introduced ss 134A(1)(a)(iii) and 134A(1A) concerning existing registered political parties with a word in their name or logo that is used in the name or abbreviation of an earlier registered political party which objects to the use of that word. As explained above, the manner in which Mr Ruddick's challenge was made focused upon the application of these provisions to the Liberal Democratic Party.

On the assumption that the 2021 Amendments would operate to require the deregistration of the Liberal Democratic Party under that name, as it was registered after the Liberal Party, Mr Ruddick's submission invites consideration of how that deregistration would impair the quality of electoral choice by the public, or the quality of communication on government or political matters to the public.

Apart from the content of the ballot paper, deregistration of the Liberal Democratic Party would not preclude any communication with the public, including communication using the name "Liberal Democratic Party". The only potential restraint on the quality of electoral choice by the public, or on communication on government or political matters to the public, is that, by s 169 of the Commonwealth Electoral Act, a candidate for election endorsed by the Liberal Democratic Party, such as Mr Ruddick, would be unable to have that party name printed adjacent to their name on the ballot paper. Yet, as the 2013 election demonstrated, that would have the effect of reducing confusion and thus enhancing the quality of electoral choice by the public.

Even if it were accepted that there was some small constraint upon political communication and the quality of electoral choice by the inability of a candidate endorsed by the Liberal Democratic Party to use the word "liberal" on the ballot paper, the net effect would still be an enhancement of electoral choice and the quality of communication on government or political matters to the public. Contrary to Mr Ruddick's submissions, the Liberal Democratic Party would not be precluded, or impaired in any real way, from using its name to communicate any message of political philosophy. As the Commonwealth correctly submitted, items 11 and 14 do not preclude registration of names which use derivatives of the word "Liberal" in its title. The variety of the English language permits many possible derivatives of a word, compounds of the word, or synonyms for the word.

The same point can be made in relation to another political party mentioned in the special case, the "liberals for forests". In 2001, the Administrative Appeals Tribunal held that the "liberals for forests" did not present any "real risk" of being confused with or mistaken for the "Liberal Party of Australia" or the name "Liberal", although the Tribunal accepted that "[i]t may be that some persons will draw the inference that members of 'liberals for forests' are former members or have some affiliation with the Liberal Party of Australia or one of its State divisions". The latter confusion by electors was not held to be sufficient to preclude registration of the "liberals for forests".

Just four years later, in its 2005 report, the Joint Standing Committee on Electoral Matters concluded that confusion between the liberals for forests and the Liberal Party was the reason for the narrow defeat of the National Party candidate for Richmond in the 2004 federal election. The Committee referred to evidence that the "how to vote" card for the liberals for forests replicated the colours and layout of previous Liberal Party "how to vote" cards and emphasised the word "LIBERALS" in capitals, overshadowing "for forests".

The obvious inference to be drawn from the material in the special case is that the absence of the party name "liberals for forests" on the ballot paper would enhance the quality of electoral choice and political communication by reducing the potential for confusion. Conversely, there was no fact in the special case, and no written or oral submission from Mr Ruddick, which would permit any inference that, if the liberals for forests were prevented from using the word "liberal" in their party name on the ballot paper, the quality of choice of even a single elector, or any communication on a government or political matter, would be impaired in any way.

The liberals for forests, in this example, could have continued to operate and campaign under that same name or a similar name and hand out "how to vote" cards with that or a similar name, which explained that liberals for forests would be named on the ballot paper with the chosen alternative, including any derivative word from "liberal".

The implied freedom of political communication was not engaged

Mr Ruddick's case based on the implied freedom of political communication fails for a further reason. His submissions are indistinguishable from the basis upon which five members of this Court in Mulholland v Australian Electoral Commissionupheld the validity of earlier amendments to the registration scheme in the Commonwealth Electoral Act. Mr Ruddick did not seek leave to challenge the correctness of that decision.

Like this case, the appeal in Mulholland concerned Pt XI of the Commonwealth Electoral Act. Mr Mulholland, the registered officer of the Democratic Labor Party, challenged two conditions for a political party to obtain registration and have its name printed on the ballot paper as contrary to the implied freedom of political communication. Those conditions were: (i) the party must have 500 members, and (ii) two or more parties could not count the same person as a member for the purposes of registration. Each of McHugh J, Gummow and Hayne JJ, Callinan J and Heydon J expressly approved the reasoning of McHugh J in Levy v Victoria[198] and held that proof of a burden on the freedom of political communication requires "proof that the challenged law burdens a freedom that exists independently of that law". Mr Mulholland's challenge failed because the Democratic Labor Party had no right to be included on the ballot paper, independently of the provisions of the Commonwealth Electoral Act.

Conclusion:-

The questions of law stated for the consideration of the Full Court in the Special Case filed on 3 December 2021 should be answered as follows:

Question 1. Are any of items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) invalid, in whole or in part, on the ground that they infringe the implied freedom of political communication?

Answer: In relation to items 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth), the answer is "No". Otherwise unnecessary to answer.

Question 2. Are any of items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) invalid, in whole or in part, on the ground that they preclude the direct choice by the people of Senators and Members of the House of Representatives, contrary to ss 7 and 24 of the Constitution?

Answer: In relation to items 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth), the answer is "No". Otherwise unnecessary to answer.

Question 3. In light of the answers to Questions 1 and 2, what relief, if any, should issue?

Answer: None.

Question 4. Who should pay the costs of and incidental to this special case?

Answer: The plaintiff.

 

Added a post 

Stubbings v Jams 2 Pty Ltd [2022] HCA 6 (16 March 2022)

Intro:-

This is an appeal from the Court of Appeal of the Supreme Court of Victoria.

Facts:-

The appellant owned two houses in Narre Warren, both of which were mortgaged to Commonwealth Bank. The mortgage repayments were between $260 and $280 per week. The appellant did not live in either house; instead he lived at rental premises at Boneo, where he worked repairing boats for the owner of the property. Due to a falling out with the owner, the appellant ceased work and needed to move house. Rather than live at one of the Narre Warren properties, he sought to purchase another property on the Mornington Peninsula.

The appellant was unemployed and had no regular income. He had not filed tax returns in several years and was in arrears on rates payments in respect of the two Narre Warren properties. After a home loan application to ANZ was rejected for lack of financial records, the appellant was introduced to Mr Zourkas.

Mr Zourkas described himself as a "consultant", in the business of introducing potential borrowers to Ajzensztat Jeruzalski & Co ("AJ Lawyers"). AJ Lawyers in turn provided a service to clients, such as the respondents, to facilitate the making of secured loans by those clients. The primary judge found that Mr Zourkas played an "important and essential" role in these transactions, in that his involvement ensured that AJ Lawyers never dealt directly with the borrower or guarantor, such as the appellant.

The appellant and Mr Zourkas met on a number of occasions in 2015. At their first meeting, the appellant said that he "wanted to buy a little house" to live in, to which Mr Zourkas responded that "there would not be a problem going bigger and getting something with land". On the strength of that suggestion, the appellant found a five‑acre property with two houses on it in Fingal, available for $900,000. At another meeting, Mr Zourkas told the appellant that he could borrow a sum sufficient to pay out the existing mortgages over the Narre Warren properties, purchase the Fingal property, and have approximately $53,000 remaining to go towards the first three months' interest on the loan. Mr Zourkas advised the appellant that he could then sell the Narre Warren properties, reducing the loan to approximately $400,000, which the appellant could then refinance with a bank at a lower interest rate.

The two Narre Warren properties and the Fingal property would secure the appellant's obligations as guarantor. The existing debt to Commonwealth Bank secured on the Narre Warren properties totalled approximately $240,000. On the basis that the two properties had a market value of $770,000, the appellant's equity was thus worth about $530,000.

On 30 June 2015, the appellant signed a contract to purchase the Fingal property for $900,000. A deposit of $90,000 became payable on 7 July 2015. The appellant only ever paid $100 towards it.

In late July or early August 2015, Mr Zourkas introduced the appellant to Mr Jeruzalski, a partner at AJ Lawyers. On 10 August 2015, AJ Lawyers arranged to have the two Narre Warren properties and the Fingal property valued as security for the loan. Together, the properties were valued at $1,570,000[16]. Satisfied that this would support a loan, AJ Lawyers provided two letters of offer, on behalf of their clients, including the respondents, to provide first and second mortgage finance to the company. Each offer was conditional on the appellant acting as guarantor and with the three properties as security for his guarantee.

The first mortgage loan was for a sum of $1,059,000 at an interest rate of 10 per cent per annum and a default rate of 17 per cent per annum. The second mortgage loan was for a sum of $133,500 at an interest rate of 18 per cent per annum and a default rate of 25 per cent per annum. Two loans were necessary because, in line with AJ Lawyers' standard practice, the first was capped at two‑thirds of the combined property valuations to avoid a higher loan‑to‑security ratio that might be considered too risky for the lender. The second loan was required to pay Mr Zourkas' consultancy fees, loan procuration fees, the respondents' legal costs as mortgagees, and the costs and expenses of purchasing the Fingal property. It was also necessary to enable the appellant to pay the first month's interest, which was payable in advance.

On 19 September 2015, Mr Zourkas presented the appellant with two letters, dated 16 and 17 September 2015, which indicated that AJ Lawyers had been "instructed to approve" the two loans. The letters enclosed documents for execution by the appellant and the company. This documentation included a certificate of "Independent Financial Advice", to be signed by an accountant, and a certificate of "Independent Legal Advice", to be signed by a lawyer.

The certificates were of critical importance to the decision of the Court of Appeal and were a significant focus of argument in this Court. In the certificate of independent legal advice, under the heading "Acknowledgement by Guarantor", was the following list of questions, which the appellant was to answer by writing in the right‑hand column[:

"1. Have you received copies of the documents described under the heading 'Security Documents' below?

2. Have you been given an opportunity to read those Security Documents?

3. Have the Security Documents been fully explained to you by your solicitor?

4. Do you understand the effects of the Security Documents and the consequences to you if the Borrower defaults on its obligations to the Lender?

5. In particular, do you understand that if the Borrower fails to pay all of the moneys due to the Borrower to the Lender then the Lender will be entitled to call on you as Guarantor to recover the moneys due to it?

6. Was this Acknowledgement read and signed by you BEFORE you signed the Security Documents?

...

I confirm the accuracy of the answers to the above questions and acknowledge that the Lender will be relying on these answers in respect of giving the loan to THE VICTORIAN BOAT CLINIC PTY LTD."

The certificate of independent financial advice, meanwhile, required an independent accountant to sign and attest to the following:-

"1 I have been instructed by THE VICTORIAN BOAT CLINIC PTY LTD ACN 601 712 172 to explain the financial risks being assumed:-

(a) by executing the security documents in respect of the financial accommodation to be provided by the Lender which security documents are referred to in Item 1 of the Schedule below ('the Security');

(b) by the application of the said financial accommodation for the purposes referred to in Item 2 of the Schedule below.


2 Before the Security was executed by the Borrower, I explained the financial risk being assumed by executing the Security and by the application of the aforesaid financial accommodation in the manner stated in Item 2 of the Schedule.

3 To the best of my knowledge and belief and in my opinion the Borrower appears to understand the nature and extent of the financial risk which the Security places and the nature and extent of the financial risk which will be assumed by the application of the aforesaid financial accommodation in the manner stated in Item [2] of the Schedule.

4 I have been engaged by the Borrower in advising and have given this Certificate entirely independently of any other Borrower or Guarantor.

5 The Loan herein is required for business purposes."

The primary judge found that Mr Zourkas had presented the certificates to the appellant by handing over two sealed envelopes (one labelled "Accountant", the other labelled "Solicitor"), a business card for a solicitor, Mr Kiatos, and a phone number for an accountant, Mr Topalides. Mr Zourkas told the appellant to "take these documents, get them signed and bring them back"[26]. The Court of Appeal observed that it was clear from context that approval of the loans was conditional on the two certificates being duly signed and returned.

The appellant visited both Mr Kiatos and Mr Topalides that same day. Mr Kiatos (and not the appellant) completed and signed the certificate of independent legal advice, writing in answers to the list of questions directed to the appellant as guarantor. The appellant signed an acknowledgment on behalf of the company confirming the accuracy of those answers and that he had received independent legal advice.

With the documentation complete, the loans were settled, the mortgages were registered, and the Fingal property was purchased on 30 September 2015. Once the various fees and payments had been made, the appellant was left with a sum of $6,959. The appellant subsequently moved into the Fingal property with his son. He never carried on any boat repair business.

The first month's interest having been paid in advance by the funds received from the second loan, the appellant managed to sell some assets to pay off the second month's interest. However, on 30 December 2015, the company defaulted on the third month's interest payments[36]. The respondents commenced proceedings against the appellant, seeking to enforce the guarantee and their rights as mortgagees of the two Narre Warren properties and the Fingal property.

The primary judge

The primary judge found that the appellant laboured under circumstances of "special disadvantage". His Honour described the appellant's financial position as "bleak". Notably, in this regard, the Narre Warren properties were the appellant's only assets of any value. The primary judge also found that the appellant was "unsophisticated, naïve and had little financial nous". The primary judge observed that the appellant's demeanour at trial – at which he represented himself – indicated that he was "completely lost, totally unsophisticated, incompetent and vulnerable".

The primary judge found that Mr Jeruzalski "[did] not seek or want any further information about the guarantor or his or her personal or financial circumstances". Mr Jeruzalski's attitude in this regard conformed to the standard practice of AJ Lawyers of making no inquiries as to a borrower's capacity to repay the loan, and having no contact with borrowers save for written correspondence and documentation.

The primary judge found that Mr Jeruzalski knew that the loans were "a risky and dangerous undertaking for [the appellant]" because of the high interest rates, the risk to the appellant of the cost of forced sales, and the consequential impact of a default upon the appellant.

The primary judge did not accept that Mr Kiatos and Mr Topalides were truly independent sources of advice for the appellant.

The primary judge concluded that these findings demonstrated a "high level of moral obloquy" and "wilful blindness" as to the appellant's financial and personal circumstances

The Court of Appeal

The Court of Appeal concluded that the primary judge's reasons reflected an adverse view of asset‑based lending "as a concept" and concluded that this adverse view "overwhelmed ... his determination of the unconscionability issue"[50]. The Court of Appeal was not satisfied that Mr Jeruzalski had either actual or constructive knowledge of the appellant's desperate personal and financial circumstances.

Importantly in this regard, the Court of Appeal considered that Mr Jeruzalski was entitled to rely on the certificates of independent advice as showing that the appellant had consulted a solicitor and an accountant, and as to the truth of the matters stated therein. In their Honours' view, the certificates made it reasonable for Mr Jeruzalski to refrain from any further inquiry as to the appellant's circumstances; indeed, their Honours noted that, absent the certificates, there may have been sufficient knowledge on Mr Jeruzalski's part to "justify the serious finding that it was unconscionable for him to abstain from inquiry in all the circumstances". As to the primary judge's finding that the certificates did not reflect truly independent advice, the Court of Appeal held that there was no sufficient basis in the evidence for that inference.

The parties' contentions in this Court

In this Court, the appellant conceded that asset‑based lending is not necessarily unconscionable in itself, and focussed upon the circumstances of the system of asset‑based lending employed by the respondents and AJ Lawyers in this case.

The appellant submitted that the Court of Appeal attributed unwarranted significance to the certificates of independent advice. The appellant argued that the primary judge was entitled to infer that Mr Jeruzalski knew it was unlikely that the appellant had received truly independent advice. More broadly, the appellant argued that the Court of Appeal failed to have due regard to the findings made and inferences drawn by the primary judge as to Mr Jeruzalski's appreciation of the dangers confronting the appellant in taking the loans, particularly since the primary judge had relied on his impressions of the witnesses in making these findings.

The respondents argued that the only significant finding of the primary judge that was disregarded by the Court of Appeal was the finding to the effect that the certificates were not truly independent[59]. It was said that the Court of Appeal was justified in taking this course on the basis that there was no evidence to support the primary judge's inference.

Issues:-

a) Was the system of lending involving a law firm, acting through an intermediary, tainted by unconsciousnable conduct?

b) Whether the Respondents' agent had knowledge of Appellant's special disadvantage?

Consideration:-

Unconscionable conduct

In Kakavas v Crown Melbourne Ltd, this Court said:-

"[E]quitable intervention does not relieve a plaintiff from the consequences of improvident transactions conducted in the ordinary and undistinguished course of a lawful business. A plaintiff who voluntarily engages in risky business has never been able to call upon equitable principles to be redeemed from the coming home of risks inherent in the business. The plaintiff must be able to point to conduct on the part of the defendant, beyond the ordinary conduct of the business, which makes it just to require the defendant to restore the plaintiff to his or her previous position."

In Commercial Bank of Australia Ltd v Amadio, this Court held that unconscionability involves: a relationship that places one party at a "special disadvantage" vis‑à‑vis the other; knowledge of that special disadvantage by the stronger party; and unconscientious exploitation by the stronger party of the weaker party's disadvantage. But these considerations should not be understood as if they were to be addressed separately as if they were separate elements of a cause of action in tort. As Dixon CJ, McTiernan and Kitto JJ said in Jenyns v Public Curator (Qld)[63], in a passage approved by this Court in Kakavas and Thorne v Kennedy, the application of the equitable principles relating to unconscionable conduct:-

"calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the [vulnerable party]. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition. Indeed no better illustration could be found of Lord Stowell's generalisation concerning the administration of equity: 'A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case'." (citation omitted)

Special disadvantage

In this field of discourse, "special disadvantage" means something that "seriously affects the ability of the innocent party to make a judgment as to his [or her] own best interests". While the factors relevant to an assessment of special disadvantage have not been exhaustively listed, Fullagar J in Blomley v Ryan considered that special disadvantage may be inferred from "poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary". No particular factor is decisive, and it is usually a combination of circumstances that establishes an entitlement to equitable relief.

At all times, the appellant was incapable of understanding the risks involved in the transaction. He was unable to perform simple calculations, such as 10 per cent of $130,000. The primary judge observed that the very circumstance that the appellant was disposed to enter into such a transaction was evidence of his vulnerability. To say the least, the appellant's financial circumstances were "bleak".

It could not be, and was not, disputed by the respondents that the primary judge's findings as to the appellant's circumstances established that he was at a special disadvantage vis‑à‑vis the respondents. The outcome of the appeal to this Court turns on the extent of Mr Jeruzalski's knowledge of the appellant's circumstances and whether Mr Jeruzalski exploited that disadvantage so that the respondents' attempt to enforce their rights under the loans and mortgages was unconscionable.

Knowledge and exploitation

The inevitable outcome of the transaction was, objectively speaking, that the appellant's equity in his properties would be taken by the respondents by way of interest payments, including at default interest rates. The dangerous nature of the loans, obvious to Mr Jeruzalski but not to the appellant, was central to the question whether the appellant's special disadvantage had been exploited by the respondents.

The primary judge found that Mr Jeruzalski "should have known" that the appellant was bound to lose his equity in the Narre Warren properties. It may be accepted that his Honour's findings as to Mr Jeruzalski's state of mind did not rise to an unequivocal finding of actual knowledge on the part of Mr Jeruzalski that the appellant would inevitably lose his equity in his properties by taking these loans; but a finding in such terms was not essential to the appellant's case for relief. For a court of equity, the question is whether Mr Jeruzalski's appreciation of the appellant's special disadvantage was such as to amount to an exploitation of that disadvantage.

In Kakavas, this Court approved of the emphasis laid by Mason J in Amadio on the point that:

"the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his [or her] own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party."

A case for relief against an unconscionable attempt to enforce legal rights is established in this case because Mr Jeruzalski had sufficient appreciation of the appellant's vulnerability, and the disaster awaiting him under the mortgages, that his conduct in procuring the execution of the mortgages is justly described as unconscientious.

There can be no doubt that Mr Jeruzalski, on behalf of the respondents, had a lively appreciation of the likelihood that the loss of the appellant's equity in his properties would be suffered by reason of his financial naïveté and his lack of means. The findings of the primary judge pertaining to Mr Jeruzalski's state of knowledge were made after having had the benefit of hearing Mr Jeruzalski in person over several days. The primary judge's findings were "inevitably affected" by his collective impressions of Mr Jeruzalski as a witness and were not "glaringly improbable" or "contrary to compelling inferences". The Court of Appeal had no basis for disregarding those findings. Certainly the certificates were not a basis for doing so.

The certificates contained nothing to suggest that the appellant had actually turned his attention to the difference between the cost of his existing borrowings with Commonwealth Bank and the proposed loans, or to how he would service the proposed loans. The absence of even the most general reference in the certificates as to the existence and terms of the company's business plan or as to how the Fingal property zoning problem (of which Mr Jeruzalski was aware) might be resolved is eloquent of their artificiality.

In addition, given the bland boilerplate language of the certificates and the statement therein of the purpose of the loan (which Mr Jeruzalski must have known to be inaccurate), it is open to draw the inference that the certificates were mere "window dressing". A similar inference may be drawn in relation to the commercially unnecessary interposition of the company as borrower, a step calculated to prevent or impede scrutiny of the fairness of the transaction under the Code. The certificates might also be seen to have been a precautionary artifice designed to prevent an inference that the respondents were wilfully blind to the obvious danger to the appellant. But however one views the certificates, they could not negate Mr Jeruzalski's actual appreciation of the dangerous nature of the loans and the appellant's vulnerability to exploitation by the respondents[78]. Indeed, one might regard the deployment of such artifices in a context where the lender or its agent deliberately distances itself from evidence that must confirm the dangerous nature of the transaction for the borrower or its guarantor as evidence pointing to an exploitative state of mind on the part of the lender.

The primary judge found that Mr Jeruzalski suspected that the appellant did not receive truly independent advice from either Mr Kiatos or Mr Topalides. Mr Jeruzalski's evidence was that, "if [the appellant] or [the company] had no income, then, from his experience, a first‑tier bank would not have lent money to him", and further, that "his firm would not assist somebody like [the appellant] to obtain a bank loan"[80]. There was nothing in the evidence to suggest to Mr Jeruzalski that the appellant had an income that would enable him to refinance with a bank. The circumstances of Mr Jeruzalski's involvement with the appellant meant that what Mr Jeruzalski did know of the appellant's affairs made the prospect of the appellant's refinancing with a bank a forlorn hope.

Mr Jeruzalski, on behalf of the respondents, appreciated that the loans were a dangerous transaction from the appellant's point of view; but the prospect of obtaining the profit to be made by the taking of the appellant's equity by way of interest payments made the exploitation of the appellant's disadvantages good business for the respondents. The transaction in this case cannot be regarded as if it were, for example, a loan to an asset‑rich but income‑poor individual sought for the purposes of meeting a temporary liquidity problem. The transaction could not even be seen as a high‑risk loan to a person willing to gamble on the prospect of a rise in property values. Having regard to the unchallenged findings of fact by the primary judge, it is evident that Mr Jeruzalski, on behalf of the respondents, took the opportunity to exploit the appellant's lack of business acumen and meagre financial resources to deprive him of his equity in the Narre Warren properties.

Conclusion:-

Mr Jeruzalski's conduct on behalf of the respondents amounted to the unconscientious exploitation of the appellant's special disadvantage. The primary judge was right to hold that it was unconscionable for the respondents to insist upon their rights under the mortgages. That being so, it is unnecessary to consider whether the appellant was entitled to succeed pursuant to s 12CB of the ASIC Act.

Added a post 

Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41 (17 March 2022)

Intro:-

The appellant, Weijiang Chen, appeals from orders of a judge of the Federal Circuit Court of Australia (as it was then known) made on 21 July 2021. The primary judge dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) made on 17 October 2019, which affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), made on 17 April 2019 to refuse to grant the appellant a subclass 485 temporary graduate (post-study work) visa (the visa) pursuant to the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (Cth) (the Regulations).

Facts:-

In July 2014 the appellant, a citizen of China, arrived in Australia as the holder of a student visa.

The conviction(s)

In 2015, following an incident with his ex-girlfriend, the appellant was charged with common assault and stalking. A National Police Certificate dated 20 December 2018, produced by the criminal records section of the Australian Federal Police (AFP), records the following “court results” in relation to the appellant. It states that on 11 March 2015 at Downing Centre Local Court, the appellant was:

(a) fined $880 for the offence “Common Assault (Domestic Violence)”; and

(b) convicted and sentenced to a bond to be of good behaviour for 12 months for the offence “Stalk/Intimidate Intend Fear Physical Harm (Domestic)”.

The 2016, 2017 and 2018 student visa applications

The appellant’s unchallenged evidence is that his visa applications in 2016 and 2017 were prepared by a migration agent and then signed by him. He said that he told the migration agent about the fine and the bond imposed in 2015 and he was advised by the migration agent that there was no requirement to disclose that in the visa applications. Those applications did not disclose that he had any conviction(s).

In respect of the appellant’s 2018 student visa application, which he made on 26 February 2018, the appellant’s evidence is that to save money he completed the visa application himself and he copied the responses across from the applications previously made on his behalf by his former migration agent. The 2018 application is not in the materials before the Court but the delegate’s decision states that the appellant made the following declarations on the application form:-

Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?

No

...

The applicants declare that they: Have read and understood the information provided to them in this application.

Yes

Have provided complete and correct information in every detail on this form, and on any attachments to it.

Yes

Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any members of their family unit, may become unable to be granted a visa for a specified period of time.

Yes

The appellant was granted a student visa on 9 April 2018, which applied until 31 January 2019.

The 2019 visa application

Having completed his academic studies the appellant wished to obtain employment in Australia. He engaged a migration agent, MEK Consultancy (MEK) of Suite 402, Level 4, 167 Queen Street, Melbourne to assist him with obtaining the appropriate visa. The National Police Certificate dated 20 December 2018 is addressed to MEK and it is appropriate to infer that MEK applied to the AFP for it.

On 15 January 2019 the appellant applied for a subclass 485 visa. In response to a question on the visa application as to whether he had ever been convicted of an offence in any country, the appellant answered “Yes” and added the following detail: “bond to 12 months good behaviour”.

On 18 March 2019 the Department of Home Affairs wrote to the appellant outlining its view that he had provided false or misleading information in his 2018 visa application. The Department invited him to comment on the information which was suspected to be false or misleading, and to specify if there were any relevant compassionate or compelling circumstances under the Regulations to justify the grant of the visa.

The suspected false or misleading information in the 2018 visa application was that the appellant had declared that he had not been convicted of an offence in any country, and yet the National Police Certificate attached to the 2019 visa application “show[ed] two convictions dated 11 March 2015”. On that basis the Department suspected that the appellant had failed to declare his convictions in the 2018 visa application, and thus did not satisfy PIC 4020(1)(b).

On 10 April 2019 the appellant responded to the Department by letter and said:-

- After reading your letter, I realised that I had made an honest mistake when I applied for a student visa in 2018, but I did not intentionally conceal any information.

- When I supplied the required documents, I did not realise that the offence I had committed was considered a conviction. I thought that conviction meant going to prison, and I was just fined and given a 12 month good behaviour bond.

- I have read [PIC] 4020 and understand the serious consequences of concealing or providing false information, but I was absolutely not trying to provide any false information. My student applications in 2016 and 2017 were made by my previous agent and at that time, I talked with them about my court case in 2015 and they said it would not affect the application. Therefore, when I made the student application in 2018, I followed the previous applications and did not understand the real meaning of the wording when I ticked the box: “no conviction”. I had no intention of misleading the Department - I just misunderstood.

- The legal case in question occurred in 2015 and was a result of my own immaturity regarding romantic relationships. I had never been in a relationship before. Should it be required, I would be happy to explain the circumstances surrounding this regrettable incident and how I have learned from it. I am totally remorseful and am ashamed of my actions and it does not in any way reflect the person that I am today.

- I have attached some character references for your information to testify to my true character. I hope you can accept my explanation and feel able to process my application successfully.

The delegate’s decision

On 17 April 2019 the delegate decided to refuse the visa on the basis that the appellant did not satisfy PIC 4020 and therefore did not meet cl 485.216(3) of the Regulations. Clause 485.216 relevantly provides that the visa applicant must satisfy PIC 4020.

The delegate concluded that there was evidence before the Minister that the appellant had provided or caused to be provided false or misleading information in his 2018 student visa application, which visa the appellant was granted and held in the 12 months before he made the 2019 visa application, by stating that he had not been convicted of an offence in any country.

The delegate concluded that there was evidence before the Minister that the appellant had provided or caused to be provided false or misleading information in his 2018 student visa application, which visa the appellant was granted and held in the 12 months before he made the 2019 visa application, by stating that he had not been convicted of an offence in any country.

The Tribunal

On 2 May 2019 the appellant applied to the Tribunal for review of the delegate’s decision.

The Tribunal heard the application on 17 October 2019 and the appellant gave evidence and made submissions, assisted by a migration agent. The appellant sought to give his evidence through a Mandarin interpreter, but the Tribunal limited the use of the interpreter. The hearing took only about 35 minutes and at its conclusion the member affirmed the delegate’s decision and gave ex tempore reasons. On 31 October 2019 the Tribunal delivered written reasons.

The Tribunal found that the appellant provided false or misleading information in a material particular in his 2018 visa application. The false or misleading information was his declaration that he had not been convicted of any offence in any country when, in fact, he had been convicted in March 2015 of common assault and stalking (at [14]-[15]).

The Tribunal considered the appellant’s explanation for why he provided the false or misleading information; specifically, that he did not realise that he was “convicted” of any offence in March 2015, and he had no intention of misleading the Department. The Tribunal also said that the appellant made some “unusual claims” including that the appellant did not believe that in China he would receive the same penalty for his offending conduct, and the matter would instead have been sent to mediation, and that “[o]ne of the reasons for the [different] outcomes is cultural differences between Australia and China” (at [16]). The Tribunal expressed concern that the appellant sought to downplay the importance of his offending conduct, and said that it believed that his embarrassment about that conduct is one of the reasons why he did not declare any convictions in the 2018 visa application (at [17]).

The application to the Federal Circuit Court

27 On 20 November 2019 the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. On 25 March 2021 the appellant filed a Further Amended Application for Review which contained the following two grounds:-

1. A reasonable bystander might apprehend - from the Tribunal’s frequent interruptions, apparent closed mind to the evidence, scornfullness, exaggeration, observation that the applicant’s evidence was “unusual”, refusal to allow the applicant to use an interpreter, and failure to consider evidence favourable to the applicant that was before it - that the Tribunal might not have brought an open mind to its task.

2. The decision was irrational, unreasonable or [un]intelligible in that no reasonable decision-maker could have proceeded on the premise that the applicant had been convicted twice or that he had been convicted of common assault.
28 The appellant submitted that there were various indications from the manner in which the Tribunal member conducted the hearing that might result in a fair-minded lay observer reasonably apprehending that the member might not have brought an impartial mind to the review application. He contended that the indications were in the form of the member’s issue with the use of an interpreter; the regular interruptions of the appellant when he was giving evidence; the suggestion that the appellant was “playing a game” with the Tribunal in relation to his English language proficiency; the criticism of the appellant about his asserted late appointment of a migration agent; the use of an intimidating, loud and/or rude, and incredulous or belittling tone; the member’s disinterest in the appellant’s evidence and any evidence favourable to the appellant; the description of the appellant’s claims as “unusual”; and the exaggeration of the appellant’s 2015 offending conduct. The parties relied upon a table setting out particulars of the appellant’s allegations of conduct said to give rise to apprehended bias and the Minister’s responses to those allegations.

Issue:-

1. Whether the Court below erred by not concluding that the Tribunal’s decision was affected by apprehended bias.

Consideration:-

The applicable principles

There is no dispute between the parties as to the applicable principles in relation to this ground. The appellant submits that the primary judge erred in applying the test for a reasonable apprehension of bias. He contends that when the conduct of and the language used by the Tribunal member is considered as a whole and in context the Court ought to have concluded that the Tribunal’s decision was affected by apprehended bias.

Apprehended bias, if found, is an aspect of a denial of procedural fairness. A denial of procedural fairness on the part of an administrative decision-maker, such as the Tribunal, may result in jurisdictional error justifying an order that a decision be set aside: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [17] (Gaudron and Gummow JJ) and [169]-[170] (Hayne J).

The test for apprehended bias is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Tribunal member might not bring a fair, impartial and independent mind to the determination of the matter on its merits: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] (Allsop CJ, Kenny and Griffiths JJ) citing R v Watson; Ex parte Armstrong [1976] HCA 39; 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288; Ebner; Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283.

In ALA15 at [36] the Full Court explained that:-

...at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i) there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);

The rule in relation to apprehended bias applies both in the context of curial and non-curial decision-making. When applied outside the judicial system, the rule “must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings”; and “regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned”: Refugee Review Tribunal, Re: Ex parte H [2001] HCA 28; 179 ALR 425 at [5] (Gleeson CJ, Gaudron and Gummow JJ).

One must therefore take account of the fact that the Tribunal’s role is inquisitorial and that the Tribunal:

...must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.

: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [19] (Allsop J (as his Honour then was) with whom Moore and Tamberlin JJ agreed).
39 In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507, Hayne J (with whom Gleeson CJ and Gummow J agreed) explained that:-

(a) the rules in relation to bias through prejudgment are different in administrative decision-making as compared to judicial decision-making: at [180];

(b) specialised administrative tribunals can be expected to bring to the task of decision-making “a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications”. Such a decision-maker could be expected to build up “expertise” in matters such as country information; and “[o]ften information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment”: at [180];

(c) saying that a decision-maker has prejudged or will prejudge an issue, or that there is a real likelihood that a reasonable observer might reach that conclusion, involves the following contentions in respect of the decision-maker:
(i) they have an opinion on the relevant aspect of a matter in issue;

(ii) they will apply that opinion to the matter in the case; and

(iii) they “will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case”: at [185]; and

(d) having or expressing preconceived opinions does not constitute bias or a reasonable apprehension of bias, by pre-judgment, for it does not follow that the decision-maker will disregard the evidence: at [186].

The question as to a reasonable apprehension of bias is “one of possibility (real and not remote), not probability”: Ebner at [7]. Even so, as Kirby J explained in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; 206 CLR 128 at [90], the test:-

...is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached. Something more is required. Although the law interposes the imputed consideration of a fair-minded observer and speculates on whether that person “might” (rather than “would”) entertain a reasonable apprehension of bias in the particular case, the serious consequences that necessarily attend the affirmative conclusion oblige that it should be “firmly established”.

(Citations omitted.)

An allegation of apprehended bias against an administrative officer must be distinctly made and clearly proved. More must be shown than a mere predisposition of the Tribunal to a particular view and it is necessary to show that a decision-maker’s mind is not open to persuasion: Jia Legeng at [69] and [71]-[72] (Gleeson CJ and Gummow J).

The standard of appellate review

While the primary judge’s decision that the Tribunal member’s conduct did not give rise to a reasonable apprehension of bias was necessarily evaluative, his decision to dismiss the application was dictated by the application to the facts of the fixed rule prohibiting apprehended bias. It did not involve the exercise of discretion, in that it was not a matter in which the primary judge was allowed “some latitude as to the choice of decision to be made”: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [19] (Gleeson CJ Gaudron and Hayne JJ); see also Norbis v Norbis [1986] HCA 17; 161 CLR 513 at 518 (Mason and Deane J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [18] (Kiefel CJ), [43]-[49] (Gageler J), [85]-[87] (Nettle and Gordon JJ) and [144]-[147] (Edelman J).

Thus the primary judge’s decision does not attract the more deferential standard of appellate review applicable to an exercise of judicial discretion, as explained in House v The King [1936] HCA 40; 55 CLR 499 at 504-5 (Dixon (as his Honour then was), Evatt and McTiernan JJ). The question on appeal is whether the primary judge was right or wrong in his conclusion that the appellant had not established a reasonable apprehension of bias, not whether that conclusion was open to him in a House v The King sense.

The standard of appellate review is that referred to in Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551-522 (Gibbs CJ, Jacobs and Murphy JJ), in which the majority explained (at 552):

The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.
The appeal is by way of rehearing, and it requires a “real review” of the proceeding below: Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62; 278 FCR 1 at [413] (Bromwich, O’Callaghan and Wheelahan JJ) citing Fox v Percy [2003] HCA 22; 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ).

The primary judge’s conclusion on apprehended bias was based on his review of the audio recording and transcript of the Tribunal hearing, and we have the same evidence. This Court is in as good a position as the primary judge to determine on the evidence whether the appellant has established a reasonable apprehension of bias.

The appellant submits that the Tribunal member’s general tone and manner in dealing with him was often impatient, rude and bullying; he often raised his voice and was sometimes scornful. The appellant says that the member often interrupted him, generally when he was trying to give evidence helpful to his case: e.g. the interruptions at T8.05, T8.36, T10.26, T10.32 and T12.42. The Minister denies that the member’s general manner and tone was impatient, rude and bullying, and contends that the audio recording and transcript do not otherwise disclose that the member’s mind was not open to persuasion. The Minister says that the audio recording shows that the member and the appellant both spoke over one another, and argues that is a common occurrence during a hearing. The Minister also says that the member did not prevent or hinder the appellant from giving his evidence, and that the absence of any protest by the appellant is relevant to how the reasonable lay observer would reach a conclusion as to the manner in which the hearing was conducted.

While the appellant’s submissions sometimes overstate the position, having listened to the audio recording we are satisfied that at various points the Tribunal member’s tone and manner in questioning of the appellant was loud, aggressive and interrupting. He often raised his voice and was impatient and sometimes rude. He was, on occasion, scornful or incredulous as to the appellant’s evidence. He also showed disinterest in evidence which might tend to show that the appellant’s incorrect answer in the 2018 visa application was not purposefully false. The Tribunal member’s conduct also suggested that he was affronted by the appellant’s offending conduct and perceived lack of remorse.

The Tribunal’s inquisitorial role may involve robust and forthright testing of a visa applicant’s claims, and such testing will not of itself sustain a finding of apprehended bias: SZRUI at [24] (Flick J, with whom Allsop CJ agreed); and occasional displays of impatience and irritation or occasional sarcasm or rudeness on the part of the Tribunal do not generally establish disqualifying bias. Generally such behaviour simply forms part of the factual matrix in relation to which any question of apprehended bias is to be assessed, but in some cases such behaviour may show bias or give rise to a reasonable apprehension of bias: SZRUI at [91] (Robertson J with whom Allsop CJ agreed) citing Sarbjit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 at 10-11 (Lockhart J).

We have considered each of the instances of conduct by the Tribunal member on which the appellant relies, but our decision does not turn on a particular instance or instances. Rather, considering the Tribunal member’s conduct during the hearing in totality, and looking at the evidence cumulatively, we are satisfied that a fair-minded and appropriately informed lay observer might reasonably apprehend that the member might not bring an impartial mind to the question as to whether the appellant’s incorrect answer in his 2018 visa application was purposefully false. It is “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R v Watson at 259 (Barwick CJ, Gibbs and Mason JJ (as their Honours then were), and Stephen J) citing R v Sussex Justices; Ex parte McCarthy [1923] EWHC KB 1; [1924] 1 KB 256 at 259 (Lord Hewart CJ). What strikes us when listening to the audio recording is that the Tribunal member’s conduct in the hearing crossed the line articulated in Ebner and the other authorities to which we have referred. In our respectful view the primary judge erred in finding otherwise.

We now turn to address some of the specific instances of the Tribunal member’s conduct which the appellant relies upon, but reiterate that our conclusion does not turn on a particular instance or instances.

1) The use of an interpreter

First, the appellant submits that the Tribunal member began the hearing on a hostile note, unfairly accusing him of “playing games” by persisting with his request to use an interpreter. The transcript (T2.01-2.27) and audio recording show the following exchange at the commencement of the hearing:-

MEMBER: What do you mean “the legal level”? What’s your IELTS score – overall band score?

MR CHEN: Seven.

MEMBER: Seven. I wonder if you’re playing games with me, Mr Chen. Someone with an overall band score of seven has a good command of English, however, you want us to use an interpreter for everything, do you?

We accept that at different points in the hearing the Tribunal member allowed the interpreter to interpret questions for the appellant, and that the member did not insist upon the appellant not using the interpreter where it was necessary. We accept too that, by and large, the appellant displayed sufficient proficiency in English such that he did not require the assistance of an interpreter, and that on the occasions he sought assistance from an interpreter he was permitted to do so. Having said that, the transcript shows eight instances where the appellant required the assistance of an interpreter, and several other occasions where his evidence was somewhat garbled because of his difficulties with English.

It is important to keep in mind that the appellant’s proficiency in English (at least in 2015 when he was convicted and in 2018 when he made the incorrect declaration) was central in the application. The appellant accepted that his declaration in the 2018 visa application that he had not been convicted of an offence was incorrect. The question for the Tribunal was whether that incorrect answer was “purposefully false” such that PIC 4020 was not satisfied.

Plainly, the appellant was not saying that he could not speak English; he was just saying that he did not consider his English to be good enough to rely on in a legal proceeding, keeping in mind that obtaining a favourable decision from the Tribunal was very important to him. Additionally, there was no issue before the Tribunal as to whether the appellant’s English language proficiency was sufficient for a subclass 485 visa, yet the member used the appellant’s explanation about his limitations with English as a basis for suggesting to him that, “perhaps [he is] not eligible for a 485 visa”. That was unfair and, in the context of the hearing overall, suggestive that the member was set against the appellant from the outset.

The vice in this part of the Tribunal member’s conduct was not so much that he might appear to have had an adverse opinion about the appellant’s claim before the hearing began, but that he had that opinion and then at various further points in the hearing his conduct was such that a fair-minded observer might well infer that there was nothing the appellant could say that might change the member’s mind. As we further explain, at various points in the hearing the member’s impatience, interruptions, tone, questioning, and comments about the implausibility of the appellant not understanding the meaning of “conviction”, might lead a fair-minded observer to consider that the member might not be open to persuasion: see VFAB at [82].

2) Appointment of Migration Agent

Second, the appellant relies on the following exchange, which took place almost immediately after the exchange regarding the use of an interpreter:

MEMBER: ...I do have a question: why – when did you engage Mr Zhao to provide you with support here today?

MR CHEN: After the hearing notice

MEMBER: It looks like it was Tuesday, two days ago.

MR CHEN: Yes. On that day I sent the represented form to the ---

MEMBER: It makes it almost impossible for an agent, a lawyer, it doesn’t matter how good they are; if somebody says, “Can you represent me, I’ve got to go to the tribunal tomorrow or the next day”. Why would you wait so long?

MR CHEN: To be very frank I ---

MEMBER: I don’t want you to be anything other than what you swore you would be earlier; just be truthful.

The audio recording and transcript shows that the member went off on a tangent at this point by asking an irrelevant question as to when the appellant appointed a migration agent. The member then interrupted the appellant before he could respond and, by reference to the date on which the appointment form was lodged with the Tribunal, the member (wrongly) criticised the appellant for appointing his agent late, using a loud voice and an intimidating tone (T3.40). When the appellant gave evidence as to when he engaged the migration agent, the member interrupted him again and said in a critical tone, “[s]o you don’t do anything for two weeks” (T4.27). As the appellant made clear when he was given a chance, he had appointed the migration agent about one week after he received notice of the Tribunal hearing on 2 October 2019, but he did not notify the Tribunal of that appointment until a few days before the hearing (T3.36 and T4.29).

In endeavouring to answer the Tribunal’s irrelevant question, which was based on an incorrect assumption, as to why he had waited so long to appoint an agent, the appellant commenced by saying: “To be very frank...” (T3.44). It can be accepted that the appellant was giving sworn evidence; he was required to be truthful in his answers, and his use of that phrase was superfluous. But the use of such a phrase as an introduction to an explanation is commonplace in everyday speech. Without permitting the appellant to finish his explanation the member interrupted him again, using a loud, forceful and angry tone, and said: “I don’t want you to be anything other than what you swore you would be earlier, just be truthful” (T3.46).

The member’s gratuitous and unjustified criticism of the appellant’s preparation of his case was irrelevant and may have been suggestive of bias to the fair-minded observer. His interruption to sternly warn the appellant to be truthful suggests that the member thought that the appellant may not give honest evidence, notwithstanding that the appellant had not done or said anything prior to that exchange which could be said to have fairly raised any doubt as to his honesty. The member was required to have an impartial mind, open to persuasion, as to whether the appellant’s answer in the 2018 visa application was purposefully false. When considered together with the other matters to which we refer, this exchange might lead a fair-minded and appropriately informed lay observer to reasonably apprehend that the member might not bring an impartial mind to that central question

3) Tribunal's failure to explore whether the incorrect answer in the 2018 visa application was purposely false

Third, the appellant contends that the Tribunal member displayed little or no interest in exploring the central issue as to whether his incorrect answer in the 2018 visa application was purposely false; which also supports a finding that a fair-minded lay observer might reasonably apprehend that the Tribunal may not have had an open mind. On the appellant’s argument, the Tribunal member’s approach indicates that he had come to the hearing with his mind made up and he therefore thought it unnecessary to make proper enquiries.

The Minister submits that a claim of apprehended bias cannot be made out by reference to a critique of the Tribunal’s inquisitiveness. He argues that there is no complaint that the Tribunal failed to afford the appellant the type of hearing required under s 360 of the Act, and that the appellant was well aware of the issues on review before the Tribunal. The Minister contends that it was unnecessary (and not indicative of bias) for the Tribunal not to explain the meaning of “conviction” to the appellant, or to further explore the issue of purposeful falsity with him.

We take a different view. It is difficult to understand why the Tribunal member did not at any point ask the appellant why he made an incorrect declaration as to his conviction(s) in his 2018 visa application, whereas in his 2019 visa application he freely answered the same question correctly. The fact that the appellant freely provided the correct information in his 2019 visa application could be said to indicate that the incorrect declaration in his 2018 visa application did not involve purposeful falsity. However, the member did not explore that issue at all.

As is apparent, the appellant said that before he made his 2019 visa application, he “got the AFP from the police station” (which we take to be a reference to the National Police Certificate provided by the AFP), and he then knew that he had a conviction because that document described the “court result” in respect of the stalking offence as, “Convicted. Bond to be of good behaviour for 12 months”. The appellant said that, up to that point, he had thought conviction meant “going to the jail”. In 2019, he provided the correct answer to the question about having a conviction, using similar language to that in the National Police Certificate: “bond to 12 months good behaviour”.

The appellant’s evidence that he had declared the correct information as soon as he had it, was inconsistent with the Tribunal member’s apparent hypothesis that the appellant was “playing games” in relation to his proficiency in English. However, instead of engaging with the appellant’s explanation, the member merely asked, rhetorically, in a loud and forceful tone: “How can it be an innocent mistake; it’s a simple question...”

Further, rather than engaging with the appellant’s explanation, the Tribunal member instead asked the appellant to spell out the various academic courses he had completed. That the appellant had completed those courses was uncontroversial and the relevant certificates were in evidence. The member’s focus on those matters over those raised by the appellant in the hearing might suggest to the fair-minded observer that the Tribunal member was fixed on the idea that the question in the 2018 visa application was a simple one, and that the appellant’s proficiency in English was such that he could not have misunderstood it. That conclusion may have been open to the Tribunal on the evidence, but the member displayed disinterest in evidence which pointed in favour of the appellant having made an innocent mistake. That includes: (a) that the appellant volunteered his 2015 conviction in his 2019 visa application; (b) there was no evidence before the Tribunal that the appellant’s IELTS English test or his academic studies exposed the appellant to the meaning of the legal term “conviction”; and (c) as the audio recording shows, the appellant struggled to express himself clearly using formal language. In the hearing he required assistance by the interpreter on eight occasions, and that was in 2019, four years after the 2015 criminal proceeding in relation to which he claims he did not understand he had been “convicted”.

Having regard to the totality of the Tribunal member’s conduct in the hearing, and considering that conduct cumulatively as the observer would, we find that a fair-minded lay observer appropriately informed as to the hearing being conducted, might reasonably have apprehended that the Tribunal might not have brought an impartial mind to the decision as to whether the appellant’s incorrect declaration involved purposeful falsity. We have referred to the various matters which, in combination, have drawn us to that conclusion and there is a clear logical connection between those matters and the feared deviation from the Tribunal deciding the case on its merits.

We consider the Tribunal did not afford the appellant procedural fairness and thereby fell into jurisdictional error, justifying an order that the Tribunal decision be set aside. We respectfully consider the primary judge erred in not so concluding. In the main, that conclusion arises from our view of the way the Tribunal member conducted the hearing, rather than any specific criticism of the primary judge’s reasoning.

Conclusion:-

We have made orders to uphold the appeal, to set aside the Tribunal’s decision, and to remit the appellant’s visa application to the Tribunal, differently constituted, to be determined according to law.

Added a post 

Hobart International Airport Pty Ltd v Clarence City Council; Australia Pacific Airports (Launceston) Pty Ltd v Northern Midlands Council [2022] HCA 5 (9 March 2022)

Intro:-

This is an appeal from the Federal Court of Australia

Facts:-

The Hobart Airport site and the Launceston Airport site ("the Airports") are on Commonwealth land. They are not amenable to council rates or State land tax because s 114 of the Constitution prohibits States (without the consent of the Commonwealth Parliament) from imposing "any tax on property of any kind belonging to the Commonwealth".

The Clarence City Council administers the municipal area covering the eastern suburbs of Hobart and surrounding localities, including the Hobart Airport site. The Northern Midlands Council administers the municipal area extending from the south of Launceston to the Tasmanian central midlands, including the Launceston Airport site.

During the late 1990s and early 2000s, the Commonwealth entered into a number of long-term leases with airport operators as part of a project to privatise Australia's federal airports ("the privatisation project"). Legislation to facilitate the privatisation project was enacted. The Airports Act 1996 (Cth) "establish[ed] the regulatory arrangements to apply to the airports [then] owned and operated on behalf of the Commonwealth by the [FAC] ... following the leasing of those airports". The Airports (Transitional) Act 1996 (Cth) ("the Transitional Act") established "a framework [to give] effect to the Government's decision to lease all the Federal airports effectively as ongoing businesses with staff and management in place". The simplified outline of the Transitional Act provided:-

● This Act provides for the leasing of certain airports.

● Airport land and other airport assets will be transferred from the [FAC] to the Commonwealth.

● The Commonwealth will grant an airport lease to a company. The company is called an airport-lessee company.

● Immediately after the grant of the airport lease, the Commonwealth may transfer or lease certain assets to the airport-lessee company.

● Certain employees, assets, contracts and liabilities of the FAC will be transferred to the airport-lessee company."

At the time of the privatisation project, the Commonwealth sought to create a "level playing field" between the operators of newly privatised airports and their actual or potential competitors. The Commonwealth recognised that a competitive imbalance arose from the fact that the newly privatised airports were situated on Commonwealth land and, therefore, were not amenable to council rates or State land tax. Consistently with the Commonwealth's long-standing policy of making payments equivalent to rates in respect of federal airports, and in order to implement the principle of competitive neutrality agreed to in the CPA, the Commonwealth included in federal airport leases a term requiring lessees to pay to the relevant council a "fictional" or "notional" equivalent to the rates that would have been payable if the airport sites were not on Commonwealth land.

These appeals are concerned with the following leases ("the Leases") granted by the Commonwealth pursuant to s 22 of the Transitional Act:

(1) a lease between the Commonwealth and Hobart International Airport Pty Ltd ("HIAPL") (the operator of the Hobart Airport) for the Hobart Airport site dated 10 June 1998, which commenced on 11 June 1998, for a term of 50 years, with a 49‑year option to renew; and

(2) a lease between the Commonwealth and Australia Pacific Airports (Launceston) Pty Ltd ("APAL") (the operator of the Launceston Airport) for the Launceston Airport site dated 28 May 1998, which commenced on 29 May 1998, also for a term of 50 years, with a 49‑year option to renew.

The Leases contain materially similar terms. The dispute giving rise to these appeals concerns cl 26, headed "Rates and Land Tax and Taxes". Clause 26.1 provides that "[t]he Lessee must pay, on or before the due date, all Rates, Land Tax and Taxes without contribution from the Lessor". Clause 26.2, headed "Ex Gratia Payment in Lieu of Rates and Land Tax", creates a mechanism whereby, if council rates and taxes are not payable by HIAPL and APAL ("the Lessees") because the Airports are situated on land owned by the Commonwealth, the Lessees must pay certain amounts to the relevant "Governmental Authority" or the Commonwealth, as the case may be.

Most relevantly for present purposes, cl 26.2(a) provides:-

"Where Rates are not payable under sub-clause 26.1 because the Airport Site is owned by the Commonwealth, the Lessee must promptly pay to the relevant Governmental Authority such amount as may be notified to the Lessee by such Governmental Authority as being equivalent to the amount which would be payable for rates as if such rates were leviable or payable in respect of those parts of the Airport Site:-

(i) which are sub-leased to tenants; or

(ii) on which trading or financial operations are undertaken including but not limited to retail outlets and concessions, car parks and valet car parks, golf courses and turf farms, but excluding runways, taxiways, aprons, roads, vacant land, buffer zones and grass verges, and land identified in the airport Master Plan for these purposes, unless these areas are occupied by the Commonwealth or an authority constituted under Commonwealth law which is excluded from paying rates by Commonwealth policy or law. The Lessee must use all reasonable endeavours to enter into an agreement with the relevant Governmental Authority, body or person to make such payments." (emphasis added)

The Clarence City Council and the Northern Midlands Council ("the Councils"), established under the Local Government Act 1993 (Tas)[19], are respectively the relevant "Governmental Authority" for the Hobart Airport and the Launceston Airport. The Councils are not, and have never been, parties to the Leases.

Between 1998 and 2013, there was no issue about the operation of cl 26.2(a). The Lessees made payments to the Councils in accordance with independent valuations of the Airports in each financial year. In the 2014 financial year, the Valuer-General for Tasmania ("the Valuer‑General") undertook a re‑valuation of the Airports. The outcome was a significant increase in the quantum of the equivalent amount payable by the Lessees to the Councils under cl 26.2(a) of the Leases. The Lessees objected to the valuation on the bases that the Valuer-General incorrectly identified the portions of the Airports on which trading or financial operations were undertaken to be included for calculating the amount payable under cl 26.2(a) (for example, by including common user areas of the Airports, such as the check-in areas and departure lounges) and that the wrong methodology had been applied.

Protracted correspondence and meetings subsequently ensued between the Lessees, the Councils and the Commonwealth in an effort to resolve the disagreement. The Commonwealth engaged an independent valuer, Herron Todd White ("HTW"). In 2016, HTW provided a valuation report, which the Commonwealth considered accurately reflected the Lessees' obligations under cl 26.2(a). The Commonwealth told HIAPL that, because it had made payments to the Clarence City Council exceeding the amounts determined in the valuation report, it considered HIAPL had met its obligations under cl 26.2(a) for the years addressed by the valuation (namely, the 2014, 2015 and 2016 financial years). The Commonwealth told APAL that if it made payments to the Northern Midlands Council in line with the valuation report, it would consider APAL to have met its obligations under cl 26.2(a) for the 2014, 2015 and 2016 financial years, and APAL subsequently made payments accordingly.

In 2017, HTW provided a revised valuation report. HTW did not apply a value to the common user areas in the revised valuation. The Commonwealth informed the Lessees that "[g]oing forward", absent any formal agreement between the Councils and the Lessees, it would consider the Lessees compliant with their obligations under cl 26.2(a) if they made "payments in lieu of rates to [the Councils] on the basis of a valuation and methodology consistent with" the revised HTW valuation. The Commonwealth encouraged the Lessees to enter into negotiations with the Councils, "with a view to reaching mutually agreed arrangements around the payment of ex‑gratia rates for future years". Subsequently, for the purposes of cl 26.2(a), the Lessees paid the Councils on the basis of the valuations and methodology set out in HTW's revised valuation for the 2017 and 2018 financial years.

There was therefore no dispute between the parties to the Leases – the Commonwealth and the Lessees – about the operation of cl 26.2(a) or the Lessees' compliance with it. The Lessees and the Councils have not relevantly entered into any agreements about ex-gratia payments as contemplated by the final sentence of cl 26.2(a)[20].

The Councils, however, contended that the Valuer‑General had correctly identified the portions of each Airport on which trading or financial operations were undertaken in calculating the equivalent quantum under cl 26.2(a) and applied the correct methodology. The Councils, therefore, did not accept that the Lessees' payments to them of amounts calculated in accordance with HTW's valuations (and not the higher amounts based on the Valuer-General's valuation) satisfied the Lessees' obligations under cl 26.2(a).

The Councils then commenced proceedings in the Federal Court of Australia against the Commonwealth and the Lessees seeking, among other things, declaratory relief pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) with respect to the proper construction of cl 26.2(a) of the Leases and the Lessees' obligations to make payments pursuant to the Leases for the financial years for 2014/2015 to 2017/2018 inclusive.

Decisions below

The primary judge dismissed the Councils' applications on the basis that the Councils lacked standing to obtain the declaratory relief sought.

The Councils appealed to a Full Court of the Federal Court (Jagot, Kerr and Anderson JJ) on various grounds essentially directed to arguing that the Councils had standing to seek the declaratory relief in respect of the interpretation and application of the Leases. The Commonwealth's position was not materially different to that adopted by the Councils.

The Lessees contended that the primary judge correctly found that the Councils did not have standing. They also filed notices of contention arguing, in the alternative, that the primary judge's decision should be affirmed on three grounds: (1) the Councils' claims did not involve a justiciable controversy so as to constitute a "matter" for the purposes of Ch III of the Constitution in respect of which the Federal Court had jurisdiction; (2) the Federal Court did not have original jurisdiction as any "matter" did not arise under any law made by the Commonwealth Parliament within the meaning of s 39B(1A)(c) of the Judiciary Act 1903 (Cth); or (3) the Federal Court should decline to exercise its discretion to grant the relief sought by the Councils. The Full Court unanimously allowed the Councils' appeals, dismissed the Lessees' notices of contention and remitted the proceedings to the primary judge to determine whether the Councils should be granted the declaratory relief sought.

By grant of special leave, the Lessees appealed to this Court. Each of the Lessees contended that the proceeding to which it is a party does not involve a "matter" for the purposes of Ch III of the Constitution as there is no justiciable controversy to be quelled and the only rights, duties or liabilities to be established are the contractual rights, duties or liabilities of two contracting parties inter se between whom there is no dispute about the meaning or effect of the relevant lease. The Lessees also contended that the doctrine of privity of contract prevented the Councils from seeking declaratory relief regarding the interpretation or application of the Leases and that the Councils lacked standing.

The Councils filed notices of contention contending that if the doctrine of privity of contract ordinarily prevents a third party from seeking declaratory relief about the meaning or effect of a contract, then this case involves "exceptional circumstances" sufficient to establish standing or the Court should confine the doctrine so that it does not deny standing where the third party is a participant in respect of the contract.

Matter

"Matter" has two elements: "the subject matter itself as defined by reference to the heads of jurisdiction set out in [Ch] III [of the Constitution], and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy".

Subject matter

The Councils' claims for declaratory relief satisfy the first element – the subject matter requirement. The rights and obligations of the Commonwealth and the Lessees under the Leases owe their existence to a Commonwealth law, the Transitional Act, such that the claims "aris[e] under" a Commonwealth law within s 76(ii) of the Constitution.

The fact that the Commonwealth is a party to the proceedings, within s 75(iii) of the Constitution, does not provide a separate basis for satisfying the subject matter requirement. Section 39B(1A) of the Judiciary Act does not invest federal jurisdiction in the Federal Court in relation to all matters within s 75(iii), only those in which "the Commonwealth is seeking an injunction or a declaration". In these proceedings, the Commonwealth does not seek such relief. The Commonwealth's submission to the contrary is rejected.

Justiciable controversy

Central to both the notions of judicial power and "matter" within Ch III of the Constitution is the second element – the requirement that the dispute involves a "justiciable controversy". The established position remains that "there can be no matter within the meaning of [ss 75 and 76 of the Constitution] unless there is some immediate right, duty or liability to be established by the determination of the Court".

In these appeals, whether there is a justiciable controversy may be addressed by asking if the applicable principles permit the Councils to seek declaratory relief in relation to the dispute. That is, in these appeals (but not in all cases), the answer to the question of whether there is a justiciable controversy turns on whether the Councils have standing to have the dispute determined and to seek the declaratory relief sought.

The question in these appeals can be approached in this way because, in federal jurisdiction, "questions of 'standing' to seek equitable remedies such as those of declaration and injunction, [when they arise,] are subsumed within the constitutional requirement of a 'matter'". The "significance of standing to the existence of a matter for the purposes of Ch III" is, in essence, that there is no "matter" "unless there is a remedy available at the suit of the person instituting the proceedings in question". While "[a] negative answer to the question – is there a matter before the Court in which it has federal jurisdiction? – would render the question of the plaintiff's standing moot", "an affirmative answer to the question – is there a matter? – may not be sufficient to answer the question whether the plaintiff has standing". It may be that standing to seek relief ordinarily provides the "justiciable" aspect of the controversy, but it is unnecessary to determine whether, in every case where an applicant has "standing", there is necessarily a "justiciable controversy".

It is for those reasons that the particular question in these appeals is whether the Councils have standing. What is required to establish "standing" varies depending on the relief sought. Here, the Councils seek declaratory relief. The breadth of the jurisdiction to grant declaratory relief was considered by Gibbs J in Forster v Jododex Aust Pty Ltd. The question must be real, not theoretical. There must be a proper contradictor – someone presently existing who has a true interest to oppose the declaration sought. And the applicant must have a "sufficient" or "real" interest in obtaining the relief. There is no requirement that an applicant for declaratory relief have a cause of action in order to obtain it. Those principles are not exhaustive. These appeals turn on the nature and adequacy of the Councils' interest in the resolution of the dispute.

Sufficient or real interest

The requirement that an applicant for declaratory relief have a "sufficient" or "real" interest in obtaining the relief has work to do in both public and private law contexts. "However, the requirement applies differently to different sorts of controversies".

In respect of private rights, the general principle is clear: an applicant for declaratory relief will have a "sufficient" or "real" interest in obtaining relief where it pertains to declaring the existence of legally enforceable rights or liabilities of the applicant, including statutory rights. Here, the Councils did not assert that they had any legally enforceable contractual rights under the Leases or any statutory right which they could enforce and, at least in the proceedings below, they disavowed that they enjoyed the benefit of a contractual promise held on trust.

Although lack of privity is a factor relevant to standing and a reason for a court approaching the question of the standing of an outsider with considerable caution, an outsider to a contract may, "for other reasons"[ – what might be described as "exceptional circumstances" – have a "sufficient" or "real" interest to seek declaratory relief as to the meaning and effect of a contract between contracting parties. As the Full Court put it below, "there is reason to be concerned as to the potential for what might be described as unfounded intermeddling by a third party to a contract. But, in the context of declaratory relief, the solution to that concern is not the doctrine of privity of contract".

In Edwards v Santos Ltd[42], Heydon J referred to the decision of the Full Court of the Federal Court in Aussie Airlines Pty Ltd v Australian Airlines Ltd as an example of how a person (in that case, an outsider to a contract) can have standing to obtain a declaration and how a court can have jurisdiction to grant a declaration (relevantly, in relation to the contract). In Aussie Airlines, head leases of airport facilities required the head lessee to grant a sublease to any "new entrant to the domestic aviation industry". Aussie Airlines Pty Ltd claimed to be a "new entrant to the domestic aviation industry"[. The Full Court of the Federal Court held that Aussie Airlines had standing to obtain a declaration that it was a "new entrant to the domestic aviation industry" even though it was not found to have rights under the head lease enforceable against the head lessee. The Court held that the question of whether Aussie Airlines was a "new entrant to the domestic aviation industry" was not "hypothetical"; the resolution of the question was of "real practical importance" to Aussie Airlines; Aussie Airlines had a "real commercial interest" in the relief; the head lessee was "plainly a contradictor"; and there was "obviously a real controversy".

The declaratory relief sought (as to whether Aussie Airlines was a "new entrant to the domestic aviation industry" within the meaning of head leases to which it was not a party) was "of real practical importance" to Aussie Airlines because "[i]f negotiations commence[d] and result[ed] in the grant of subleases" there would be "far-reaching ramifications for the prospective business activities of Aussie Airlines". Aussie Airlines also had "a real commercial interest in obtaining or being refused the declaration" because its future business activities depended upon it obtaining subleases and becoming a new entrant.

Similarly, the Councils have a "sufficient" and "real" interest in seeking declaratory relief about the proper construction of cl 26.2(a) of the Leases. Under cl 26.2(a), the Councils are made active participants in the process established under that clause for the making of ex‑gratia payments by the Lessees to the Councils. That process contemplates that the Councils will notify the Lessees of the amount which is "equivalent to the amount which would be payable for rates as if such rates were leviable or payable" in respect of particular parts of the Airports, with the Lessees being obliged to use "all reasonable endeavours" to enter into an agreement with the Councils "to make" those ex‑gratia payments. In that sense, and to that extent, the Councils could not be described as "outsider[s]" to the Leases[. The proper construction of the words "trading or financial operations" in cl 26.2(a) is of real practical importance to the Councils, given their contemplated role under the Leases.

The Councils also have a real commercial interest in the relief. The meaning of the words "trading or financial operations" in cl 26.2(a) will bear upon the calculations made by the Councils as to the quantum of the amount notified by the Councils. That will have direct and far‑reaching ramifications for the financial position of the Councils.

In Santos, Heydon J regarded it as significant that the plaintiffs' success in obtaining the declaratory relief sought in that case "would advance their interests in the negotiations which the parties were contractually obliged to conduct". The same is true here. If the construction of cl 26.2(a) is determined in favour of the Councils, that would advance their interests for the purposes of future negotiations contemplated and required by cl 26.2(a). The Leases still have 26 years to run, with an option to renew.

These reasons should not be read as suggesting that possessing a mere commercial interest in obtaining declaratory relief about the meaning and effect of a contract to which an applicant for declaratory relief is not a party, on its own, would give rise to a "sufficient" or "real" interest. What makes this case exceptional is the combination of circumstances identified at [38]‑[40] above. Moreover, these reasons are only concerned with the Councils' claims for declaratory relief. The sufficiency of interest that might be required for a non-party to a contract to establish standing to obtain other forms of relief (for example, an injunction, damages or specific performance) does not arise in these appeals.

After the hearing, the Councils filed written submissions seeking to contend, for the first time, that they had standing to seek the declaratory relief sought because they enjoyed the benefit of a contractual promise under the Leases which was held on trust for them. As the Councils have standing to seek the declaratory relief for the reasons set out above, it is unnecessary to address that contention. The issues raised by the Councils' notices of contention also do not arise.

Contradictor

Finally, the fact that the Lessees are obliged under cl 26.2(a) of the Leases to use all reasonable endeavours to enter into an agreement with the Councils to make the ex‑gratia payments and ultimately are obliged to pay amounts to the Councils means that each Lessee is plainly a contradictor. The Lessees certainly do not wish to pay more than they are contractually bound to pay under cl 26.2(a) of the Leases – they each have a real interest in opposing the declaratory relief sought[, indeed they opposed the Councils' construction of cl 26.2(a) before the primary judge.

Conclusion:-

For those reasons, each proceeding involves a "matter". The appeals are dismissed with costs.

Added a post 

Nahi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 29 (8 March 2022)

Intro:-

This is an appeal from dismissal of application for judicial review of Administrative Appeals Tribunal’s decision to affirm decision not to revoke mandatory cancellation of visa on character grounds.

Facts:-

Mr Nahi is a citizen of New Zealand who has resided in Australia since 2010 when he was aged 14. Mr Nahi’s visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs pursuant to s 501(3A) of the Migration Act 1958 (Cth) following his conviction for possession of stolen or unlawfully obtained property for which he was sentenced to 14 months’ imprisonment.

The Administrative Appeals Tribunal affirmed that decision on 10 February 2021 and published reasons for its decision (Tribunal’s reasons). A subsequent application to the Federal Court of Australia for judicial review of the Tribunal’s decision was dismissed on 29 September 2021.

Legislative provisions

Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. It is not in dispute that Mr Nahi did not pass the character test in s 501(1) of the Migration Act, because of the operation of subs (6)(a), on the basis of subs (7)(c).

Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then Minister made Direction 79, which came into force on 28 February 2019, and which applied to the decision in respect of the applicant’s visa refusal. (I interpolate that Direction 79 has since been revoked and replaced with Direction 90 made on 8 March 2021 with effect from 15 April 2021).

Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. It is not in dispute that Mr Nahi did not pass the character test in s 501(1) of the Migration Act, because of the operation of subs (6)(a), on the basis of subs (7)(c).

Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then Minister made Direction 79, which came into force on 28 February 2019, and which applied to the decision in respect of the applicant’s visa refusal. (I interpolate that Direction 79 has since been revoked and replaced with Direction 90 made on 8 March 2021 with effect from 15 April 2021).

Issues:-

1) Whether learned primary judge erred by failing to find that the Second Respondent was under a duty to inquire after the best interests of the children affected by its decision?

2) Whether the learned primary judge erred by finding that any failure to inquire by the Second Respondent after the best interests of children affected by its decision was not material?

Ground 1

As to Ground One, Mr Nahi contends that the source of the Tribunal’s duty to inquire is s 499 of the Migration Act and Direction 79. In this respect, the primary judge said:

It might well be accepted that there was an obligation on the Tribunal to make an “obvious inquiry” such as “what was the relationship of the minor children to the applicant?” and “what is the evidence that the applicant relies upon with respect to the best interests of minor children?” I do not accept, however, that there was any obligation on the Tribunal to seek to supplement or independently investigate the evidence relied upon by the applicant for the best interests of the minor children consideration, particularly in circumstances where the Tribunal had expressly raised its concerns as to the scope of the material advanced by the applicant to his representative in the course of the hearing before it. The role of the Tribunal was to consider the representations made to it to determine whether the criteria in s 501CA(4) had been met: Taualii at [96] (Anderson J); Pennie at [14] (Davies, Derrington and Colvin JJ).

In Pennie v Minister for Home Affairs [2019] FCAFC 129, the Full Court held:-

"The primary judge correctly stated that it was for Mr Pennie to put before the Minister what he wanted the Minister to take into account and it was not for the Minister to undertake his own research or investigate for himself the likelihood or otherwise of Mr Pennie finding housing in Ireland, or obtaining social with fair or adequate healthcare. The Minister had no legal duty to make such inquiries for himself nor to make findings of fact as to whether Mr Pennie would be entitled to social and housing welfare if removed to Ireland: Maihoa at [41]-[46] (Rares and Robertson JJ). His legal duty was to address the representations made and to take them into account in considering whether to revoke the cancellation decision. A fair reading of the Minister’s reasons discloses that he both considered and weighed up the matters put to him by Mr Pennie."

(emphasis added)

Taualii v Minister for Home Affairs [2019] FCA 2013 and Pennie both involved decisions that had been made by the Minister personally. Mr Nahi submits that this distinction is sufficient to render the primary judge’s conclusion wrong and asserts that in this case, the Tribunal was bound to take into account the relevant considerations set out in Direction 79, not only the representations made by Mr Nahi. Mr Nahi further submits that under Direction 79 the best interests of the children was a critical matter in respect of which the Tribunal was bound to make an obvious inquiry and the obvious thing to do was for the Tribunal to question the witnesses relied upon by Mr Nahi. Implicit in the submission was a contention that the Tribunal was bound to take that course irrespective of the position adopted by his counsel before the Tribunal.

These submissions should not be accepted.

Firstly, the Tribunal clearly satisfied its obligation under Direction 79, by reference to the specific provisions of paragraph 13.2(4) of that Direction. Those factors have been stated above. In this case, they required an evaluation of matters such as the nature and duration of the relationship between each child and Mr Nahi, the extent to which he was likely to play a positive parental role, the likely effect of separation on the child and whether there are others who are likely to fulfil the parenting role. The inability of the Tribunal to make any informed assessment of the matters identified in paragraph 13.2(4) of Direction 79 because of ‘insufficient evidence’ (Tribunal’s reasons at [84]) does not negate that proposition.

The Tribunal considered the evidence before it relevant to that consideration. Such evidence was relatively scant. The lawyers acting for Mr Nahi advanced the following matters as to the best interests of minor children in three short paragraphs in a detailed statement of facts, issues and contentions:

- The Applicant’s [sic] has a niece and nephew who are the children of his eldest brother. The family are close knit and see one another on a weekly basis. Prior to his incarceration [the applicant] was involved in the life of his niece and they bonded. The impact upon their lives will result from the absence of an Uncle who is a key member of his family.

- The Applicant is additionally an active and loving God Father to [two godsons].

- The Applicant is close to his fiancé’s youngest brother...who is 6 years old. He has been close to [him] and they have lived together for long periods during [his] life.

A statement from Mr Nahi’s partner referred to Mr Nahi’s relationship with his niece, godchild, and his partner’s younger brother. A letter from Joshua Thompson referred to Mr Nahi as the godfather to Mr Thompson’s son and a subsequent statement from Mr Thompson referred to Mr Nahi having become the godfather to his second child. There was a letter from Connor Minas referring to Mr Nahi’s godson. During oral evidence, Mr Nahi referred to his relationship with his partner’s younger brother and the support he provides to him.

During the course of the hearing, the Deputy President stated that he could not see where there was any evidence that would assist the Tribunal in considering the factors specified in the direction. In substance, counsel appearing for Mr Nahi accepted that was the case and pointed to the limited very general evidence that had been given. The Deputy President observed in that exchange 'Yes, okay. As long as I am not overlooking anything'.

Plainly, the Tribunal was concerned to give notice that the material that had been put forward appeared to be insufficient. There was no suggestion by counsel that there might be further evidence or further inquiry. The submissions in the facts, issues and contentions are expressed in the most general of terms. When their insufficiency was exposed there was no suggestion that there was available further material that could be brought before the Tribunal. In those circumstances, the Tribunal was entitled to proceed on the basis that the material that was before the Tribunal was the extent of the available evidence concerning the best interests of the children, especially where the children were not Mr Nahi's own children nor was there any suggestion that they were children in respect of whom he fulfilled parental responsibilities.

The Tribunal recorded that none of the statements assisted the Tribunal in assessing the factors identified in paragraph 13.2(4) of Direction 79. The Tribunal was entitled to find, on the basis of the evidence that had been elicited, that this primary consideration did not weigh in favour of the revocation of the cancellation of Mr Nahi’s visa. By doing so, it had regard to the best interests of the children.

Secondly, Mr Nahi was represented before the Tribunal. In its reasons, the Tribunal quoted the exchange with counsel and then expressed the view that there was insufficient evidence to make any informed assessment of the factors that were required to be considered in relation to the interests of minor children (Tribunal’s reasons at [84]). There is no issue taken with that conclusion. Rather, it is said that the Tribunal failed to inquire into the best interests of the five children. That is simply not correct. The Tribunal did inquire. It pointed out in terms the factors to which the Tribunal was required to have regard in assessing the best interest of minor children. Its inquiry met with a response from counsel that provided no hint of any matter that might be the subject of further inquiry in addressing the factors specified in the direction. No adjournment was sought to adduce further evidence and only one witness was asked to elaborate on the written statement in relation to the interests of the minor children.

Therefore, this is not a case in which there was a failure by the Tribunal to make an obvious inquiry about a critical fact of the kind referred to in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203. The Tribunal made inquiry. There was no constructive failure to exercise jurisdiction.

Thirdly, the contention that the Tribunal should itself have made inquiries of the witnesses about matters relevant to the interests of the children in addition to raising its concerns with counsel and seeking clarification as to whether it was overlooking anything appears to be a claim that the Tribunal 'did not go far enough to discharge its obligation to conduct its review having regard to the interests of [the children]' being the possibility recognised in Uelese at [68].

In the circumstances of the present case where the issue was raised with counsel and there was nothing to suggest that there was significant evidence of a different character that might be given by those witnesses, the obligation was discharged. Whether there are obvious inquiries that should have been is a matter that must be determined in the context in which matters unfolded before the Tribunal. It is not explained why, given the outline of facts, issues and contentions that were provided before the hearing, the content of the witnesses' statements and the answers given by counsel to the questions by the Deputy President it might be thought that there was other more significant evidence that might be forthcoming if further questions were asked. Therefore, there is no basis for concluding that the Tribunal should have gone further than seeking clarification from counsel that there was nothing else beyond the way the case was put in contentions.

Ground 2

As to Ground Two, no criticism is made of the primary judge’s articulation of the principles relevant to materiality. Rather, the error is said to be in the application of those principles to Mr Nahi’s circumstances. Mr Nahi contends that the primary judge should have considered whether there were rational and reasonable choices open to the Tribunal as to the findings it could make in relation to the evidence adduced in the further affidavit material before the primary judge which in turn could realistically have resulted in a different decision. The further affidavit evidence was relevant to the second primary consideration, the best interests of minor children.

The circumstances of Mr Nahi’s offending were such as to lead the Tribunal to determine that the first primary consideration, the protection of the Australian community from criminal or other serious conduct, weighed moderately against revocation, and that the third primary consideration, the expectations of the Australian community, was given only minor weight against revocation of the decision. These considerations were not outweighed by the Tribunal’s finding that the strength, nature, and duration of the Mr Nahi’s ties to Australia weighed moderately in favour of revocation of the cancellation decision (Tribunal’s reasons at [122]). The weight accorded to various matters in Direction 79 is entirely a matter for the Tribunal.

Whether the decision that was in fact made could have been different had the further evidence been available, ‘falls to be determined as a matter of reasonable conjecture with the parameters set by the historical facts that have been determined on the balance of probabilities’: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [38]. The High Court went on to explain, at [39]:

"Bearing the overall onus of jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made...the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made..."

(Emphasis added)

The further affidavit evidence was provided by Ms Tran (Mr Nahi’s de facto partner), Mr Eugene Nahi (Mr Nahi’s father), Mrs Nahi (Mr Nahi’s mother), and Mr Nahi himself. Before the primary judge, there was no challenge to any of the evidence contained in the affidavits and counsel for the Minister invited this Court to accept that it was truthful evidence that would have been given before the Tribunal if the deponents had been asked the relevant questions. We have proceeded on that basis.

The primary judge described the further affidavit evidence as (Reasons at [70]),

"largely of a qualitative character and expressed in general terms. It revealed the extent of the emotional attachments that the applicant had established with the five children and the importance of their relationships with him, rather than the extent to which any of them depended on the applicant for their living expenses, accommodation, clothing, transport and day to day care."

It cannot be doubted that emotional attachments of themselves may be of great significance for the wellbeing of children. The interests of children may be substantially affected if they are separated from people with whom they have formed strong bonds, irrespective of whether those people also provide practical support. Evidence of that kind may be adduced to demonstrate the strength and duration of a relationship. It may be persuasive in the particular circumstances.

In the present case, particularly given the very young ages of the relevant children, it is a matter of note that further affidavit evidence was not elicited from any of the children’s parents in relation to their own child’s relationship with Mr Nahi. Such evidence as was given by the children’s parents was before the Tribunal. That evidence was limited to a statement from the father of Mr Nahi’s two godchildren who spoke of not wanting Mr Nahi to ‘miss out on them growing up’.

When considering the strength, nature and duration of Mr Nahi’s ties to Australia, the Tribunal said, (Tribunal’s reasons at [99]):

The Applicant’s SFIC (paras 54—61) claims the following ties that the Applicant has to Australia and the family and other links to Australian residents:

...
The Applicant has a number of significant Australian minors who are reliant upon his presence in their lives, he wants to be an example to them. He wants to show them that he is someone who has made mistakes but will demonstrate positive and meaningful change in his life. This claim is not supported by the evidence. There is certainly no evidence to support the claim that any minor is reliant on the Applicant’s presence in their life. As noted earlier, and as conceded by Ms Watts at the hearing (see [83] above), there was no evidence other than general statements of a desire to be supportive in the future in the Applicant’s Personal Circumstances Form ... to support his claim.
(Emphasis added)

Each of the further affidavits depose to the ages of the five children. The children’s respective dates of birth have some bearing on the weight to be accorded to some of the claims made in the affidavits when considering the counterfactual question of whether the decision of the Tribunal could have been different if the evidence therein had been before the Tribunal.

As at the date of the Tribunal’s Reasons (10 February 2021), Mr Nahi had been in custody since 29 August 2019. Three of the children had been born before Mr Nahi was incarcerated – his de facto partner’s brother, on 9 June 2014; his godson, on 28 March 2018, and his niece, on 15 January 2019. The remaining two children, a niece and another godson, were born on 15 May 2020 and 22 April 2020 respectively.

When it came to the evidence concerning the children, the terms of Direction 79 were specific as to the factors to which the Tribunal was to have regard. They were specified in paragraph 13.4. The following observations can be made concerning whether there was a realistic possibility that the evidence that would have been given could have resulted in a favourable decision for Mr Nahi having regard to the specified factors:

- the evidence as to the nature and duration of the relationships between Mr Nahi and the children shows that it has been relatively limited, with the longest relationship being of about five years duration pre-incarceration and two and a half years since his incarceration, with his de facto partner’s brother. Mr Nahi’s relationship to each child is non-parental and there was no evidence that any of the children’s primary residences were with Mr Nahi and his partner. In respect of the three older children, Mr Nahi has been incarcerated for periods representing a significant portion of their very young lives and he has had no contact with the two younger children (13.2(4)(a));

- there is no evidence that Mr Nahi is likely to play a parental role for any of these children, not being a parent of any of them (13.2(4)(b));

- there is no evidence that Mr Nahi’s conduct is likely to have a negative impact on any of the children (13.2(4)(c));

- there is some evidence from the father of Mr Nahi’s godson that the child will ‘miss out’ on having Mr Nahi around. There is further evidence, albeit not from the parents of either child, that at least the two eldest children may be affected by separation from Mr Nahi, although there is evidence that contact is presently maintained by FaceTime. ((13.2(4)(d));

- there are other persons who fulfil the parenting role in relation to each of the children (13.2(4)(e));

- there is no evidence of the views of the children which is unsurprising given their very young ages (13.2(4)(f));

- there is no suggestion of any abuse, neglect, physical or emotional trauma arising from Mr Nahi’s conduct (13.2(4)(g)-(h)).

The further affidavits do not depose to historical facts sufficient to sustain the requisite reasonable conjecture that the Tribunal could have made a different decision. They depose to Mr Nahi’s love for the children, his babysitting of the two eldest children, and to the fact that the children were ‘always happy’ when Mr Nahi was around. This evidence goes little further than that which was before the Tribunal and which was considered in its weighing of Mr Nahi’s ties to Australia, which were assessed to weigh moderately in favour of revocation of the decision to cancel Mr Nahi’s visa (Tribunal’s reasons at [120]).

In light of the ultimate finding by the Tribunal, and in light of the quite limited forensic utility of the further affidavit evidence, it is difficult to see that there is a realistic possibility that a different decision could have been made if that further evidence had been elicited by the Tribunal. The primary judge was correct to conclude that it could not have realistically resulted in a different decision by the Tribunal: MZAPC at [38].

Therefore, Ground Two also should not be upheld.

Conclusion:-

For these reasons, the appeal must be dismissed.

Added a post 

Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 (3 March 2022)

Intro:-

Mohamed Khalil is aggrieved by a decision of the Administrative Appeals Tribunal affirming a decision of the Minister to refuse to grant him a Partner (Temporary) (Class UK) visa (partner visa) on character grounds. He applied to this Court for judicial review but the primary judge dismissed his application. This is an appeal from that judgment.

Facts:-

On 9 November 2017, a delegate of the Minister refused to grant Mr Khalil a partner visa because the delegate was satisfied that Mr Khalil had a “substantial criminal record” and did not pass the character test for the purposes of ss 501(6)(a) and (7)(c) of the Migration Act 1958 (Cth) (the Act). That decision was affirmed by the Tribunal on review. Mr Khalil applied for judicial review of the Tribunal’s decision. That application was dismissed but, following an appeal to the Full Court, the Tribunal’s decision was quashed: Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 (Logan, Steward and Jackson JJ) (Khalil (No 1)).

On remittal, a differently constituted Tribunal again affirmed the delegate’s decision to refuse to grant Mr Khalil a partner visa: Khalil and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4592. Before this Tribunal Mr Khalil relied on additional documents, including a report of a clinical psychologist, Dr Indira Pattni, which included opinions on his risk of reoffending and the best interests of his children.

The legal framework

Section 501(1) confers a discretionary power on the Minister to refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test. Section 501(6) relevantly provides that a person does not pass the character test if that person has a “substantial criminal record”. That term is relevantly defined in subs (7)(c) to mean a person who has been “sentenced to a term of imprisonment of 12 months or more”.

Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions and powers. Section 499(2A) relevantly imposes an obligation on a person or body to comply with a direction made under s 499(1). At the time of the Tribunal’s decision, the relevant Ministerial direction was Direction No 79, entitled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).

Clause 8(1) of Direction 79 requires decision makers to “take into account the primary and other considerations relevant to the individual case”. The relevant primary considerations are contained in cl 11 and comprise the “protection of the Australian community from criminal or other serious conduct”, the “best interests of minor children in Australia”, and the “expectations of the Australian community”. The relevant “other considerations” are contained in cl 12. These include international non-refoulement obligations and the impact on family members, victims, and Australian business interests.

Clause 8(2) contains guidance on the weight to be afforded to certain evidence when applying these considerations. It states:-

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

In considering the “protection of the Australian community”, cl 11.1(1)(b) provides that a decision maker should take into account the “risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”. Clause 11.1.2(3) sets out the relevant matters that must be taken into account when assessing this risk. It states:-

(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
the duration of the intended stay in Australia.

In assessing the “best interests of the child”, cl 11.2(4) requires the decision maker to consider the following factors where relevant:-

a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b) The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;

c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;

d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

e) Whether there are other persons who already fulfil a parental role in relation to the child;

f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

Applications may be made to the Tribunal for review of a decision made under s 501: s 500(1)(b). Pursuant to ss 25 and 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Tribunal must “stand in the shoes” of the Minister and determine for itself the decision that should be made on the evidence before it, exercising the relevant powers and discretions conferred on the Minister: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [51] (Kiefel CJ, Keane and Nettle JJ).

The Tribunal is not bound by the rules of evidence but may inform itself of any matter as it thinks appropriate (AAT Act, s 33(1)(c)). The Tribunal is required to give oral or written reasons for its decision, and if it gives written reasons it must “include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based” (AAT Act, ss 43(2) and (2B)).

A decision of the Tribunal concerning a matter of this nature is a privative or purported privative clause decision of the Tribunal within the meaning of s 474 of the Act. As the Full Court explained in Khalil (No 1) at [43]:-

"The jurisdiction of the Federal Court to review decisions of the Tribunal in the present context is limited to jurisdictional error: Migration Act s 476A(2). Not every error of law is a jurisdictional error: see the recent analysis in Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 367 ALR 465 at [33]‑[40]. In a statutory decision making process, jurisdictional error is a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision maker purported to make it: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [24] (Kiefel CJ, Gageler and Keane JJ). “The question is always one of construction of the legislation: which breaches of a provision does the legislation, either expressly or, more commonly, impliedly, treat as depriving the decision maker of power?”: Hossain at [67] (Edelman J, Nettle J agreeing).

Furthermore, an error will not be jurisdictional unless it could realistically have led to a different outcome, a matter upon which the applicant bears the onus: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [4], [45] (Bell, Gageler and Keane JJ).

The Tribunal’s decision

Having found that Mr Khalil did not pass the character test on account of his “substantial criminal record”, the only issue before the Tribunal was whether to exercise the discretion in s 501(1) to refuse to grant the visa, having regard to the primary and other considerations in Direction 79.

In considering the “protection of the Australian community”, the Tribunal reviewed Mr Khalil’s criminal history and considered that his drug and domestic violence offences were serious and that any repetition of these offences would result in serious harm. It then considered whether there was a risk that Mr Khalil would reoffend in the future.

The Tribunal concluded that the “protection of the Australian community” weighed heavily in favour of exercising the discretion to refuse to grant the visa.

The Tribunal found that the “best interests of the child” consideration weighed against refusing the visa, but considered that there were other factors that diminished its overall weight. The Tribunal accepted that Mr Khalil would play a “positive role in the future with his children”, but observed that, as his relationship with his wife had broken down and she had taken steps to prevent Mr Khalil from seeing the children, the exact nature of that role was uncertain. The Tribunal also observed that Mr Khalil had had limited contact with his second child, who was born 22 days before he was taken into immigration detention. In addition, the Tribunal said at [43] of its reasons:

The applicant contended that his ex-wife is at risk of Huntington’s disease and therefore of limited capability to care for the children but I give this limited weight because, despite carrying the gene, the ex-wife has not been diagnosed with Huntington’s disease and there is no expert evidence as to when she may suffer from the disease in the future.
20 Finally, the Tribunal decided that the “expectations of the Australian community” weighed strongly in favour of refusing to grant the visa. The Tribunal noted that Mr Khalil agreed that neutral weight should be afforded to the remaining factors as he had made no submissions on them. Nonetheless the Tribunal considered that refusing the visa would have a negative impact on Mr Khalil’s ex-wife and afforded this factor positive weight in favour of granting the visa.

Having weighed these various factors in the balance, the Tribunal concluded that the considerations in favour of refusing the visa outweighed those against and so affirmed the decision under review.

The Tribunal found that the “best interests of the child” consideration weighed against refusing the visa, but considered that there were other factors that diminished its overall weight. The Tribunal accepted that Mr Khalil would play a “positive role in the future with his children”, but observed that, as his relationship with his wife had broken down and she had taken steps to prevent Mr Khalil from seeing the children, the exact nature of that role was uncertain. The Tribunal also observed that Mr Khalil had had limited contact with his second child, who was born 22 days before he was taken into immigration detention. In addition, the Tribunal said at [43] of its reasons:

The applicant contended that his ex-wife is at risk of Huntington’s disease and therefore of limited capability to care for the children but I give this limited weight because, despite carrying the gene, the ex-wife has not been diagnosed with Huntington’s disease and there is no expert evidence as to when she may suffer from the disease in the future.
20 Finally, the Tribunal decided that the “expectations of the Australian community” weighed strongly in favour of refusing to grant the visa. The Tribunal noted that Mr Khalil agreed that neutral weight should be afforded to the remaining factors as he had made no submissions on them. Nonetheless the Tribunal considered that refusing the visa would have a negative impact on Mr Khalil’s ex-wife and afforded this factor positive weight in favour of granting the visa.

Having weighed these various factors in the balance, the Tribunal concluded that the considerations in favour of refusing the visa outweighed those against and so affirmed the decision under review.

The reasons of the primary judge

The primary judge did not consider that the Tribunal erred in not accepting Dr Pattni’s opinion.

His Honour held that, although it could derive assistance from Dr Pattni’s opinion, the Tribunal was not bound to uncritically accept it, even in the absence of any contradictory medical evidence (at [34]–[35]). And he did not accept that the Tribunal’s rejection of Dr Pattni’s evidence involved an illogical conclusion that Mr Khalil did not have a remote chance of reoffending. This conclusion, his Honour found, was based on a number of other matters to which the Tribunal referred in its reasons (at [37]). Those matters included Mr Khalil’s lack of insight, his attempts to downplay the seriousness of the domestic violence offence, his refusal to accept that he was guilty of intending to sell and supply drugs, his lack of remorse, and the little regard he had shown for the law as demonstrated by his criminal history.

The appeal

Mr Khalil sought leave to replace the single ground contained in the notice of appeal with two new grounds. One of the grounds, inter alia read as follows:-

The learned primary judge erred in not finding that the Tribunal’s decision is affected by jurisdictional error because the Tribunal failed to consider important or significant evidence and/or failed to consider a relevant consideration and/or constructively failed to exercise its jurisdiction.

Particulars

(a) In considering the mandatory relevant consideration “The best interests of minor children in Australia”, the Tribunal failed to consider the evidence of Dr Pattni going to that issue.

(b) In considering the mandatory relevant consideration “The best interests of minor children in Australia”, the Tribunal failed to consider the evidence relating to the children’s mother’s susceptibility to Huntington’s Disease, and the evidence relating to the children’s susceptibility to Huntington’s Disease.

Issues:-

a) should leave be granted to raise a new ground?

b) did the primary judge err in in not finding that the Tribunal failed to consider the mandatory relevant consideration "The best interest of minor children in Australia"?

Consideration:-

a) should leave be granted to raise a new ground?

The Court’s power to grant leave must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and Rules: FCA Act, s 37M. That purpose is the facilitation of “the just resolution of disputes... according to law” and “as quickly, inexpensively and efficiently as possible”. It includes objectives such as the just determination of all proceedings before the Court; the efficient use of the Court’s judicial resources; the efficient disposal of the Court’s overall caseload; and the timeous disposal of all proceedings. Dealing with a point for the first time on appeal does not serve those objectives.

Without more, the fact that there has been a change of counsel is insufficient to justify a grant of leave: see, for example, BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 at [31] (Moshinsky, Steward and Wheelahan JJ); DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 at [31] (Davies, Moshinsky and Snaden JJ). Even before s 37M was enacted, the Court’s position was that leave to argue a point not raised before a primary judge should only be granted “if it is expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). In VUAX the Full Court observed at [48]:

The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

Requiring an appellant to show that it is expedient and in the interests of justice for an appellate court to grant leave “endeavours to strike an appropriate balance between securing the role of the court at first instance, protecting the integrity of the appellate process, and meeting the needs of justice as understood within the judicial process”: CVRZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 205 at [19] (Kenny, Davies and Banks-Smith JJ). The interests of justice include “the potential vindication of a just outcome” and the gravity of the consequences of the decision is a relevant consideration: MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [2] (Allsop CJ). It is true that appeals are not intended to provide an opportunity to conduct a second trial on a different basis than the first (see the discussion in Han v Minister for Home Affairs [2019] FCA 331 at [10]–[18] per Bromwich J and the authorities referred to there). Nevertheless, the predominant consideration must be the interests of justice. In the absence of prejudice to the respondent, the more meritorious the point, the more likely it is that leave will be granted notwithstanding the other considerations which favour its refusal.

Here, contrary to the Minister’s submission, an explanation has been proffered for raising the new point. But it is far from adequate. No evidence was adduced to suggest that the point was not raised below due to incompetence, negligence or even an oversight on the part of Mr Khalil’s former counsel. For all we know, it was the product of a forensic decision. After all, over the Minister’s submission to the contrary, the Tribunal found that Mr Khalil would play a positive role in his children’s lives and decided that it was in the best interests of the children that the discretion to grant the visa be exercised in his favour. On the other hand, for the reasons set out below, we are persuaded that the point is not of doubtful merit and, in the absence of any prejudice to the Minister, we consider it to be in the interests of justice to grant Mr Khalil leave to raise it.

b) Did the Tribunal fall into jurisdictional error by failing to consider Dr Pattni’s opinion concerning the effect of visa refusal on the children?

Mr Khalil submitted that the Tribunal failed to have regard to the evidence in Dr Pattni’s report concerning the risk of behavioural or emotional disorders in children where the father is incarcerated; the risks to the children in the present case owing to their mother’s medical condition; the risks posed by the absence of support from the extended family; the “unanimous research findings” about the internalisation of “at risk” behaviours where a mother is critically unwell and the father absent; and the “mental health burden and unfavourable consequences” of Mr Khalil’s deportation on the children.

The obligation of the Tribunal imposed by s 43(2B) of the AAT Act is to set out its findings on questions of fact it considers material, together with the evidence and other material on which those findings are based. That means that a court is generally entitled to infer that any matter not mentioned in the reasons “was not considered by the Tribunal to be material” to its review: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 346 (McHugh, Gummow and Hayne JJ). In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67; 309 ALD 67 (Katzmann, Griffiths and Wigney JJ) at [34] the Full Court observed that:-

"The fact that a matter is not referred to in the tribunal’s reasons, however, does not necessarily mean the matter was not considered by the tribunal at all: [Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594] at [31]. The tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the tribunal’s reasons does not necessarily mean that the material was overlooked. The tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the tribunal’s reasons, the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: [Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114] at [52]."

With respect to the first aspect, the subject of particular (a), three preliminary observations should be made.

First, the Tribunal did say in its reasons that it had taken Dr Pattni’s report into account (at [38]). Second, the Tribunal also concluded at [53] that “[n]ot having their father present in their lives will have a negative impact on the children”. Third, Dr Pattni did not take into account a number of matters mentioned by the Tribunal in its reasons, such as the older child having been present at the scene of Mr Khalil’s assault on his mother, the breakdown of Mr Khalil’s second marriage or the mother’s attempt to prevent Mr Khalil having access to the children (presumably because she was not told about them).

Read in context, however, the first statement related to Dr Pattni’s evidence touching on the risk of reoffending. The conclusion that the absence of Mr Khalil would have a negative impact on the children was made without reference to Dr Pattni’s opinion and there is nothing in the reasons to indicate that the Tribunal had regard to that opinion in reaching that conclusion. Finally, the matters mentioned by the Tribunal might well affect the weight the Tribunal might attach to Dr Pattni’s opinion, but they tell us nothing about whether the Tribunal considered the opinion at all.

Having regard to the nature of Mr Khalil’s claims and the findings and evidence set out in the Tribunal’s reasons, it can be readily inferred that, if Dr Pattni’s evidence on this subject had been considered, the Tribunal would have addressed it in its reasons, even if it were then to be rejected or given little or no weight. If consideration had been given to that evidence, at the very least one would expect a reference to her report in this context. After all, the report dealt with her opinion on two subjects, both primary considerations. Yet the Tribunal only adverted to her opinion on one of them. Even on a beneficial interpretation of the Tribunal’s decision read as a whole, the compelling inference is that the Tribunal overlooked the evidence.

The more difficult question is whether the failure to consider the evidence amounted to a jurisdictional error.

Dr Pattni’s opinion was to the following effect. It is well established that behavioural or emotional disorders in children are associated with “paternal incarceration” and the children are at greater risk if their father were to be deported (the likely outcome of refusing a visa on character grounds). The situation would become worse if their mother’s health deteriorated. There is little other family support having regard to the ill-health of the maternal grandmother and the fact that Mr Khalil’s family lives in Egypt. Dr Pattni went on to say:-

- There is an undisputed understanding in the research of child development that any trauma – especially separation anxiety and absence of critical parental figure puts the children at added risk of developmental problems.

- Given the complexity of the situation (noted above), these young boys are already predisposed to a wide array of risk factors for problem behaviours that emerges from the literature of several factual circumstances that can have an undisputed impact on their future development and in particular their mental health wellbeing.

- There are unanimous research findings that can support the internationalization of behavioural problems (at risk behaviours – such as aggressive and rule-breaking behaviour) with mothers who may be critically unwell and with the absence of the father.

- Undisputed evidence children in studies on deportation of the father highlight the associated mental health burden and the unfavourable consequences related to their children. Both the long term and short-term impact on mental health, social and economic has been established.

- The future of these children is of critical concern given the mother’s ability to meet the complex emotional, financial, social, and psychological needs given her medical condition.

- School participation may also negatively be impacted and experiences of mental health symptoms post-parental deportation (i.e., persistent crying, depression, sadness, anger, resentment).

The Minister submitted that the Tribunal accepted that Mr Khalil would play a positive role in his children’s lives and contended, in effect, that it was unnecessary for the Tribunal to repeat the detail of Dr Pattni’s evidence. The Minister argued that the finding of the Tribunal could not have been more favourable to Mr Khalil, particularly in the face of the submission he (the Minister) had made to the Tribunal that Mr Khalil was unlikely to play a positive parental role in the future because of the risk he might reoffend.

The difficulty with this submission is twofold. First, it did not grapple with the evidence itself, which was concerned with the potential impact on the children of an adverse decision — children who are already likely to have been traumatised by their separation from their father during his imprisonment and, one would infer, his absence in immigration detention. Second, while the Tribunal did find, contrary to the Minister’s submission, that Mr Khalil would play a positive role in his children’s future, the failure of the Tribunal to consider Dr Pattni’s opinion may have caused the Tribunal to put less weight on the best interests of the children than it might have done had it taken that opinion into account.

Of course, ignoring material relevant only to fact-finding does not of itself give rise to jurisdictional error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [97]. As we have already observed, it was not necessary for the Tribunal to refer to every piece of evidence. Moreover, there is a distinction between a failure by the Tribunal to advert to evidence which, if accepted, might have caused it to come to a different finding of fact and a failure by the Tribunal to address a contention which, if accepted, might establish the elements of a statutory claim: WAEE at [44]–[46].

In determining whether it is a jurisdictional error to fail to consider certain evidence, “the fundamental question must be the importance of the [evidence] to the exercise of the Tribunal’s function and thus the seriousness of any error”: SZRKT at [111] (Robertson J), endorsed by the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ). Moreover, “it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error”: SZRTK at [111].

In our opinion, the evidence of Dr Pattni concerning the potential harm to the children arising from indefinite separation from their father was not insubstantial or inconsequential evidence, even if it the Tribunal might ultimately have accorded it little weight. The Tribunal ought to have taken it into account because it was expert evidence going to a consideration to which the Tribunal was bound to have regard.

Whether or not the error is jurisdictional also depends on whether the evidence is material, that is to say, whether there is a realistic possibility the outcome could have been different had the Tribunal taken it into account: SZMTA at [4], [45] (Bell, Gageler and Keane JJ). In determining the answer to that question, the remarks made in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [174] (Kerr and Mortimer JJ, Allsop CJ agreeing at [1]) must be borne in mind:-

"This Court cannot substitute itself in the undertaking of such an evaluative task. In undertaking an assessment on materiality, where there are reasonable and rational choices to be made in fact finding, it is not appropriate for the supervising court to attempt to place itself in the mind of the Tribunal, and speculate about what would or could have changed a particular Tribunal’s mind. To do so brings the court into the merits of the decision. Rather, the supervising court must assume a Tribunal acting fairly and reasonably, with a mind open to persuasion, would give active and genuine consideration to all matters relevant to its review, including the matter which was erroneously omitted, or misconceived, and which caused it to exceed its jurisdiction. See generally Martincevic v Commonwealth [2007] FCAFC 164; 164 FCR 45 at [67]- [68], Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 at [70]; PQSM v Minister for Home Affairs [2020] FCAFC 125; 279 FCR 175 at [69]- [73]."

Although the Tribunal might ultimately have placed little weight on Dr Pattni’s evidence for any one of a number of reasons, “a Tribunal acting fairly and reasonably, with a mind open to persuasion”, could conceivably have come to a different conclusion if it had taken the evidence into account. That is because the evidence could have affected the weight it attached to the primary consideration of the best interests of the children and therefore the weight it attached to the other considerations: cf. Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 at [60] (Davies, Rangiah and Cheeseman JJ). By failing to take it into account, the Tribunal failed to complete its statutory task and so fell into jurisdictional error.

It follows that ground 2(a) of the amended notice of appeal is made out.

Conclusion

The appeal should be allowed on the new ground, which was not the subject of the application before the primary judge, that the Tribunal failed to take into account, as it should have, the evidence from Dr Pattni concerning the enhanced risk to the children of mental ill-health and behavioural problems that could ensue if Mr Khalil’s visa application were refused. A writ of certiorari should therefore be issued to quash the Tribunal’s decision and a writ of mandamus to require it, yet again, to consider Mr Khalil’s application according to law.

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Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 (2 March 2022)

Intro:-

This appeal is from a decision of the Federal Circuit Court (as it was then known) delivered in April 2021, which made orders dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal).

Facts:-

The Tribunal had earlier affirmed a decision of a delegate of the first respondent (Minister) to refuse the appellant’s (Ms Dait) application for a Student (Subclass 500) (Class TU) Visa.

Ms Dait’s application fell under s 65(1) of the Migration Act 1958 (Cth) (Act), which required the Minister to consider whether he was satisfied that the criteria prescribed by the Migration Regulations 1994 (Cth) (Regulations) had been satisfied. Ms Dait’s visa was cancelled, and that decision was upheld by the Tribunal, on the basis that Ms Dait did not satisfy the Genuine Temporary Entrant criterion in cl 500.212 of Sch 2 of the Regulations.

The Primary Judgment

Ms Dait sought judicial review on two grounds. Ground 1 alleged that the Tribunal failed to comply with the mandatory requirement under s 425 of the Act to “invite” Ms Dait to give evidence and present arguments in relation to the issues arising on review. Ground 2 alleged that the Tribunal misconstrued and misapplied cl 500.212 of the Regulations by considering subcl 500.212(a) of the Regulations, but failing to take into account and deliberate upon the mandatory criteria in respect of subcll 500.212(b) and 500.212(c). The primary judge dismissed both grounds of review.

Relevantly, in respect of Ground 2, the primary judge found that in the circumstances of the case the Tribunal was not required to refer expressly to subcll (b) and (c) in making a determination: PJ [21]. In reaching this conclusion, the primary judge considered himself bound by two decisions of this Court, namely Vidiyala v Minister for Home Affairs [2018] FCA 1973 and Sanjel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1966: PJ [19].

The relevant provision of the Regulations

Relevantly, cl 500.212 of Sch 2 of the Regulations is in the following terms:

500.212

The applicant is a genuine applicant for entry and stay as a student because:

(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i) the applicant’s circumstances; and

(ii) the applicant’s immigration history; and

(iii) if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

(iv) any other relevant matter; and


(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and


(c) of any other relevant matter.

As is evident from the primary judge’s reasons, cl 500.212 has been the subject of judicial consideration by this Court in a number of recent decisions. Given an understanding of these cases play a critical role in the resolution of the appeal, it is necessary to canvass them in some depth.

Issue:-

a) if a decision-maker is satisfied that a visa should not be granted on the basis that an applicant has failed to satisfy the criterion in subcl (a), must that decision-maker proceed to consider subcll (b) and (c)?

Consideration:-

A review of the authorities

Four cases merit attention in understanding the proper construction of cl 500.212. Each of them is dealt with below chronologically.

Vidiyala v Minister

s might be expected, Vidiyala v Minister for Home Affairs [2018] FCA 1973 concerned an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision by the Tribunal. The Tribunal affirmed a decision of a delegate of the Minister refusing to grant the applicant a visa on the ground that the applicant did not meet the requirements in cl 500.212. Relevantly, Perry J held that the Tribunal’s reasons were not infected by jurisdictional error because there was no need for the Tribunal to consider subcl (c) of the Regulations because the applicant did not satisfy subcl (a).

In reaching this conclusion, Perry J made the following remarks in respect of the operation of cl 500.212 (at [28]):-

"It is apparent from the use of the word “and” at the end of subclauses (a) and (b) of clause 500.212 that the appellant had to satisfy the Tribunal that each of the criteria in (a), (b) and (c) were met. It follows that once the Tribunal found that the criterion in subclause (a) was not met, the Tribunal was required to dismiss the visa application irrespective of whether the criteria in subclauses (b) and (c) were met. It follows that the FCC correctly held that the Tribunal was not required to consider the criteria in clause 500.212(b) and (c) before it could lawfully decide to affirm the delegate’s decision to refuse the application."

(Emphasis in original)
.
Her Honour therefore conceptualised cl 500.212 as what might be described as an “entire requirement”, and considered that this entire requirement would not be satisfied where an applicant failed to satisfy either subcl (a) or (b).

Inderjit v Minister

Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217; (2019) 272 FCR 528 also concerned an appeal from a decision of the Federal Circuit Court, upholding a decision by the Tribunal to affirm the Minister’s refusal to grant the applicants visas on the basis that they failed to satisfy cl 500.212.

Relevantly, in addressing the construction of cl 500.212, the Full Court (Rares, Burley and O’Bryan JJ) observed (at 535 [30]–[31]):-

"... if the legislation requires a decision-maker to have regard to more than one criterion or factor in making a decision, but gives no fixed weighting to any of them, then none of the factors has any presumptive or fixed weighting in relation to any or all of the other criteria.

The ultimate issue for decision under cl 500.212 is whether the “applicant is a genuine applicant for entry and stay as a student” because he or she meets each of the criteria in cl 500.212(a), (b) and (c). In considering each of criterion (a) and (b), the decision-maker must have regard to each of the prescribed factors for that criterion (so far as it may apply in the circumstances). The Minister, or decision-maker standing in his or her shoes, after considering a valid application for a visa, must grant it, by force of s 65(1)(a)(ii) of the Act, relevantly here, if he or she is satisfied that the criteria prescribed for the visa in the Act and or Regulations have been satisfied."

(Citation omitted).

It is not apparent that the Full Court in Inderjit was referred to, or considered, the reasoning in Vidiyala. However, the decisions are consistent. Both stand for the general proposition that a “genuine applicant” must satisfy the criteria in subcll (a), (b) and (c). The only difference is that Vidiyala articulates the next logical step in the inquiry; that is, subcll (b) and (c) should only be considered if an applicant fulfils the criterion in subcl (a).

Sanjel v Minister

In Sanjel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1966, one of the grounds of appeal advanced was that the primary judge erred in following the reasoning in Vidiyala.

Justice Thawley found (at [16]) that the Federal Circuit Court was bound to apply Vidiyala, and that his Honour should follow the decision given he was not persuaded it was “plainly wrong”: Sanjel (at [17]–[18]). His Honour also held (at [18]) that the statement of Perry J in Vidiyala at [28] (reproduced above at [10]) was “correct”, noting:

A decision-maker who affirmed a decision not to grant a visa on the basis that paragraph (a) of cl 500.212 had not been met would have exercised the jurisdiction entrusted to him or her and would not have failed to exercise or complete the exercise of jurisdiction entrusted to him or her merely by failing to consider whether the paragraphs (b) and (c) were also not met.
17 Once again, Sanjel reaffirms that the component parts of cl 500.212 must be seen as a combined whole.

Eros v Minister

Finally, cl 500.212 was recently considered by this Court in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061. There, the delegate and the Tribunal considered the applicant’s suitability for a visa under subcl (a) and, upon finding that the applicant did not meet the requirement in subcl (a), did not proceed to consider the applicant’s suitability under subcll (b) and (c).

In considering whether the primary judge erred by failing to find that the Tribunal and a delegate of the Minister misconstrued cl 500.212, the Chief Justice stated (at [8]–[9]) that:-

"It is important to focus on the words of cl 500.212. First, the chapeau contains a whole idea or conception: “a genuine applicant for entry and stay as a student”. This expresses a criterion that will involve value judgments about the applicant and his or her genuineness to enter and stay as a student. The last, emphasised, words were the subject of submissions and debate. They should not be disconnected from the text, structure and purpose of the whole clause.

The expression is followed by the word “because” and a list of various matters in subcll (a)(i)–(iv), (b)(i)–(ii) and (c), to which the decision-maker looks, overall, to come to a state of satisfaction about the contents of the chapeau. A plain reading of cl 500.212 leads to the conclusion that the satisfaction as to whether the applicant is a genuine applicant for entry and stay as a student is reached by reason of the particular criteria in subcll 500.212(a), (b) and (c), and not otherwise.

(Emphasis in original).

While the Chief Justice did not deal with Inderjit, Sanjel or Vidiyala, the above passages reinforce the status of cl 500.212 as a “complete package”.

The Chief Justice then went on to consider how the terms of comparable regulations for a previous Subclass 572 (Vocational Education and Training) Visa were construed. Against this backdrop, his Honour observed (at [14]–[15]):-

"The terms and structure of cl 500.212 require a careful treatment of three distinct criteria: the intention concerning length of stay, that is, that there is a genuine intention to stay temporarily: (a); that there is an intention to comply with any visa conditions: (b); and any other matter relevant to the subject matter, scope and purpose of the clause and grant of the underlying visa. These three considerations all feed in to form an evaluative judgment about whether the person is a genuine applicant for entry and stay as a student."

A close reading of cl 500.212

Like any construction inquiry, the Court must begin and end with the statutory text, read in its statutory context and having regard to its apparent purpose: Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 (at 519 [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ).

The starting point is s 65 of the Act. As Crennan, Bell, Gageler and Keane JJ explained in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179 (at 188–189 [34]):-

"The decision to be made by the Minister in performance of the duty imposed by s 65 is binary: the Minister is to do one or other of two mutually exclusive legally operative acts - to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) - depending on the existence of one or other of two mutually exclusive states of affairs (or “jurisdictional facts”) - the Minister’s satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister’s non-satisfaction of one or more of those matters."

(Citation omitted).

Hence the section is directed to satisfaction of the existence of the fact identified in the relevant criterion.

The presently relevant criterion, clause 500.212, requires satisfaction of a single state of affairs. It contains one sentence. The conjunction “because” connects the chapeau with subcl (a), implying a relationship of cause and effect: Pearce DC, Statutory Interpretation in Australia (9th ed, LexisNexis Australia, 2019) (at [12.11]). The conjunction “and” also marries subcll (a), (b) and (c), each of which is connected back to the chapeau by the combined conjunctive effect of the terms “because” and “and”. Further, each of subcll (a)(i)‑–(iv) and (b)(i)–(ii) is connected to its parent and, by extension, to the chapeau, by way of a colon or the conjunction “and”. This creates a waterfall effect, brought to a close by the full stop at the end of subcl (c). The combined effect of “because”, “and” and the use of colon unites each composite part of cl 500.212, giving rise to “a whole idea or conception: “a genuine applicant for entry and stay as a student””: Eros (at [8]). This reading is supported by the verb “is” in the chapeau, which encapsulates a single state of being.

In saying this, subcll (a), (b) and (c) nonetheless demand discrete inquiries as a matter of language and can be read and understood in isolation. Accordingly, satisfaction of cl 500.212 requires the cumulative satisfaction of discrete elements. Each of subcll (a), (b) and (c) are integral elements of the criterion. These elements are bookended by conjunctive devices, which reflect the need for the decision-maker to undertake a piecemeal analysis, and for the applicant to satisfy each step in that analysis in order to qualify as “a genuine applicant for entry and stay as a student”. If a decision-maker is not satisfied that an applicant meets subcl (a) or (b) alone, the decision-maker need not continue their inquiry. This is because an adverse finding in relation to either subcl (a) or (b) forecloses any possibility of a favourable outcome.

Reconciling the authorities

In summary, the authorities may be distilled into the following four mutually inclusive propositions:

(1) An applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 of the Regulations if they satisfy subcll (a) and (b), in the light of “any other relevant matter” pursuant to subcl (c): Inderjit (at 535 [31]); Eros (at [8]–[9]); Sanjel (at [18]).

(2) Subclauses (a), (b) and (c) address separate matters and require separate analyses: Eros (at [14]–[15]); Vidiyala (at [28]).

(3) It follows that if an applicant fulfils the criterion in subcl (a), a decision-maker must proceed to subcl (b) in order to exercise their jurisdiction properly: Eros (at [22], [30]–[33]).

(4) An applicant is not a genuine applicant for entry and stay as a student if they fail to satisfy subcl (a), regardless of their satisfaction of subcl (b), and vice versa: Sanjel (at [18]); Vidiyala (at [28]). If a decision-maker is satisfied that an applicant does not meet the criterion in either subcl (a) or (b), they need not proceed further. The decision-making process is complete because the applicant has failed to establish an essential element of the “whole idea or conception” contained in cl 500.212: Eros (at [8]).

Conclusion:-

The primary judge neither misconstrued nor misapplied cl 500.212 of Sch 2 of the Regulations. The appeal must be dismissed with costs.

Added a post 

Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 22 (1 March 2022)

Intro:-

This is an appeal from a decision of the Federal Court of Australia (FCA): Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 825. In that decision, the primary judge dismissed with costs the Appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the First Respondent (the Minister) not to revoke the cancellation of the Appellant’s class TY subclass 444 Special Category (Temporary) visa (visa) under s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act): Pearson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3527 (15 September 2020).

The Appellant seeks orders that the decision of the primary judge be set aside and in lieu thereof, an order be made that the decision of the Tribunal be quashed and a writ of mandamus issue requiring the Tribunal to determine her application according to law. She also seeks costs.

Facts:-

On 17 July 2019, the Appellant’s visa was cancelled under s 501(3A) of the Migration Act (cancellation decision). The Minister was satisfied, on the basis of a National Criminal History check released on 27 March 2019, that the Appellant did not pass the character test because she had a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(c) of the Migration Act and was serving a sentence of full-time imprisonment.

The Appellant made representations, and by letter dated 24 June 2020 was notified that a delegate of the Minister had determined not to revoke the cancellation decision (non-revocation decision). The delegate was not satisfied that the Appellant passed the character test, and was not satisfied that there was another reason why the original decision should be revoked.

The Appellant lodged an appeal with the Tribunal on 2 July 2020. On 15 September 2020, the Tribunal affirmed the non-revocation decision.

The Appellant’s application to the FCA for judicial review was accepted for filing on 22 October 2020. The hearing proceeded on 17 March 2021. The application was dismissed by orders made on 22 July 2021 (FCA Decision).

The Appellant filed her notice of appeal from the decision of the primary judge on 19 August 2021. It proceeded to hearing before this Court on 10 February 2022.

The Tribunal's Decision

The Appellant sought before the Tribunal a review of the non-revocation decision.

Before the Tribunal, the central issue was whether it was satisfied as required by s 501CA(4)(b) of the Migration Act: namely, whether there is another reason the decision to cancel the visa should be revoked. As the Appellant had been sentenced to a term of imprisonment of four years and two months, it was not in dispute that she does not meet the character test.

The Tribunal considered the criteria in Direction No. 79 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 79) as required by s 499 of the Migration Act. Having undertaken that exercise, the Tribunal affirmed the non-revocation decision and concluded:-

131. Two of the Primary Considerations; the protection of the community and the expectations of the community weigh against revoking the cancellation of Ms Pearson’s visa, with the expectation of the community weighing heavily against revoking the cancellation of the visa.

132. The best interests of the child weigh slightly in favour of revoking the cancellation of her visa.

133. Of the Other Considerations, Ms Pearson’s ties to Australia and the impediments to her returning to New Zealand weigh slightly in favour of revoking the cancellation.

134. Primary Considerations are generally to be given greater weight than the Other Considerations, and the Tribunal sees no reason to depart from this in the circumstances of this case. As a result, the Tribal [sic] affirms the decision not to revoke the cancellation of Ms Pearson’s visa.

The Primary Judge's decision

By an amended notice of appeal, accepted for filing at the commencement of the hearing, the Appellant’s ground of appeal is in the following terms:-

1. The learned primary judge erred in finding that the Tribunal’s failure to consider an express representation or claim made by the appellant in respect of her two pet dogs was not material to the decision.

Particulars

(a) The Tribunal failed to consider an express representation or claim made by the appellant and supported by probative evidence, being her claim in respect of her separation from her two pet dogs.

(b) The Honourable Markovic J accepted that the Tribunal failed to consider the relevant claim or representation but ought to have found that the Tribunal’s failure was material and amounted to jurisdictional error.

In considering that ground, the primary judge summarised the Appellant’s core contention:-

85. By this ground Ms Pearson contends that the Tribunal failed to consider an express representation or claim she had made which was supported by probative evidence. That is, that separation from her two pet dogs, Oscar and Walter, was another consideration to be taken into account in the decision whether to revoke the Cancellation Decision.

The primary judge then considered the parties’ submissions. The primary judge noted that the Appellant’s contention was that the evidence before the Tribunal was “replete with references to the two dogs”, and “by their omission from the Tribunal’s decision record, there is no meaningful consideration, let alone any active intellectual engagement by it, with respect to Oscar and Walter”: [87]. The primary judge also identified the Appellant’s alternative submission that “it ought to be inferred from the Tribunal’s failure to refer to evidence about Oscar and Walter in its reasons for decision that it failed to consider that material”.

In summarising the Minister’s position, the primary judge identified the key submission as being that “there is no necessary inference that Ms Pearson’s evidence about her dogs was overlooked by the Tribunal, as opposed to regarded as of little significance”, and, in the alternative, “even if the Tribunal had overlooked that evidence, it was insignificant and not material to the Tribunal’s decision”.

The primary judge then observed:-

"The first issue that arises is whether the Tribunal in fact overlooked the evidence concerning the two dogs, as Ms Pearson contends, or whether an inference can be drawn that the Tribunal took the material into account but considered that the claim was not sufficiently significant to require the Tribunal to refer to it expressly."

The primary judge set out the relevant principles at [93]–[95]. Her Honour acknowledged the concession by the Appellant that she did not make an express claim or submission before the Tribunal as regards her being separated from her two dogs, and turned to the question of whether representations made by the Appellant “were sufficiently significant or relevant to require the Tribunal to expressly consider them as part of its consideration of the impediments to Ms Pearson’s removal or whether the inference urged by the Minister can be drawn”: [97]. The primary judge then reasoned as follows:-

"I am satisfied that the impact of separation from Walter and Oscar was a sufficiently clearly articulated claim. As I have already observed, and as demonstrated by the matters set out at [97] above, the fact of ownership of the two dogs, that she considered them her family and that she would be upset by her separation from them were referred to in parts of the evidence that was before the Tribunal. The material was not vague or fleeting. The same matters, namely Ms Pearson’s connection to her two dogs and the impact of removal from them, was raised by a number of different witnesses who had observed Ms Pearson as well as, significantly, in Ms North’s report and Ms Pearson’s own statement. The question of separation from Oscar and Walter went to the issue of impediments to removal from Australia and whether there was another reason to revoke the Cancellation Decision. The Tribunal ought to have both considered and addressed that claim. It may have been open for the Tribunal to find that Ms Pearson could have arranged to have the dogs transported to New Zealand but that was a matter about which the Tribunal should have made a finding by reference to the available evidence.

I would not infer that the Tribunal considered the material and took it into account but formed the view that it lacked sufficient significance or relevance such that it was not required to refer to it in its reasons. Rather, the fact that the representations, which were both sufficiently significant in the context of all of the representations made in support of revocation and made with sufficient clarity, were not referred to and addressed in the Tribunal’s decision record at all leads me to draw the contrary inference. That is, that the Tribunal did not consider the material. Unlike its consideration of risk to the Australian community (see [75]-[83] above), the Tribunal did not refer to the claim about the two dogs at all in its reasons, as distinct from merely omitting reference to specific material relating to that claim. No inference of the kind drawn in relation to ground 3 can be drawn here."

Having concluded that the Tribunal did not consider the Appellant’s claims as regards her two dogs, the primary judge then addressed the question of materiality, namely whether the failure by the Tribunal to consider the claim about her two dogs was material to its decision not to revoke the cancellation decision. Her Honour summarised the Appellant’s contention in this regard as being that:-

" ... her relationship with her dogs was not of marginal consideration: it was a claim properly made in her representations to the Department; was treated as an impediment to her return by the delegate; and is on par with the inability to transport her computer equipment and her relationship with Mr Farrow and her friends as a matter to be taken into account and which could affect the outcome."

In her consideration of materiality, the primary judge relied on MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 (MZAPC) at [102]–[103] (Kiefel CJ, Gageler, Keane and Gleeson JJ). Her Honour correctly understood that she was required to resolve the factual hypothetical; in this case whether the failure of the Tribunal to consider the issue deprived the Appellant of the “realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred”: MZAPC at [2].

In applying those principles, the primary judge reasoned at [104]–[105] that the claimed impediments to removal were considered by the Tribunal as weighing slightly in favour of revoking the cancellation decision, and in that context the matters expressly relied upon were “of much higher priority” than the relationship of the Appellant with her two dogs. This led her Honour to conclude at [106] that the Appellant had failed to establish “on the balance of probabilities that a different conclusion could have been reached in relation to the impediments to removal”. Accordingly, the primary judge held that the failure of the Tribunal to mention the impact of separation from her two dogs was not a material error.

Appellant's Submissions

The Appellant submits that the primary judge considered the totality of her representations before the Tribunal, accepted that the Appellant had a close bond with her two dogs and correctly held that the impact on her of separation from her two dogs was a sufficiently clearly articulated claim.

As regards the Minister’s notice of contention and in the course of oral submissions, Counsel for the Appellant, Ms Zhou, did not dispute the general proposition that “a Tribunal does not need to specifically mention every item of evidence or every submission put to it”: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 (Applicant WAEE) at [46]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320; [2018] FCAFC 151 at [48]–[49]. However, Counsel for the Appellant submitted that the Minister’s contention should be rejected on the basis that “[t]he complete absence of any reasoning at all ... from the Tribunal about a matter that was clearly articulated leads more logically and more probably to the inference that it was not considered.”

On the ground of appeal, the Appellant submitted that the primary judge erred in not resolving the materiality question in her favour, emphasising in particular that the materiality test sets a “low bar” by reference to DMQ18 v Minister for Home Affairs (2020) 278 FCR 529; [2020] FCAFC 110 at [113]–[114]. The gravamen of the Appellant’s submission was that her representations made to the Minister, as in evidence before the Tribunal, were not of marginal significance and were directly relevant to the extent of impediments she may suffer in the event of removal. As the Tribunal gave no consideration to the relationship between the Appellant and her two dogs together with the claimed impact upon her mental health that would result from separation, the Appellant contended that the primary judge wrongly concluded that she had not been deprived of a realistic possibility of a different outcome.

Minister’s Submissions

In the Minister’s written outline dated 3 February 2022, Counsel for the Minister, Mr Reilly, submitted that “her Honour’s conclusion that the Tribunal has entirely overlooked the Appellant’s claim about her dogs is not the more likely inference” and continued:

23. ... As submitted to her Honour by the Minister, it is not apparent that the appellant could not arrange to have her dogs sent to New Zealand if she wished: Ms North’s report only reported the appellant as saying that this was “unlikely...due to financial constraints”, but this is speculative in the absence of the cost being identified. Given the appellant was already separated from her dogs due to being in prison (and subsequently immigration detention) since 12 October 2018, and did not rely on separation from them in her detailed submissions to the Tribunal, it is understandable that the Tribunal does not expressly mention them. There is no necessary inference that her evidence about her dogs has been overlooked by the Tribunal, as opposed to regarded as of little significance. The Tribunal did not need to specifically mention every item of evidence or every submission put to it, or provide a “line by line” refutation of the appellant’s claims: see MHA v Buadromo (2018) 267 FCR 320 at [48-49]; Navoto v MHA [2019] FCAFC 135 at [88].

On the question of materiality, the Minister in substance adopted the reasoning of the primary judge.

Issues:-

Accordingly, before the Court for consideration is:

(1) the Appellant’s notice of appeal challenging the finding of the primary judge that the failure of the Tribunal to consider the Appellant’s claim regarding her separation from her two dogs was not material to the Tribunal’s decision to not revoke the cancellation decision; and

(2) the Minister’s notice of contention that the decision of the primary judge should be affirmed but on grounds other than those relied on by the primary judge, namely that the Tribunal did not overlook the Appellant’s representation or claim regarding her separation from her two dogs.

In circumstances where the acceptance by the Court of the Minister’s contention would dispose of the need to make a finding as to the question of materiality, it is convenient to first deal with that issue.

Consideration:-

In support of the notice of contention, Mr Reilly for the Minister in oral argument correctly observed that the Appellant was legally represented before the Tribunal and framed her case in accordance with a detailed Statement of Facts, Issues and Contentions dated 26 August 2020 (the Appellant’s SFIC). The Appellant’s SFIC did not mention her relationship with her dogs and did not assert any psychological impact that may occur as the result of separation from her dogs. Nor were any claims to that effect advanced in oral submissions before the Tribunal. In short compass, Mr Reilly submitted that:-

"[t]he preferable inference, we say, is that it was simply such a minor matter by the time the matter had been argued before the Tribunal that the preferable inference is just the Tribunal didn’t think it necessary to specifically mention it."

Importantly, counsel for the Minister in oral argument confirmed that the notice of contention did not go so far as to assert that there was no jurisdictional error by the Tribunal in not referring to a matter that was not agitated before it.

As we have noted, there was before the Tribunal, in the representations of the Appellant, material relevant to the psychological and emotional impact of separation from her two dogs. In its decision, the Tribunal carefully considered each contention put to it on behalf of the Appellant when addressing the “other considerations” set out in clause 14(1) of Direction No. 79 and which the primary judge summarised at [22]–[26] of her reasons. Specifically, the Tribunal, in considering the extent of impediments if removed, did not accept the Appellant’s contention that separation from her friends and her partner would significantly and adversely impact on her mental health. The Tribunal reasoned that mental health services and welfare support are available in New Zealand and that overall, the Appellant “has some impediments to re-establishing herself in New Zealand, however these are not insurmountable, and this factor weighs slightly in favour of revoking the cancellation of her visa”: [130].

The content of any statutory obligation to give reasons for a decision is relevant to the question of what, if any, inferences may be drawn from a decision-maker’s statement of reasons vis a vis the apparent absence of any reference to, or findings on, particular claims or evidence. Where reasons are given in writing, s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (which applied in this case) imposes an obligation on the Tribunal, to “include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.” An obligation in such terms has been held to require that the Tribunal set out the findings of fact which it subjectively considers to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf) at [68] (by analogy). The consequence is that this Court on judicial review is entitled to take the reasons of the Tribunal as setting out the findings on each matter which it considered material to its decision and is entitled to “infer that any matter not mentioned [in the statement of reasons] was not considered by the Tribunal to be material” : Yusuf at [69]. Similarly, Gleeson CJ in Yusuf at [5] explained that:-

"When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal’s decision, in the light of the statutory requirements contained in s 430 [of the Migration Act]. The Tribunal is required, in setting out its reasons for decision, to set out “the findings on any material questions of fact”. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter, and that in turn, may indicate that the Tribunal did not consider the matter to be material."

(Emphasis added.)

See also e.g. ETA067 v Republic of Nauru (2018) 92 ALJR 1003; [2018] HCA 46 at [13] (Bell, Keane and Gordon JJ).

Conversely as Gleeson CJ also held at [10], by setting out its findings, and thereby exposing its views on materiality, the Tribunal’s reasons may disclose (relevantly) a jurisdictional error.

Furthermore, in Applicant WAEE, the Full Court of this Court (French, Sackville and Hely JJ) in two oft cited passages at [46]–[47], explained (in the context of a decision by the then Refugee Review Tribunal to affirm a decision refusing the grant of a protection visa to the appellant):-

"It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]- [97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked".

Thus, while s 501CA of the Migration Act imposes an obligation upon the Minister, and the Tribunal on review, to consider an applicant’s representation, it does not follow that every statement contained therein is of itself a mandatory consideration with the consequence that a failure to consider some aspect of the representations amounts to jurisdictional error: Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531; [2018] FCAFC 116 at [67]–[69]; EVK18 v Minister for Home Affairs (2020) 274 FCR 598; [2020] FCAFC 49 at [10] and Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [34]–[36].

In this case, we are not persuaded that the Appellant discharged her onus of establishing on the balance of probabilities that the Tribunal overlooked a material representation advanced by the Appellant.

In her Honour’s reasons addressing ground 4 of the judicial review application, the primary judge at [95] correctly stated that:-

"The question of whether a claim amounts to a “clearly articulated and substantial or significant representation” so as to give rise to an obligation on the Tribunal to consider and address it has been described as a “fact sensitive inquiry”: Kwatra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 58 at [34].

In this regard, we agree with the primary judge that the separation impact issue was a sufficiently clearly articulated claim to require the Tribunal to consider it, given the representation made by the Appellant to the Minister pursuant to s 501CA(3)(b) of the Migration Act which was therefore also before the Tribunal."

However, with respect, contrary to her Honour, in our view there was no reason why the Yusuf inference should not be drawn, given the way in which the Appellant presented her case before the Tribunal. In our view, the primary judge at [98]–[99] erred in placing too much emphasis upon the content of the relevant representation, when the correct approach in this case required careful attention to the case that the Appellant sought to make to the Tribunal. Significantly, the Appellant’s legal practitioner, in formulating her SFIC before the Tribunal, comprehensively addressed each of the impediments the Appellant contended she would or may suffer if removed at paragraphs [65]–[67] and listed a number of miscellaneous considerations at paragraph [68] but made no contention that the impact of separation from the Appellant’s dogs was at all relevant. Nor did the Appellant adduce any evidence before the Tribunal as to the costs of relocating the dogs to New Zealand and her inability to meet such cost. Viewed in that context, we are not satisfied that the Appellant established that the Tribunal’s failure to mention her claims about her relationship with her dogs and the mental health impacts for her if she was returned to New Zealand and separated from them should have founded the inference that the Tribunal failed to consider these claims.

Conclusion:-

For these reasons, we uphold the Minister’s notice of contention and dismiss the appeal.

Added a post 

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 [2022] FCAFC 21 (28 February 2022)

Intro:-

This appeal raises a question concerning the proper construction of s 500(6H) of the Migration Act 1958 (Cth).

Facts:-

The background to this proceeding is set out in the Reasons of the primary judge: see DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 862 at [5]- [7]:

In or around 1994, the applicant was born in South Sudan. In 2004, the applicant was granted a humanitarian visa and arrived in Australia. He remains in Australia. Between 22 June 2012 and 24 November 2017, the applicant was convicted of a number of criminal offences. On 16 January 2018, a delegate of the Minister cancelled the applicant’s visa under s 501(3A) of the Act. The applicant made representations for the cancellation to be revoked. On 21 September 2018, a delegate of the Minister (delegate) determined not to revoke the cancellation of the applicant’s visa.

On 27 September 2018, the applicant applied to the Tribunal for review of the delegate’s decision. It is not in contest that, as required by s 500(6F), the Minister lodged with the Tribunal copies of the documents in the Minister’s possession relevant to the making of the delegate’s decision which the Tribunal’s reasons refer to as the “G documents”. On 11 October 2018, the Tribunal made directions, including a direction that the applicant file submissions and any further evidence on which he proposed to rely at the hearing and serve a copy on the Minister by 22 November 2018. The applicant did not file any submissions, nor did he submit any further evidence prior to the Tribunal hearing held on 3 December 2018. However, immediately before the hearing commenced, the Tribunal was informed that the applicant’s partner and his former teacher were present and that the applicant, who was self-represented, wanted to call them as witnesses. The Minister did not object to the former teacher giving evidence on account of the fact that the documents before the Tribunal included a letter written by the teacher. Objection was taken, however, to the Tribunal receiving any evidence from the applicant’s partner. The Minister submitted to the Tribunal that s 500(6H) of the Act prevented the applicant from calling his partner as a witness because she did not provide a witness statement to the Minister two clear days prior to the hearing.

The Tribunal determined not to permit the applicant’s partner to give evidence.

Section 500(6H) of the Migration Act relevantly provides:

500 Review of decision

...

(6H) 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 information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

There was no debate between the parties before the primary judge that the factual preconditions in s 500(6H)(a) and (b) were met: Reasons at [5].

Section 500(6J) should also be set out:

(6J) 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. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.

Decision of Primary Judge

The primary judge framed the question of construction in the following way at [13]-[14] of the Reasons:-

The issue for determination is therefore this: Does s 500(6H) require that the Tribunal must not have regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing?

If the answer to that question is yes, the Tribunal did not misconstrue s 500(6H) and its decision to refuse to receive the evidence of the applicant’s partner was free of error. Subject to the issue of materiality later discussed, if the answer is no, the Tribunal misconstrued s 500(6H) of the Act, denied the applicant procedural fairness and jurisdictional error would be established.

The primary judge held the answer to this question was “no”. His Honour drew a distinction between notice being given about the “content” of information and notice being given about the information’s “source” (i.e., the particular witness): see Reasons at [33], read with [42]-[47]. His Honour found prior notice of the “source” need not always be given; it would depend on whether proper notice of the source was “critical to the sufficiency of the notice necessary to be given to the Minister to avoid the Minister being forced into calling for an adjournment of the hearing”: Reasons at [45]-[46]. His Honour rejected the Minister’s contention that “statement” should be read as though it means “witness statement”: Reasons at [41].

Subject to circumstances where the source was critical, his Honour found all that needed to exist in the materials before the Tribunal were “written communication[s] asserting particular facts about a situation, person or event”: Reasons at [40].

Applying this construction to the facts, the primary judge found that the Tribunal had misconstrued s 500(6H) by construing it as always requiring prior notice of the source of the information to be presented orally, and by requiring that there must be a written statement outlining the evidence to be given: Reasons at [48].

In the circumstances before the Tribunal, no advance notice had been given that the first respondent sought to call his partner to give oral evidence. At [17] of the Reasons, the primary judge set out the first respondent’s contention about where in the material before the Tribunal there were written statements sufficient to comply with s 500(6H), on the construction for which the first respondent contended:

The applicant submitted that the oral evidence of his partner should have been heard and taken into account to the extent that it substantively conformed to what had previously been set out in written statements provided to the Minister. The applicant referred to various information which the applicant’s partner could have addressed contained in the documents before the Tribunal (and of which the Minister had prior notice), including:-

- descriptions of the applicant’s relationship with his partner and her children in the statement of personal circumstances in the applicant’s application to revoke the cancellation of his visa; and

- a record of an interview with the applicant describing his relationship with his partner.

The documentary materials before the Tribunal also included a personal statement from the applicant in which he expressed his remorse about his misconduct and the hurt caused to his family. On the applicant’s contention, each of those documents contained information set out in a written statement and provided to the Minister within the meaning of s 500(6H).

Although later in his reasons the primary judge does not make an express finding about where in the materials before the Tribunal the written statements were, it appears that his Honour accepted the first respondent’s contention, which he had extracted at [17]. In other words, the primary judge considered s 500(6H) was not engaged because there were, in the materials already before the Tribunal, “written communication[s] asserting particular facts about a situation, person or event”, that being his Honour’s conclusion of what s 500(6H) required: Reasons at [40].

The primary judge admitted, over the Minister’s objection, an affidavit from the first respondent’s partner about the evidence she would have given to the Tribunal if permitted to do so. His Honour found at [53] that:-

"the applicant’s partner would have given evidence about a broad range of matters, including her relationship with the applicant, her children and how they might be affected if he were deported."

The primary judge relied on this affidavit to find the Tribunal’s error was material and therefore jurisdictional, although this passage also illustrates the breadth of the evidence that was proposed to be given by the first respondent’s partner.

Issue:-

Does s 500(6H) require that the Tribunal must not have regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing?

Consideration:-

The Minister contends on the appeal that the primary judge erred in the construction he gave to the prohibition in s 500(6H). The Minister submits that s 500(6H):-

"prevent[s] the Tribunal having regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing."

(Original emphasis.)

The Minister makes the following submissions in support of his overall contention:

(a) The use of the word “statement” in the provision does not suggest any particular form of document, in the sense that there need not be a signature, nor any affirmation: see Mordechai v Minister for Immigration and Citizenship [2011] FCA 986; 196 FCR 509 at [38]- [39].

(b) However, Parliament’s use of the term “written statement” means what it says, especially since s 500(6J) uses “document” in quite a different context. Therefore, a review applicant must provide, at least two days before a review hearing, a written statement setting out the information to be given by a particular witness. A “piecemeal” collection of documents already in existence before the Tribunal does not suffice.

(c) The Tribunal’s procedures for receiving evidence inform the construction of s 500(6H), even if the Tribunal is directed to conduct its proceedings with as little formality and technicality as consideration of the matter before the Tribunal permits. The use of the word “statement” in s 500(6H) should be construed accordingly to mean “a document containing or outlining the evidence to be given by a particular (and identified) witness”.

These submissions and the Minister’s overall contention should be accepted. In our opinion, they reflect the basic requirement imposed by the provision which is evident from the text and context of the prohibition, without any artificiality or strained approach being applied. There may be some nuances in its application to particular circumstances: see DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229 at [69]. However, as the High Court made clear in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203, s 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms. The provision does not fetter the power of the Tribunal to adjourn a review, so as to ensure that the review is conducted thoroughly and fairly: Uelese at [57], [70], [77].

The Minister’s comparison with the text of s 500(6J) is justified and important. The two provisions must be read together. When that is done, it is clear that Parliament intended the two provisions to cover all the categories of material likely to be before the Tribunal on a merits review of a decision under s 501 or s 501CA(4) of the Migration Act, and to impose some restrictions across all those categories of material.

In particular, Parliament’s choice of the phrases “information presented orally in support” and “written statement given to the Minister” in s 500(6H) on the one hand, compared with the phrases “any document submitted in support” and “a copy of that document” in s 500(6J), makes it clear that s 500(6H) is directed towards witness testimony and s 500(6J) is directed towards all other forms of material before the Tribunal. Counsel for the first respondent on the appeal is correct to note that the term “document” includes material wider than written information. The word is not relevantly defined in the Migration Act, but the Acts Interpretation Act 1901 (Cth) provides an extended definition in s 2B:

document means any record of information, and includes:

(a) anything on which there is writing; and

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and

(d) a map, plan, drawing or photograph.

Thus, all material falling within this definition, including written information, is covered by the restriction in s 500(6J).

Witness testimony – oral testimony in chief – is the subject matter of the restriction in s 500(6H): Uelese at [104]. Oral submissions do not fall within s 500(6H): Uelese at [103]-[104].

In addition to Uelese, the Minister relied on DCR19 at [68] and [73], SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; 141 ALD 395 at [70], and SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129 (SZRTN (Full Court)) at [27], all of which the Minister submits are consistent with these contentions.

The following points emerge from these authorities:

(a) A witness may give evidence orally which expands upon what is in a statement so long as they do not stray outside the subject matter of the statement, fairly understood: see SZRTN at [70].

(b) In any given review, the application of s 500(6H) may be somewhat iterative. Where there has been some compliance with s 500(6H), the restriction may nevertheless apply to some parts of a witness’s oral evidence. Through a process of adducing oral evidence and objections, the Tribunal may need to form a view about which, if any, oral evidence departs, in a substantive way, from the content of any written statements: see DCR19 at [71]; SZRTN (Full Court) at [27].

(c) Section 500(6H) does not require a written statement to be in any particular form. Its purpose is to give fair notice to the Minister of what a review applicant’s case will be, and to prevent a circumstance arising in which the Minister is taken by surprise by late changes or additions to an applicant’s case: DCR19 at [58]. See also Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; 111 FCR 378 at [25].

(d) The restriction does not impede cross-examination, nor questioning by the Tribunal itself: Uelese at [59].

(e) Section 500(6H) does not deny a review applicant an “entitlement” to rely upon evidence adduced by the Minister or elicited by the Tribunal itself, if that evidence happens to be supportive of the applicant’s case: Uelese at [72].
24 The dictionary meaning of “statement” as including a “communication” or “document” does not take the task of determining the correct meaning of s 500(6H) any further. This is a situation where the statutory term is not just “statement”, but a larger phrase. The whole phrase, which has as its subject “any information presented orally”, is “set out in a written statement given to the Minister...”. In that context, it is clear that Parliament intends to refer to a document that records in writing the substance of what a person will say when that person gives oral testimony to the Tribunal. It must also be a statement that is “given” to the Minister, being a verb that requires some kind of advance notice to the Minister in a positive sense, about what testimony a person is proposed to provide in support of the review of the applicant’s case.

It does not have to be a statement made by the person who will give evidence; for example, it could be an outline provided by a migration agent or lawyer on behalf of a review applicant, or by a review applicant themselves in a letter or an email. The “written statement” might provide an outline of what more than one person will say. The terms of s 500(6H) are not prescriptive about these matters.

The construction advanced by the Minister, and which we consider to be correct, has nothing to do with “perfection”, contrary to the first respondent’s submissions. While the written statement must “set out” the information in support to be given orally, no excessive or unreasonable scrutiny should be applied to the content of the written statement. Otherwise, the point of calling a person to give oral evidence would be defeated: SZRTN at [70].

The Minister also submits that the primary judge’s construction of s 500(6H) would give rise to significant uncertainty and impracticality, and contends that a construction which would lead to such anomalous results should not be adopted without clear and cogent language to that effect:

Without some written indication of the evidence to be given by each particular witness, the Minister will not be in a position to effectively identify the case that they are required to meet, nor to assist the Tribunal in identifying the evidence to which it is permitted to have regard under s 500(6H). If a ‘written statement’ merely means that evidence consistent with that anticipated to be given by a witness has been recorded in writing at some point in the material provided to the Tribunal (even if, as in this case, that material records the evidence of a completely different person), then the resolution of any objection to evidence in chief under s 500(6H) will require parties and Tribunal alike to scour the entirety of the written material before the Tribunal to determine if anything equivalent has ever been recorded in writing at any previous point. Parliament cannot and should not be taken to have intended that s 500(6H) should require a prolonged, complex and potentially contested inquiry of that kind without clear language to that effect.

(Original emphasis.)

We agree. The Tribunal operates in a practical and pragmatic jurisdiction, with many self-represented litigants who also need to comply with its processes and any statutory restrictions or directions. It operates under a great deal of time pressure (including time limits imposed under this Act for the conduct of these kinds of reviews: see Migration Act s 500(6L)), with a high volume of reviews to conduct. Provisions regulating its processes must be construed in that context. In this legislative scheme, it is unlikely Parliament intended that the application and operation of the restriction in s 500(6H) could only be understood after an exhaustive search of all the material before the Tribunal, and the piecing together of bits of information from different sources to see if they correlate with the proposed oral evidence of a witness.

The Tribunal’s refusal to allow the first respondent’s partner to be called at all

There was some suggestion in the first respondent’s submissions that the Tribunal erred in not permitting the first respondent’s partner to give oral evidence at all. In the circumstances of this review, and given the construction of s 500(6H) which we consider to be correct, there was no error in the approach taken by the Tribunal.

Adjournment of the review if s 500(6H) is not complied with

As the Tribunal itself recognised in the transcript of the hearing of the review, the Tribunal has a discretion to adjourn the review so that a notice in accordance with s 500(6H) can be given. The Minister submitted an exercise of power of that kind would defeat the purpose of s 500(6H). We do not accept that submission. These are matters to be determined by the Tribunal on a case-by-case basis, with the ultimate objective of ensuring, as the plurality said in Uelese at [73], the fair conduct of the review hearing. Much will depend on the particular facts of the review hearing, and the course of conduct leading up to it.

Ultimately, in this case the Tribunal did not adjourn the review. That was a matter for its discretion.

Conclusion:-

The appeal be allowed.

Added a post 

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 (22 February 2022)

Intro:-

The appellant is a citizen of New Zealand who has lived in Australia since he was a young child. He is now 33 years of age. By reason of his conviction and sentencing for grievous bodily harm in 2017, his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). Power is conferred by s 501CA(4) to revoke the visa cancellation if the Minister is satisfied that there is reason to do so. A delegate of the Minister was not so satisfied and the cancellation was not revoked. The appellant sought review in the Administrative Appeals Tribunal.

Facts:-

In deciding whether to revoke the visa cancellation, the Tribunal was required to perform its function and exercise the power to revoke in accordance with any directions given by the Minister under s 499 of the Migration Act. At the time, there was such a direction in place being Direction 79 - Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (Direction 79). Amongst other things, the direction identified the considerations relevant to former visa holders in determining whether to exercise the revocation power under s 501CA(4).

The Tribunal affirmed the decision of the delegate. The appellant then sought review in this Court on the basis of alleged jurisdictional error. The alleged error concerned the Tribunal’s understanding of what was required by Direction 79 when it came to weighing the relevant considerations specified in the direction.

A judge of this Court found that the Tribunal had misconceived what was required by Direction 79 when it came to the process of weighing up or balancing the relevant considerations but that the error could not realistically have affected the result. Therefore, on the basis that the error was not material, the application for review was dismissed.

Direction 79

The written submissions for the Minister stated that it is not contentious that non-compliance with Direction 79 may constitute jurisdictional error. In the course of the hearing it was accepted by counsel for the Minister that a failure to comply with the direction’s express requirements as to the considerations to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional. This position accords with a number of recent Full Court decisions concerning such directions: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [29] (Derrington and Thawley JJ); PQSM v Minister for Home Affairs [2020] FCAFC 125; (2020) 279 FCR 175 at [90] (Banks-Smith and Jackson JJ), compare [29]‑[45] (Mortimer J); and Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [179] (O’Bryan J, Katzmann J agreeing).

The issues raised concerned precisely what was required by Direction 79 when it came to weighing or balancing the relevant considerations specified in the direction when exercising the power conferred by s 501CA(4). In that regard, the following aspects of Direction 79 may be noted:

(1) The direction describes its contents as comprising, relevantly:
Preamble Contains the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen’s visa under section 501 or to revoke a mandatory cancellation under section 501CA.

...

Part C Identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.

(2) The Preamble sets out ‘General Guidance’ in para 6.2. It includes a statement that ‘factors that must be considered in making a revocation decision [under s 501CA] are identified in Part C of this Direction’.

(3) The Preamble also sets out certain ‘Principles’. They include the following two Principles at para 6.3(5) & (7):

Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

...

The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

(4) There is a further statement in para 7 of the Preamble as to how the relevant discretion is to be exercised. Relevantly for present purposes it says:

Informed by the principles in paragraph 6.3 above, a decision-maker ... must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a noncitizen’s visa will be revoked.

(5) Then para 8 of the Preamble says:

Taking the relevant considerations into account

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders; and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.


(6) Part C specifies three primary considerations, namely:

a) Protection of the Australian community from criminal or other serious conduct;

b) The best interests of minor children in Australia;

c) Expectations of the Australian community.


(7) Part C also specifies other considerations which ‘must be taken into account where relevant’, namely:

a) International non-refoulement obligations;

b) Strength, nature and duration of ties;

c) Impact on Australian business interests;

d) Impact on victims;

e) Extent of impediments if removed.


It can be seen that Direction 79 specifies considerations which must be taken into account by a decision-maker such as the Tribunal in exercising the power conferred by s 501CA(4) to revoke a visa cancellation. The direction also differentiates between ‘primary and other considerations’. All specified considerations must be taken into account where relevant. However, when it comes to weighing those considerations, Direction 79 expressly requires that primary considerations should generally be given greater weight than the other considerations.

The ordinary meaning of the word ‘generally’ deployed in the manner in which it is used in the direction is to describe what is required in most instances. As was observed by the primary judge it conveys no more than ‘usually’, ‘commonly’ or ‘ordinarily’: at [23]. Therefore, as a matter of proper construction of the terms of the direction, the requirement to ‘generally’ give greater weight to the primary considerations means that there must be some matter specific to the circumstances of the case for giving one of the other considerations greater weight than any of the primary considerations before that can occur. Put another way, a decision could not be made on the basis that one of the other considerations, such as the strength, nature and duration of ties to Australia, was a matter that was inherently a matter to be given more weight than one or more of the primary considerations. Rather, there must be a reason, in the particular case, why the ‘other consideration’ is to be given greater weight than it would usually be given (being less weight than the primary considerations).

The relevant reasoning of the Tribunal

After setting out the relevant provisions of Direction 79, the Tribunal said at paras 54‑55:

In Suleiman v Minister for Immigration and Border Protection Colvin J, in applying the identical provision to Paragraph 8(3) in the precursor Direction 65 stated that while generally primary considerations should be given greater weight, the Direction:-

"... requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

An evaluation of the factors occurs in the context of the circumstances of the individual case, and while the primary considerations may outweigh the other considerations in accordance with paragraph 8(3), other considerations can outweigh the primary consideration in the particular circumstances of the case."

(footnotes omitted)

There was no criticism of this aspect of the Tribunal’s reasons. Twice it refers to ‘paragraph 8(3)’ of Direction 79. It may be noted that para 8(3) deals with primary and other considerations and how they may weigh in favour of or against revocation of a visa cancellation. As we will see, the particular issue for the Tribunal was how to undertake the task of weighing those considerations being a matter addressed by para 8(4) and (5).

The Tribunal then undertook an extensive and careful review of the material concerning each of the considerations referred to in Direction 79 and reached certain conclusions as to the degree of weight to be given to each of them.

As to the primary considerations, after evaluating the nature and seriousness of the appellant’s conduct to date as part of addressing the primary consideration of protection of the Australian community, the Tribunal said ‘the nature and seriousness of [the appellant’s] conduct weighs heavily against revoking the cancellation of the visa’ (para 81). The Tribunal then evaluated in considerable detail the material concerned with the appellant’s risk of re-offending and concluded that he has a ‘medium likelihood of reoffending’ (para 160) and that together with its evaluation that the consequent harm if he re-offended would be serious concluded that the protection of the Australian community ‘weighs heavily in favour of not revoking the cancellation of [the appellant’s] visa’ (para 162). As to the best interests of minor children in Australia, the Tribunal again undertook a detailed review of the material. It concluded that ‘the interests of minor children weigh heavily in favour of revoking the cancellation of his visa’ (para 231). Then as to the expectations of the Australian community, the Tribunal found, after considering relevant authority, that the expectation of the Australian community was that his visa would be cancelled (para 234). Nevertheless it found that countervailing considerations were such that a higher level of tolerance would be afforded to him because he had been in Australia from a young age, has made a positive contribution to the Australian community and has minor children and all his immediate family in Australia (para 236). It concluded as to the expectations of the Australian community that it was a consideration that ‘weighs considerably in favour of not revoking the cancellation of his visa’ (para 237).

As to the other considerations, each was evaluated. Most were found not to apply or to be ‘neutral’. However, as to the strength, nature and duration of the appellant’s ties to Australia, the Tribunal concluded (at para 288) after a detailed review of the material as follows:-

"Having taken into account [the appellant’s] ties with his immediate family, his extended family, Ms B, Ms TT and other members of the community, the Tribunal is satisfied this factor weighs strongly in favour of revoking the cancellation of his visa. When this consideration is added to the significant weight in favour of revoking the cancellation due to the length of time he has lived in Australia, this consideration weighs strongly in favour of revoking the cancellation of his visa."

The Tribunal also found that the appellant would face minor impediments in re-establishing himself in New Zealand and that factor ‘should be given slight weight in favour of revoking the cancellation of his visa’ (para 304).

The Tribunal then undertook an overall evaluation that involved bringing together the relative views that it had reached. Under the heading ‘Conclusion’, it said (paras 305‑308):

1) Of the primary considerations, the protection of the Australian community weighs heavily in favour of not revoking the cancellation of [the appellant’s] visa, and the expectations of the Australian community weigh considerably in favour of not revoking the cancellation. The best interests of the children weigh heavily in favour of revoking the cancellations of the visa.

2) Of the other considerations, the strength nature and duration of [the appellant’s] ties weighs heavily in favour of revoking the cancellation of [the appellant’s] visa and the extent of impediments if removed weighs slightly in favour of revoking the cancellation of his visa.

3) Primary considerations should generally be given greater weight than the other considerations (cl.8(3)). In accordance with Suleiman, to give greater weight to one primary consideration, or to treat one or more of the other considerations as a primary consideration, it will be outside of the circumstances that generally apply. The Tribunal does not consider the circumstances of this case as outside those that generally apply.

4) The Tribunal considers the two primary considerations of protection of the community and the expectations of the community outweigh the best interests of the children, the strength, nature and duration of [the appellant’s] ties to Australia and any impediments he will face re-establishing himself in New Zealand. This means the decision not to revoke the mandatory cancellation of his visa is affirmed.

The structure of the four paragraphs that form the conclusion is significant. The first deals with the weight to be afforded each of the primary considerations, the second deals with the weight to be afforded each of the other considerations that were earlier found to be of significance in the case of the appellant. The third deals with the proper approach to the overall weighing process. The fourth records the way in which the Tribunal weighed the considerations.

The first and second paragraphs accurately record the outcome of the detailed relative evaluation of the weight to be afforded each of the considerations considered by the Tribunal to be relevant and of significance. There is no criticism of them.

The fourth paragraph states the Tribunal’s view that the combined effect of the two primary considerations that it had found favoured non-revocation outweighed the combined effect of the third primary consideration and the other considerations that favoured revocation. As such, it records an overall assessment by the Tribunal that brings together all relevant considerations. Significantly, it undertakes that overall evaluation by bringing together the relative assessments the Tribunal has already made in the detailed reasoning that has been described.

The appellant’s contention concerning the Tribunal’s conclusion

Despite the Tribunal recording its evaluation in the manner described above, the contention advanced by the appellant concerning the third paragraph of the Tribunal’s conclusion was that it involved the Tribunal adopting a view that in order for any one primary consideration to have greater weight than the other primary considerations the case had to be outside of the circumstances that generally apply. It followed from the appellant’s contention as to what was meant by the second sentence that the Tribunal was saying in the third paragraph that because the case was not outside the circumstances that generally apply greater weight could not be given to the primary consideration concerned with the best interests of children over the other primary considerations.

It was also submitted that the Tribunal expressed the same view about the other considerations prevailing over the primary considerations. In short, they could not prevail because the case was not outside of the circumstances that generally apply.

Issue:-

Did the Tribunal err in applying Suleiman?

Consideration:-

As has already been explained, before embarking upon its task of evaluating the various considerations listed in Direction 79 for relevance and weight, the Tribunal described what was required by Suleiman. It did so in terms that were not criticised. In particular, it described Suleiman (correctly) as dealing with the circumstances in which ‘other considerations’ can outweigh primary considerations. At that point, the Tribunal did not refer to the circumstances in which one primary consideration may outweigh other primary considerations, being a matter that was not addressed in Suleiman and which, in any event, is addressed expressly in para 8(5) of Direction 79 which says in terms that one or more primary considerations may outweigh other primary considerations.

Further, it is plain that at the contentious point in its conclusion the Tribunal is reasoning by reference to what was said in Suleiman. The decision in Suleiman, like the present appeal, concerned an application to review a decision concerning the power under s 501CA and a direction expressed, for present purposes, in similar terms to Direction 79. The Tribunal in its reasons had described the other considerations as ‘secondary’. In the key part of its reasons concerning the risk of harm to Mr Suleiman if he was returned to his country of nationality, the Tribunal had said that the primary considerations in Direction 65 (the predecessor to Direction 79) ‘are normally given greater weight than the other considerations and in light of the evidence before it, the Tribunal finds that the primary considerations here clearly outweigh this secondary consideration’: at [22]. In that context, it was said by Colvin J at [23]:

"The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply."

The reasoning went on to conclude at [28]:-

"To treat the other consideration as secondary irrespective of its character in the particular case does not conform to the language of Direction 65. So, in this case, even though the Tribunal found that the applicant was ‘at risk of harm - arguably even death given the consequences that flow from this mental disability if left untreated’ this was a matter that it placed as always being of lesser importance than the primary considerations. The Tribunal did not consider, as it was required to do by Direction 65, whether in the specific circumstances the non‑refoulement obligations should be afforded greater weight.

The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.

Having regard to what was decided in Suleiman it would be strange for the Tribunal to be saying something about the relative weight as between primary considerations.

The contentious sentence in the Tribunal’s reasons

Turning then to the contentious words used by the Tribunal in the single contentious sentence in its reasons. It will be remembered that in Direction 79 there are three primary considerations and five other considerations.

The submission for the appellant is to the effect that the Tribunal’s words ‘give greater weight to one primary consideration’ meant ‘give greater weight to only one primary consideration over one or both of the other two primary considerations’. The submission for the Minister was to the effect that those words referred to the possibility of a particular primary consideration having greater weight over the other considerations. There is a further possibility (close to the submission for the Minister), namely that there is a slip in the wording and the Tribunal meant to refer to the possibility of one of the other considerations being given greater weight than any of the primary considerations.

The appellant’s construction should not be accepted

For the following reasons, the appellant’s submission concerning the meaning of the contentious sentence should not be accepted.

First, the Tribunal began its analysis at paras 54‑55 with a correct statement of what was determined by Suleiman being a statement that did not suggest that it was concerned with when one primary consideration may be given greater weight than another.

Second, the opening words to the third paragraph of the Tribunal’s conclusion focus attention upon the issue as to when primary considerations should be given greater weight over the other considerations.

Third, it was obvious that Suleiman was concerned only with the circumstances in which one of the other considerations (described as secondary by the Tribunal in that case) might be given greater weight than the primary considerations. It was also stated squarely in Direction 79 in para 8(5) that one or more primary considerations may outweigh other primary considerations. Therefore, neither Suleiman nor the direction indicated any uncertainty as to the correct approach to weighing primary considerations with each other.

Fourth, the Tribunal used the language ‘treat one or more of the other considerations as a primary consideration’ which was plainly taken from the last sentence of [23] of Suleiman. The other alternative referred to in that sentence was treating one or more of the other considerations as the consideration to be afforded the greatest weight. Given the introductory words to the contentious sentence (which refer to ‘accordance with Suleiman’) it appears tolerably clear that the Tribunal was paraphrasing the two conditions stated in the last sentence of [23]. If so, it is likely that the contentious words were stating the second of those conditions which concerned when one or more of the other considerations might be afforded greatest weight amongst all considerations. Divorced from an understanding of what was said in Suleiman it may be argued that the appellant’s construction of the reasons should be accepted. However, read in the context of what was said in Suleiman, there is much to be said for the Minister’s alternative or the likelihood that something miscarried.

Fifth, and most significantly, as has been explained the weighing process that was actually undertaken by the Tribunal in the following paragraph did not give effect to the construction for which the appellant contends. If indeed the Tribunal had meant to state what was argued for the appellant then it would make no sense for the Tribunal to go on and weigh the various considerations in the manner that it did in the fourth paragraph.

Another way of expressing the above analysis is to say that the appellant’s submission approaches the Tribunal’s reasons with an eye attuned to finding error. Imperfections of expression in a single sentence in what were otherwise comprehensive and detailed reasons evaluating the relative weight to be afforded all of the relevant considerations followed by a conclusion expressed in the terms of the fourth paragraph of the conclusion shows that the Tribunal has performed its function and exercised its powers by complying with Direction 79.

Conclusion:-

It follows that no error of the kind relied upon by the appellant has been demonstrated and for that reason the notice of contention by the Minister must be upheld. The appeal depended upon the contrary conclusion by the primary judge being sustained. As that premise for the appeal has not been upheld, the appeal must be dismissed and it is not necessary to consider the issues raised in relation to materiality.

Added a post 

Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 (17 February 2022)

Intro:-

This is an appeal from a decision of a single judge of this Court exercising original jurisdiction under s 476A of the Migration Act 1958 (Cth) to review a decision of the Administrative Appeals Tribunal.

Facts:-

The Tribunal affirmed a decision of a delegate of the first respondent (Minister) made under s 501CA(4) of the Act not to revoke the mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa pursuant to which the appellant, Luke Dunasemant, a citizen of New Zealand, has lived in Australia for about 18 years.

The primary judge found that the Tribunal erred in failing to consider the effect of non-revocation on Mr Dunasemant’s mother, concluding that Mr Dunasemant’s representations on this topic and the evidence said to support them had been overlooked by the Tribunal. Nevertheless, the primary judge found that the Tribunal's failure to take this matter into account was not a jurisdictional error, because it was not material to the Tribunal's decision.

The original notice of appeal was filed on 3 March 2021, at a time when Mr Dunasemant was not legally represented. It was limited to a single ground of appeal which, inter alia, challenged the primary judge’s finding on the question of materiality.

By notice of contention filed on 31 March 2021, the Minister contended that a further ground upon which the primary judge’s conclusion as to the absence of jurisdictional error should be upheld was because there was an insufficient legal and evidential basis to support a finding that the Tribunal failed to consider the impact of non-revocation on Mr Dunasemant’s mother.

On 7 May 2021, Mr Dunasemant having obtained legal representation, filed an amended notice of appeal and an interlocutory application seeking to adduce further evidence on the appeal, effectively being the transcript of the proceedings before the Tribunal, which was not before the primary judge.

The Primary Judge's Decision

A key finding by the primary judge was that the Tribunal, in what was otherwise a detailed, lengthy and reasoned decision, overlooked and failed to have regard to the effect of non-revocation on Mr Dunasemant’s mother.

The application before the primary judge was limited to one ground. The ground was that the Tribunal failed to consider the effect of non-revocation on Mr Dunasemant’s mother, although it was required to do so under Direction no. 79 “Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA”. The Direction is a written direction given by the Minister under s 499(1) of the Act and with which the Tribunal is bound to comply: s 499(2A).

The primary judge set out the submissions made by Mr Dunasemant (at [24]):

Mr Dunasemant submitted that the Tribunal was required to consider the effect of non-revocation on his mother as a member of his family with a right to remain in Australia indefinitely so that its failure to do so amounts to jurisdictional error. Yet, despite the terms of para 14.2(1)(b) of the Direction, the Tribunal did not consider the effect of non-revocation on any of his immediate family members in Australia. He also submitted that, if the Tribunal had considered the effect of non-revocation on his mother as it was required to do, then “it is possible the Tribunal may have found” that the first and third primary considerations were outweighed by the other consideration in para 14.2(1).

The parts of the Direction presently relevant are:-

14. Other considerations – revocation requests

(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a) ...

(b) Strength, nature and duration of ties;

(c) ...

Paragraph 14.2 of the Direction elaborates on para 14.1(b) and provides that:

(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a) ...

(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

Paragraph 6.3 contains the principles underpinning the whole of the Direction, the last of which reads:

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

Significantly, for the outcome of this appeal, the principles articulated in para 6.3 of the Direction are relevant to both the primary considerations and the other considerations set out in the Direction.

In the present appeal, the two relevant considerations which Mr Dunasemant argued should have been weighed so as to take into account the consequences for other immediate family members in Australia were primary consideration (c) – expectations of the Australian community (para 13(2)(c) and 13.3) and other consideration (b) – strength, nature and duration of ties (para 14(1)(b) and 14.2(1)(b)).

The primary judge identified the question for determination as whether the Tribunal fell into jurisdictional error by failing to consider the effect of non-revocation on Mr Dunasemant’s mother. The primary judge answered that question in the negative and dismissed Mr Dunasemant’s application. In reaching her conclusion, the primary judge asked and answered the following three questions. First, whether the Tribunal was required to consider the effect of non-revocation on Mr Dunasemant’s mother. Answer, yes. Second, did the Tribunal fail to do so. Answer, yes. Third, whether it could have made a difference if it had. Answer, no.

Although both Mr Dunasemant and his mother gave evidence before the Tribunal, the transcript of the Tribunal proceedings was not before the primary judge nor was any affidavit addressing any aspect of the Tribunal hearing on which Mr Dunasemant wished to rely in his review application. The primary judge noted that as a consequence (at [35]):

..there was nothing before the Court to indicate that any evidence on the subject was adduced at the hearing or that any reference was made in submissions to the representation concerning the effect of non-revocation on Ms Dunasemant. It is not open to the Court to speculate on the matter but the Court may infer that no such evidence was adduced and no such reference was made.

In the present case, regardless of the weight the Tribunal attached to the primary considerations of the protection and expectations of the Australian community, it is fanciful to think that the outcome could have been any different if (approaching the matter fairly and reasonably with an open mind) the Tribunal had considered the effect of non-revocation on Ms Dunasemant. In the absence of any material which would have enabled the Tribunal to make a finding on the nature and extent of the effect, the Tribunal’s error was “so insignificant that [its] failure to take it into account could not have materially affected its decision” (Hossain [v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123] at [30]). That conclusion is only reinforced if the Tribunal’s opinions on the weight to be attached to the protection and expectations of the Australian community are taken into account. Put another way, having regard to the paucity of evidence on the subject, Mr Dunasemant has not discharged his onus of proof. The oversight on the part of the Tribunal did not “rise to the level of jurisdictional error” (Hossain at [37]).

Issue:-

a) did the primary judge err in concluding that the Tribunal did not commit a jurisdictional error in failing to have regard to the effect of non-revocation on Mr Dunasemant’s mother under cl 14.2(1)(b) of the Direction?

Consideration:-

The primary judge’s approach was to first identify what it was that the Tribunal overlooked before moving to consider whether it was material.

The primary judge found (at [64]) that:

...the only evidence said to touch upon the effect of non-revocation on Ms Dunasemant were the last two sentences of her statement: “I am not getting any younger. I would be blessed to keep my son close to me.”

The primary judge dismissed this evidence as merely a statement of the obvious and raising more questions than it answered.

The primary judge concluded that Mr Dunasemant’s representations concerning the effect of non-revocation were no more than bare assertions unsupported by any probative material.

The primary judge’s conclusion is not borne out by a review of the material that was before the Tribunal. The material that touched on the critical issue was not limited to the last two sentences of Ms Dunasemant’s statement.

The relevant material before the Tribunal included the following documents: Mr Dunasemant’s Personal Circumstances Form (PCF), Mr Dunasemant’s Request for Revocation (RFR), Mr Dunasemant’s Statement of Facts, Issues, and Contentions (SFIC) and the Minister’s SFIC. Each of these documents formed part of the material before the Tribunal, as required by s 500(6F)(c) of the Act.

In his PCF, Mr Dunasemant included his mother’s details in the list of his family members. In answer to the question which asked for a description of the impact that cancellation would have, or has had, on his family, Mr Dunasemant said:

"It is distressing to my family because the strength of my family ties to Australia and the fact that we are all close and they would all be emotionally distraught by my removal."

In his RFR, Mr Dunasemant expressly contended that other consideration (b), being the strength, nature and duration of his ties to Australia, weighed strongly in favour of revocation, partly because of the effect non-revocation would have on the his immediate family in Australia (including his mother).

Mr Dunasemant’s SFIC included the following:

Primary Consideration 3 – Expectations of the Australian Community

52. The Applicant accepts that the Tribunal is required to approach it’s consideration of this primary consideration in the way endorsed by Charlesworth J in FYBR v Minister for Home Affairs [2019] FCAFC 185. That is, Direction 79 deems that the Australian community would expect the Applicant to forego the privilege of residing in Australia, but that it is for the Tribunal, in accordance with the principles prescribed by paragraph 6.3 of the Direction, to determine how much weight should be given to that expectation.

53. The Applicant submits that having regard to paragraphs 6.3(5) and 6.3(7) of Direction 79 and:

...
d) the consequences of non-revocation for the Applicant’s other immediate family members (as discussed below),


minimal weight should be placed on this primary consideration in determining whether to revoke the mandatory cancellation of the Applicant’s visa.

Mr Dunasemant went on to expressly submit in his SFIC that his mother would be significantly adversely impacted by a non-revocation decision.

56. In relation to the matters prescribed by s 14.1(b) of the Direction, we submit that the Applicant has extremely strong social and family links to Australian citizen [sic] and permanent residents, including:

a) having resided in Australia for over 18 years;

b) having all of his immediate family (children, mother and brother) live in Australia;

c) having worked in Australia for most of the period between 2002 and 2016.


57. Further, we submit that the following members of the Applicant’s immediate family in Australia would be significantly adversely effected [sic] by a

non-revocation decision:

a) the Applicant’s mother, Maria Dunasemant;

b) the Applicant’s brother, Neco Dunasemant; and

c) the Applicant’s ex-partner, Cara Dwyer.


58. In the premises, we submit that this consideration weighs heavily in favour of revocation.

In the Minister’s SFIC, under the heading “Other considerations”, subheading “Strength, nature and duration of ties”, the Minister said:-

50. Separately from the minor aged children discussed above, the applicant has a family network in Australia including his mother, brother and other distant relatives (T31/128). Whilst it is acknowledged that these family members may suffer some emotional hardship if the applicant were to remain in New Zealand, there is no evidence that these family members are supported by the applicant ...

This portion of the Minister’s SFIC was extracted by the primary judge at [37]. The primary judge observed that it is difficult to see how the Tribunal could have fallen into jurisdictional error by failing to consider a “mere possibility” of emotional hardship (at [39]).

The Minister’s SFIC however continues:

51. Overall, the Minister accepts that this consideration weighs in favour of the applicant, however contends that it does not outweigh the protection of the Australian community or the expectations of the Australian community.
The Minister accepted that other consideration (b) – strength, nature and duration of ties – weighed in favour of Mr Dunasemant. Read in context, as a response to Mr Dunasemant’s SFIC, and in combination, [50] - [51] of the Minister’s SFIC support Mr Dunasemant’s submission on the appeal that the Minister had conceded that Ms Dunasemant as a family member would be impacted by non-revocation. While the Minister did not concede anything as to the nature or extent of such hardship, the Minister’s concession was not limited to a “mere possibility” of emotional hardship.

Against this background we return to Ms Dunasemant’s statement. The primary judge’s reading of the final two sentences of Ms Dunasemant’s statement did not adequately take into account the full context provided by what is said earlier in the statement. The statement comprises two pages. The following parts of the statement are important in contextualising the final two sentences “I am not getting any younger. I would be blessed to keep my son close to me.”

...I have always been the sole parent of all my children. I Have had no family support in raising my sons on my own. Luke has experienced domestic violence from the womb until age 12 years old. I have always been there for my son, doing my best in the most difficult times.

...

My son Pursued and relationship with Cara Dwyer, they then have 3 children together. Luke and Cara split up but remained on good terms for their children. I have 3 beautiful grandchildren, [T], [A] and [N]. [N] was born with abnormalities of her respiratory system. She has been hospitalized more then 21 times in her short 5 years. Luke has a loving and devoted relationship with his children and would like the opportunity to continue to co -parent with his children in Australia. His children need their father to be present in their lives.

...

Luke has no family support or any form of support if he returns to New Zealand.

Please I pledge that my son will be a valued member of society here in Australia. I ask in gods name that you take all matters into consideration. He has made a mistake, and his family deserve to have their father present. I am not getting any younger. I would appreciate and be blessed to keep my son close to me.
[As written]

Ms Dunasemant says that she is the sole parent to all of her children and that she has always been there for her son. She refers to her grandchildren fondly. She notes that she is employed. She works as a community support worker. It is in that context that she says that she is “not getting any younger” and that she would “be blessed to keep her son close” to her in Australia. Read in context, it is implicit in the final two sentences of Ms Dunasemant’s statement that she is concerned that if Mr Dunasemant is removed, the needs of his three children, including those of the child with chronic health issues, would fall, at least in part, to her. The final two sentences of Ms Dunasemant’s statement are directed to the emotional and practical consequences she would experience if her son is removed.

In concluding that the material in relation to the impact of non-revocation on Ms Dunasemant did not rise above bare assertion, the primary judge also relied on the Jones v Dunkel inference that any evidence that Ms Dunasemant could give would not have assisted her son. The primary judge drew that inference based on the absence of a reference by the Tribunal to Ms Dunasemant being asked a question on the effect her son’s removal would have on her whereas the Tribunal did refer to Ms Dunasemant being asked about the effect on her grandchildren.

The absence of such a reference by the Tribunal might more readily be explained as another manifestation of the Tribunal overlooking, in its entirety, the whole topic of the impact of non-revocation on Ms Dunasemant, notwithstanding that it was a topic which the Tribunal was required to consider given that it was relevant and was the subject of representations made by Mr Dunasemant. The Tribunal’s reference to Ms Dunasemant being asked a question about the impact on her grandchildren was in the context of the Tribunal expressly considering the best interests of minor children in Australia as a primary consideration under the Direction and one to which the Tribunal attached moderate weight.

Even if the inference drawn by the primary judge was available on the information to which the primary judge had regard, it cannot safely stand when the final two sentences of Ms Dunasemant’s statement are read in the context of the statement as a whole.

The representations that were made and the material that was before the Tribunal, including the statement of Ms Dunasemant, required the Tribunal to make a finding on the nature and extent of the hardship claim. The Tribunal’s error was to completely overlook the issue of the hardship to Mr Dunasemant’s mother.

It follows that in determining the weight to be given to primary consideration (c), the Tribunal did not take into account a factor that it was obliged to weigh in the balance, a representation having been made on the point that was clearly articulated and supported by material that was before the Tribunal. The primary judge concluded that the Tribunal’s error was not material when regard was had to the Tribunal’s opinion on the weight to be attached to the protection and expectations of the Australian community ([68]) but did not grapple with the submission that if the hardship claim in respect of Ms Dunasemant had been considered in the context of primary consideration (c), the Tribunal could have given this primary consideration less weight in its assessment of factors against revocation.

As for primary consideration (c), so too for other consideration (b), in overlooking the issue entirely, the Tribunal failed to consider a representation that had been clearly articulated and which was supported by material that was before the Tribunal. If the hardship claim in respect of Ms Dunasemant had been considered in the context of other consideration (b), the Tribunal could have given this primary consideration even more weight in its assessment of factors in favour of revocation.

In this way, the Tribunal’s failure to consider the hardship claim was relevant to the way in which the Tribunal attributed weight to primary consideration (c) and other consideration (b) in the exercise of its function under s 501CA(4)(b)(ii) and realistically could have resulted in the Tribunal reaching a different conclusion as to whether there was another reason to revoke the cancellation decision.

Conclusion:-

For these reasons, we have concluded that the Tribunal’s error was material and that ground 1 should be allowed. In light of our conclusion on ground 1, it is not necessary to determine the leave application in respect of the new grounds of appeal or the application to adduce further evidence.

 

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ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (9 February 2022)

Intro:-

This is an appeal from the Full Court of the Federal Court of Australia.

Facts:-

Between 1977 and 2017, Mr Jamsek and Mr Whitby ("the Respondents") were engaged as truck drivers by the second appellant's predecessors in business and subsequently by the second appellant itself. That business has undergone several changes of ownership during the period of the respondents' engagements.

The respondents were initially engaged as employees of the company and drove trucks provided by the company. However, in late 1985 or early 1986, the company insisted that it would no longer employ the respondents, and would continue to use their services only if they purchased their trucks and entered into contracts to carry goods for the company. The respondents agreed to the new arrangement and each of Mr Jamsek and Mr Whitby set up a partnership with his wife. Those partnerships purchased trucks from the company and executed a written agreement with the company for the provision of delivery services. Thereafter, the respondents made deliveries as requested by the company. Each partnership invoiced the company for the delivery services provided, and was paid by it for those services. Part of the revenue earned was used to meet the partnerships' costs of operating the trucks. The net revenue earned was declared as partnership income and split between husband and wife for the purposes of income tax.

The 1993 contract and subsequent rate reviews

In 1993, Mr Whitby (for himself and on behalf of Mr Jamsek) and several other drivers approached the company and negotiated a new arrangement under which the partnerships would invoice the company on an hourly rate on the basis of a nine‑hour working day, although it was understood, and the contract provided, that actual hours worked might vary. The partnerships executed a written "Contract Carriers Arrangement" with the company in July 1993 ("the 1993 contract").

The 1993 contract included the following terms:

"1. The Contractors so named are:

a) Separate legal entities both from each other and THORN LIGHTING.

b) Able to work for other parties, providing that such work is not detrimental to either THORN LIGHTING or THORN LIGHTING customers.

c) To present an invoice for work carried out in the preceding week.

2. THORN LIGHTING and the Contractors have agreed:

1. The Contractors will:

a) Undertake carriage of goods as reasonably directed

b) Comply with all Acts, Ordinances, Regulations and By‑laws relating to the registration, third party insurance and general operation of the vehicle within New South Wales.

c) Pay all legal costs, such as tax and duty, payable in respect of the vehicle and keep the vehicle in a mechanically sound, road worthy and clean condition.

d) Be responsible for the vehicle equipment and gear, the safe loading of the vehicle and the securing and weather protection of the load.

e) Exercise all reasonable care and diligence in the carriage and safe keeping of the goods in their charge. Account for all goods by use of run sheets and return of signed delivery dockets or similar documents.

f) Hold at all times and on request produce for inspection, a current driver's licence issued in respect of a vehicle of the class of the vehicle in use and immediately notify THORN LIGHTING if the licence is suspended or cancelled.

g) Not engage or use the services of a driver for the vehicle without prior and continuing approval by THORN LIGHTING. Such driver is to be correctly licensed, suitably dressed, and in all other respects entirely to the satisfaction of THORN LIGHTING.

h) Obtain and maintain a public liability insurance policy for an amount of $2,000,000 or greater in respect of any liability incurred by the Contractor in performance of work for THORN LIGHTING.

Obtain and maintain a comprehensive motor insurance policy over the vehicle including cover for amount of $5,000,000 or greater for third party property damage in respect of one accident.

Ensure that such policies include an indemnity of THORN LIGHTING for any action of the Contractor to which the policy applies.

Produce on request a current receipted copy of such policies.

j) Immediately report any accident to the person in charge of the NSW Branch Warehouse and to attend to any legal requirements at the scene or subsequent to the accident.

k) Not offer his vehicle for sale with any guarantee of either continuity of work for THORN LIGHTING, or implied acceptance by THORN LIGHTING of the purchaser."

The agreement between the partnerships and the company was terminated in 2017. The respondents then commenced proceedings in the Federal Court of Australia seeking declarations in respect of statutory entitlements alleged to be owed to them as employees of the company pursuant to the Fair Work Act 2009 (Cth) ("the FW Act"), the Superannuation Guarantee (Administration) Act 1992 (Cth) ("the SGA Act") and the Long Service Leave Act 1955 (NSW) ("the LSL Act"). In the proceedings, a question arose as to whether the respondents were "employees" for the purposes of the FW Act and the SGA Act and/or "workers" for the purposes of the LSL Act.

The primary judge (Thawley J) concluded that the respondents were not employees of the company, and instead were independent contractors. The Full Court of the Federal Court of Australia (Perram, Wigney and Anderson JJ) allowed the respondents' appeal, holding that the respondents were employees of the company.

The reasons of the Full Court suffered from two errors of approach. The first was the significant attention devoted by that Court (and indeed the primary judge) to the manner in which the parties actually conducted themselves over the decades of their relationship. That was thought to be necessary because those courts took the view that a proper characterisation of the totality of the relationship required a consideration of how the parties' contract played out in practice. The second was the Full Court's reasoning that the disparity in bargaining power between the parties affected the contract pursuant to which the partnerships were engaged, so that the "reality" of the relationship between the company and each respondent was one of employment.

The reasoning of the Full Court cannot be sustained. The respondents were not employed by the company. They were members of partnerships which carried on the business of providing delivery services to the company. The appeal to this Court must be allowed.

This appeal was heard together with the appeal in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd ("CFMMEU v Personnel Contracting"). In the present case, as in CFMMEU v Personnel Contracting, there was no suggestion that the contract between the parties was a sham or had been varied or otherwise displaced by conduct of the parties. There was no claim by the respondents to set aside the contract either under statute or pursuant to equitable doctrines such as those relating to unconscionable conduct. In these circumstances, and for the reasons given in CFMMEU v Personnel Contracting, the character of the relationship between the parties in this case was to be determined by reference to the rights and duties created by the written agreement which comprehensively regulated that relationship. The circumstance that entry into the contract between the company and the partnerships may have been brought about by the exercise of superior bargaining power by the company did not alter the meaning and effect of the contract.

Issue:-

Were the Respondents employees of the Appellant pursuant to Fair Work Act 2009 (Cth) ("the FW Act"), the Superannuation Guarantee (Administration) Act 1992 (Cth) ("the SGA Act") and the Long Service Leave Act 1955 (NSW) ("the LSL Act")?

Consideration:-

The appellants emphasised the finding of the primary judge that the respondents, as members of their partnerships, were engaged in the conduct of their own businesses. That finding was clearly correct. Given that there is no basis for holding that the respondents were otherwise associated with the company, there is no basis for concluding that the respondents were employed by the company. The only relationship between the respondents and the company was that the respondents were members of partnerships that had agreed to make deliveries for the company.

On the orthodox approach to the interpretation of contracts, regard may be had to the circumstances surrounding the making of a contract[94]. The 1986 contract between the partnerships and the company came to be made because of the company's insistence that the only ongoing relationship between the respondents and the company would be that established by the 1986 contract and that the partnerships would own and operate the trucks which would transport the company's deliveries. Given that the genesis of the contract was the company's refusal to continue to employ the respondents as drivers, and the respondents' evident acceptance of that refusal, it is difficult to see how there could be any doubt that the respondents were thereafter no longer employees of the company.

The circumstance that this state of affairs was brought about by the exercise of superior bargaining power by the company weighed heavily with the Full Court; but that circumstance has no bearing on the meaning and effect of the bargains that were struck between the partnerships and the company. To say this is not to suggest that disparities in bargaining power may not give rise to injustices that call for a legal remedy. The law in Australia does provide remedies for such injustices under both the general law and statute. Those remedies were not invoked in this case. As has been noted earlier, the respondents did not claim that the contracts with the partnerships were shams. Nor did they seek to make a claim under statute or otherwise to challenge the validity of the contracts that were made by the partnerships. In Australia, claims of sham cannot be made by stealth under the obscurantist guise of a search for the "reality" of the situation[95].

Even if this disguised submission of sham were to be countenanced, the reality of the situation is that the partnerships, and not the respondents individually, owned and operated the trucks. The partnerships contracted with the company and invoiced the company for delivery services provided by the operation of the trucks. The partnerships earned income from the company, incurred expenses associated with the ownership and operation of the trucks, and took advantage of tax benefits of the structure. It is not possible to square the contention that the respondents were not conducting a business of their own as partners with the circumstance that, for many years, they enjoyed the advantages of splitting the income generated by the business conducted by the partnerships with their fellow partners.

Conclusion:-

The appeal should be allowed, and the orders made by the Full Court on 16 July 2020 be set aside.

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Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (9 February 2022)

Intro:-

This is an appeal from the Full Court of the Federal Court of Australia.

Facts:-

The Respondent (trading as "Construct") is a labour-hire company based in Perth, which engages workers to supply their labour to building clients. Construct's major client was Hanssen Pty Ltd ("Hanssen"), a builder of high‑rise residential apartments and offices[1].

In 2016, Mr McCourt was a 22‑year‑old British backpacker who had travelled to Australia on a working holiday visa. Seeking a source of income, and with limited prior work experience as a part‑time brick‑layer and in hospitality, Mr McCourt obtained a "white card", which enabled him to work on construction sites. He contacted Construct and attended an interview on 25 July 2016. At the interview, Mr McCourt indicated that he was prepared to do any construction work, and was available to start work immediately. He confirmed to the Construct representative that he owned a hard hat, steel‑capped boots and hi‑vis clothing, having purchased them for less than $100 in the hope of finding construction work. He was offered a role and presented with paperwork to sign. Among the documents he signed was an Administrative Services Agreement ("ASA"), which described Mr McCourt as a "self‑employed contractor".

The day after Mr McCourt's interview, Construct contacted him to offer him work at Hanssen's Concerto project site beginning the following day. When he arrived on site, Mr McCourt was given the Hanssen Site Safety Induction Form and Hanssen Site Rules. He was told that he would be supervised primarily by a leading hand employed by Hanssen, Ms O'Grady[3]. Mr McCourt did not sign a contract with Hanssen.

Mr McCourt worked at the Concerto site between 27 July and 6 November 2016. While on site, Mr McCourt worked under the supervision and direction of Hanssen supervisors, including Ms O'Grady. Although Construct staff sometimes conducted site visits, they never directed Mr McCourt in the performance of work, except to draw his attention to workplace health and safety issues in the manner of his work. Mr McCourt's primary tasks were described as follows:

"For a period of months, he engages in basic labouring tasks; he takes out the bins, cleans workspaces and moves materials. He is not an entrepreneur nor a skilled artisan; he is paid by the hour, and when at work, is told what to do and how to do it."

On 6 November 2016, Mr McCourt finished work at the Concerto site and left Perth. He returned the following March and, on 14 March 2017, recommenced work on the Concerto project. On 26 June 2017, he began working on Hanssen's Aire project, performing work that was substantially identical to the Concerto project. On 30 June 2017, Mr McCourt was told that he was not to continue working at the Aire project. Thereafter, Mr McCourt did not receive any work from Construct.

Mr McCourt and the Construction, Forestry, Maritime, Mining and Energy Union commenced proceedings against Construct seeking orders for compensation and penalties pursuant to ss 545, 546 and 547 of the Fair Work Act 2009 (Cth) ("the Act"). The claims were made on the basis that Construct had not paid Mr McCourt according to his entitlement, as an employee of Construct, to payment in accordance with the Building and Construction General On-site Award 2010. Similar orders were sought against Hanssen, on the basis that it was liable as an accessory for Construct's alleged breaches.

The ASA and related documents

Given its central importance to the characterisation of Mr McCourt's relationship with Construct, it is desirable to set out the terms of the ASA in full:

"RECITAL

Construct is an administrative services agency operating essentially within the building industry, liaising between builders (or their contractors) (both described as 'builders') and self‑employed contractors for the provision of labour by self‑employed contractors to builders and supplying to the self-employed contractors financial administrative services.

The Contractor requires Construct to keep the Contractor informed of opportunities for the Contractor to provide builders with labour services and to provide the Contractor with financial administrative support to enable the Contractor to concentrate on maximising the supply of quality labour to builders.

IT IS AGREED

1. Construct's Responsibilities

Construct shall:

(a) Use reasonable endeavours to keep informed of opportunities in the building industry for the Contractor to supply labour to builders identified by Construct;

(b) Inform the Contractor when, and on what basis, an opportunity arises for the Contractor to supply labour to a builder;

(c) Liaise between builders and the Contractor regarding the means by which the Contractor shall supply labour to such builders, including the duration that the builder requires such labour, the place at which labour is to be supplied, the daily hours of work during which labour is to be supplied and any other terms and conditions upon which labour is to be supplied by the Contractor to the builder;

(d) Subject to performance by the Contractor of his or its obligations under this Agreement, underwrite payment to the Contractor, within 7 days of receipt of an invoice from the Contractor, of all payment rates payable by the builder in respect of the supply of labour to the builder by the Contractor, including payment rates negotiated by the Contractor directly with the builder;

(e) Complete administrative forms and undertake necessary correspondence with Government authorities as may be required under any law of Western Australia relating to labour supplied to builders under this agreement, other than the completion by the Contractor of his taxation returns, including any instalment activity statement or business activity statements.

2. Construct's Rights

Construct shall be entitled to:

(a) Negotiate with any builder a payment rate for the supply by the Contractor of labour to the builder, provided that the Contractor shall be at liberty to negotiate with the builder an increase in the payment rate and any other terms and conditions upon which labour is to be supplied by the Contractor to the builder, subject to the Contractor properly performing his obligations under this Agreement;

(b) Negotiate with the builder the basis upon which Construct is to be remunerated on a commission basis as a percentage of the agreed payment rate for the supply of services by the Contractor to the builder;

(c) Negotiate with the builder for remuneration in respect of any increase in the payment rate negotiated directly by the Contractor with the builder;

(d) Withhold from the Contractor payment of any monies reasonably required by Construct to compensate it for any claim made against Construct by the builder in respect of the supply of labour by the Contractor to the builder.

3. The Contractor's Warranties

The Contractor warrants that:

(a) He has provided Construct with true and accurate information regarding his work experience and capability for the supply of labour to builders;

(b) He is self‑employed;

(c) He does not require Construct to guarantee the Contractor work of any type or of any duration;

(d) That he shall keep Construct fully informed of the outcome of negotiations with the builder by the Contractor in order to ensure that Construct is promptly and accurately informed of any higher rate of payment agreed by the builder and the value of any other terms and conditions agreed with the builder by the Contractor;

(e) Construct shall not be liable to pay the Contractor any amounts in respect of annual leave, sick leave, long service leave or any other statutory entitlement required in an employer-employee relationship.

4. The Contractor's Obligations

The Contractor shall:

(a) Co-operate in all respects with Construct and the builder in the supply of labour to the Builder;

(b) Ensure accurate records are maintained as to the amount of labour supplied to the builder by the Contractor;

(c) Attend at any building site as agreed with the Builder at the time required by the Builder, and shall supply labour to the Builder (subject to notification under clause 5(c)) for the duration required by the Builder in a safe, competent and diligent manner;

(d) Indemnify Construct against any breach by the Contractor of sub‑paragraph 4(c) hereof;

(e) Supply such tools of trade and equipment, for safety or other reasons, as may be required by the builder, in respect of which the Contractor is solely responsible;

(f) Possess all statutory certification relevant to the supply of labour, and shall ensure that these certificates be both current and valid in Western Australia;

(g) In the event that the Contractor reasonably considers that his safety is endangered by conditions on the building site, promptly report the unsafe conditions to Worksafe if unable to have the unsafe conditions rectified by the builder promptly;

(h) Not represent himself as being an employee of Construct at any time or otherwise represent himself as authorised to act on behalf of Construct other than strictly under the terms of this Agreement.

5. The Contractor's Rights

The Contractor is entitled to:

(a) Receive payment from Construct of all amounts negotiated with the builder by Construct and the Contractor within seven (7) days of the issue by the Contractor of a valid invoice delivered to Construct by the Contractor for the supply of labour to the builder by the Contractor;

(b) Refuse to accept any offer of work from a builder;

(c) Notify the builder and Construct on 4 hours notice that he is no longer available for the supply of labour under the terms of this Agreement."

A number of observations may be made here about the terms of the ASA. First, Recital A might be said to suggest that Construct was engaged merely in seeking out business opportunities for Mr McCourt. But the operative terms of the ASA and the factual matrix in which it was made make it clear that Construct's business was more substantial than introducing labourers to builders. Under cl 2(a), Construct was empowered to fix Mr McCourt's remuneration, subject to the possibility that he might negotiate extra benefits from Hanssen. And under cll 1(d) and 5(a), Construct assumed the obligation to pay Mr McCourt for his work with Hanssen.

Once Mr McCourt accepted an offer of work, his core obligation pursuant to cl 4(a) was to "[c]o‑operate in all respects with Construct and [Hanssen] in the supply of labour to [Hanssen]". This included, pursuant to cl 4(c), the obligations to attend Hanssen's worksite at the nominated time, and to supply labour to Hanssen "for the duration required by [Hanssen] in a safe, competent and diligent manner".

Similar obligations were contained in Construct's Contractor Safety Induction Manual signed by Mr McCourt. By that document, which was found by the Full Court to have contractual force between Mr McCourt and Construct, Mr McCourt agreed, inter alia: to follow all worksite safety rules and procedures given by Construct's "host client", and to report any safety hazards, incidents or injuries to the site supervisor or administrator and to Construct.

Before both the primary judge and the Full Court, the facts surrounding the work practices of Construct and Hanssen, and the specific arrangements vis-à-vis Mr McCourt, were canvassed at length. Given there was no challenge to the validity of the ASA nor any suggestion that the contract had been varied by conduct, a review of how the parties went about discharging their obligations to each other after execution of the ASA was unwarranted.

The primary judge applied a "multifactorial approach" to the question whether Mr McCourt was an employee or an independent contractor, in which both the terms of the ASA and the work practices imposed by each of Construct and Hanssen were relevant.

The primary judge's conclusion was upheld on appeal by the Full Court of the Federal Court of Australia.

Issue:-

Was Mr McCourt an employee of Construct for the purposes of Fair Work Act, 2009 (Cth)?

Consideration:-

The employment relationship and the contract of employment

In Commonwealth Bank of Australia v Barker[69], French CJ, Bell and Keane JJ said:

"The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment."

An employment relationship will not always be defined exclusively by a contract between the parties]. Historically, the employment relationship was recognised and regulated by the law before the law of contract came to govern the relationship. An employment relationship, though principally based in contract, may be affected by statutory provisions and by awards made under statutes It may also be that aspects of the way in which a relationship plays out "on the ground" are relevant for specific statutory purposes. So, for example, a statute may operate upon an expectation generated in one party by the conduct of another, even though that expectation does not give rise to a binding agreement.

A contract of employment may be partly oral and partly in writing, or there may be cases where subsequent agreement or conduct effects a variation to the terms of the original contract or gives rise to an estoppel or waiver. In such cases, it may be that the imposition by a putative employer of its work practices upon the putative employee manifests the employer's contractual right of control over the work situation; or a putative employee's acceptance of the exercise of power may show that the putative employer has been ceded the right to impose such practices.

While there may be cases where the rights and duties of the parties are not found exclusively within a written contract, this was not such a case. In cases such as the present, where the terms of the parties' relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship.

Not only is there no reason why, subject to statutory provisions or awards, established legal rights and obligations in a contract that is entirely in writing should not exclusively determine the relationship between the parties but there is every reason why they should. The "only kinds of rights with which courts of justice are concerned are legal rights". The employment relationship with which the common law is concerned must be a legal relationship. It is not a social or psychological concept like friendship. There is nothing artificial about limiting the consideration of legal relationships to legal concepts such as rights and duties. By contrast, there is nothing of concern to the law that would require treating the relationship between the parties as affected by circumstances, facts, or occurrences that otherwise have no bearing upon legal rights.

In Narich Pty Ltd v Commissioner of Pay‑roll Tax, approving the earlier decision in Australian Mutual Provident Society v Chaplin, in the course of delivering the reasons of the Privy Council dismissing the appeal from the Supreme Court of New South Wales, Lord Brandon of Oakbrook said that:

"where there is a written contract between the parties whose relationship is in issue, a court is confined, in determining the nature of that relationship, to a consideration of the terms, express or implied, of that contract in the light of the circumstances surrounding the making of it; and it is not entitled to consider also the manner in which the parties subsequently acted in pursuance of such contract."

The one exception to this principle was said to be the case where subsequent conduct could be shown to have varied the terms of the contract[79]. To similar effect, in Connelly v Wells, following Narich, Gleeson CJ said:

"Where the relationship between two persons is founded in contract, the character of the relationship depends upon the meaning and effect of the contract. In the absence of a suggestion that a contract was varied after it was originally made, its meaning and effect must be determined as at the time it was entered into. If the contract is in writing, then the court which is considering the nature of the relationship between the parties is directed to an examination of the terms of the written agreement in the light of the circumstances surrounding its making."

Numerous other Australian courts have continued to recognise as authoritative the decisions in Chaplin and Narich.

Uncertainty in relation to whether a relationship is one of employment may sometimes be unavoidable. It is the task of the courts to promote certainty with respect to a relationship of such fundamental importance. Especially is this so where the parties have taken legitimate steps to avoid uncertainty in their relationship. The parties' legitimate freedom to agree upon the rights and duties which constitute their relationship should not be misunderstood. It does not extend to attaching a "label" to describe their relationship which is inconsistent with the rights and duties otherwise set forth. To do so would be to elevate their freedom to a power to alter the operation of statute law to suit themselves or, as is more likely, to suit the interests of the party with the greater bargaining power.

Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties' rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute, there is no occasion to seek to determine the character of the parties' relationship by a wide‑ranging review of the entire history of the parties' dealings. Such a review is neither necessary nor appropriate because the task of the court is to enforce the parties' rights and obligations, not to form a view as to what a fair adjustment of the parties' rights might require.

In this respect, the principles governing the interpretation of a contract of employment are no different from those that govern the interpretation of contracts generally. The view to the contrary, which has been taken in the United Kingdom, cannot stand with the statements of the law in Chaplin and Narich.

The parties' description of their relationship

To say that the legal character of a relationship between persons is to be determined by the rights and obligations which are established by the parties' written contract is distinctly not to say that the "label" which the parties may have chosen to describe their relationship is determinative of, or even relevant to, that characterisation.

Subject to statute, under the common law the parties are free to agree upon the rights and obligations by which they are to be bound. But the determination of the character of the relationship constituted by those rights and obligations is a matter for the court.

As a matter of principle, however, it is difficult to see how the expression by the parties of their opinion as to the character of their relationship can assist the court, whose task it is to characterise their relationship by reference to their rights and duties. Generally speaking, the opinion of the parties on a matter of law is irrelevant. Even if it be accepted that there may be cases where descriptive language chosen by the parties can shed light on the objective understanding of the operative provisions of their contract, the cases where the parties' description of their status or relationship will be helpful to the court in ascertaining their rights and duties will be rare.

Having made these general observations, one may turn now to consider the relationship between the present parties.

Mr McCourt served in the business of Construct

In this Court, Construct was content to disavow the notion that Mr McCourt was carrying on his own business. That disavowal might be said to be no more than recognition that any suggestion to that effect was unsustainable. As both the primary judge and the Full Court appreciated, Mr McCourt could not sensibly be said to have been carrying on business on his own account. That was plainly correct, notwithstanding the language used in the ASA to describe Mr McCourt's occupation which suggested otherwise.

Construct submitted that it was "simply a finder of labour". But that ignores the complex suite of rights and obligations of Construct vis-à-vis Mr McCourt that had been established under the ASA. Construct was authorised: to fix Mr McCourt's reward for his work (cl 2(a)); to act as Mr McCourt's paymaster (cll 1(d), 2(d)); and to terminate Mr McCourt's engagement should he fail in any respect to obey the directions of Construct or Hanssen (see cl 4(a), (c)). And, as will be seen, by cl 4(a) Construct retained a right of control over Mr McCourt that was fundamental to its business as a labour‑hire agency. There would be no reason for the existence of such obligations if Construct were not in the business of labour hire, but rather in the business of "introducing" suppliers of labour to builders and leaving those parties to sort their own affairs.

In terms of the test suggested by Windeyer J in Marshall, it is impossible to say that Mr McCourt was in business on his own account. The core of Mr McCourt's obligation to Construct under the ASA was his promise to work as directed by Construct or by its customer. Mr McCourt's obligation to work was meaningful only because the benefit of that promise was ventured by Construct as an asset of its labour‑hire business.

Mr McCourt worked subject to the control of Construct

Like the "own business/employer's business" dichotomy, the existence of a right of control by a putative employer over the activities of the putative employee serves to sensitise one to the subservient and dependent nature of the work of the employee, so as to assist in an assessment of whether a relationship is properly to be regarded as a contract of service rather than a contract for services.

Construct submitted that control was a necessary, though not sufficient, condition of a contract of service, citing Zuijs v Wirth Brothers Pty Ltd[127]. It was submitted that Hanssen alone supervised and directed every aspect of Mr McCourt's work, and it was emphasised that Construct was not entitled, under either the LHA or the ASA, to enter Hanssen's site and issue directions to Mr McCourt regarding the performance of his work. So much may be accepted. But this Court in Stevens, and indeed in Zuijs itself, emphasised that it is the right of a person to control the work of the other, rather than the detail of the actual exercise of control, which serves to indicate that a relationship is one of employer and employee.

Under the ASA, Construct was entitled to determine for whom Mr McCourt would work. Once assigned to a client, Mr McCourt was obliged by cl 4(a) to "[c]o-operate in all respects with Construct and the builder in the supply of labour to the Builder". That obligation must be understood in context. It was not directed towards the carrying out of any particular task, or the effecting of any specific result, for Hanssen. There was no suggestion that the work Mr McCourt agreed to do would involve the exercise of any discretion on his part, either as to what he would do or as to how he would do it. Mr McCourt's obligation to "supply ... labour" in cooperation with Hanssen necessarily meant that he agreed, for the duration of the assignment, to work in accordance with Hanssen's directions. He was simply not permitted to do otherwise. Had Mr McCourt breached cl 4(a), Construct (not Hanssen) would have been entitled to terminate the ASA.

Mr McCourt's performance of that obligation was unambiguously central to Construct's business of supplying labour to builders. In referring Mr McCourt to Hanssen, Construct was exercising, and commercialising, its right to control the work that Mr McCourt would do and how he would do it. The marketability of Construct's services as a labour‑hire agency turned on its ability to supply compliant labour; without that subservience, that labour would be of no use to Construct's clients. That right of control was therefore the key asset of Construct's business. Its significance was not diminished by the circumstance that the minutiae of Mr McCourt's performance of daily tasks were at the direction of Hanssen. Indeed, the right of control held by Construct over Mr McCourt explains why there was no need for any contractual relationship between Mr McCourt and Hanssen in order to support Hanssen's ability to issue day‑to‑day directions to Mr McCourt.

Mr McCourt had no right to exercise any control over what work he was to do and how that work was to be carried out. That state of affairs was attributable to the ASA, by which Mr McCourt's work was subordinated to Construct's right of control.

Mr McCourt's designation as "the Contractor" is of no moment

The ASA described Mr McCourt as "the Contractor". But the effect of the rights and duties created by the ASA was that Mr McCourt was engaged by Construct to serve Construct in its business. The rights and duties agreed between Construct and Mr McCourt leave no room for ambiguity as to the character of that relationship. For the reasons stated above, that the parties have described their relationship a certain way cannot change the character of the relationship established by their rights and obligations.

Conclusion

Under the ASA, Mr McCourt promised Construct to work as directed by Construct and by Construct's customer, Hanssen. Mr McCourt was entitled to be paid by Construct in return for the work he performed pursuant to that promise. That promise to work for Construct's customer, and his entitlement to be paid for that work, were at the core of Construct's business of providing labour to its customers. The right to control the provision of Mr McCourt's labour was an essential asset of that business. Mr McCourt's performance of work for, and at the direction of, Hanssen was a direct result of the deployment by Construct of this asset in the course of its ongoing relationship with its customer.

In these circumstances, it is impossible to conclude other than that Mr McCourt's work was dependent upon, and subservient to, Construct's business. That being so, Mr McCourt's relationship with Construct is rightly characterised as a contract of service rather than a contract for services. Mr McCourt was Construct's employee.

The Federal Court has dealt Facebook a blow, ruling the social media giant operates in Australia – and legal action against it can go ahead

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Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 (21 December 2021)

Intro:-

The Applicant filed a Summons for judicial review on the sole ground that Judge Williams had committed jurisdictional error by failing to undertake the process of assessment specified in s 66(2) of the CSP Act.

Facts:-

Ms Emma-Jane Stanley (the Applicant) pleaded guilty to various offences against the Firearms Act 1996 (NSW), including: five counts of knowingly taking part in the supply of a firearm to a person unauthorised to possess it (s 51(1)(a)); two counts of knowingly taking part in the supply of a firearm part (s 51BA(1)); and three counts of having in possession for supply a shortened firearm (s 61(2)(c)). On 8 December 2020, the Applicant was sentenced in the Local Court of New South Wales to an aggregate term of three years’ imprisonment with a non-parole period of two years.

The Applicant appealed against the severity of that sentence to the District Court of New South Wales, pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW), such appeal being conducted “by way of a rehearing on the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings”: s 17. The Applicant was granted conditional bail pending the determination of her appeal.

At the hearing of the appeal before Judge Williams of the District Court on 28 May 2021, the Applicant submitted that it was appropriate for her sentence of imprisonment to be served in the community by way of an “intensive correction order” (ICO) pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act). This was opposed by the Crown. Section 66 of the CSP Act provides that:-

“(1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.

(2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.

(3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.”

On 17 June 2021, Judge Williams dismissed the Applicant’s appeal, holding that it was not appropriate for the Applicant’s sentence to be served by way of an ICO.

It is not necessary to summarise the reasons of Judge Williams in any detail. They were lengthy and involved a careful review of the evidence and the submissions that were made before her, consistent with the nature of the appellate task her Honour was performing. Her Honour indicated that she had:-

“given very close consideration to the matters that were put before the Court, particularly in respect to the appropriateness of an ICO. I am very aware of the law which prescribes the availability of an ICO including such cases as Pullen, Fangaloka, Karout and Casella. I am aware of the three step process that must be followed by the Court in assessing whether or not an ICO is appropriate.”

For the purposes of this Summons for judicial review, it suffices to summarise what was said in support of the First Respondent’s submission in this Court that implicitly her Honour had complied with s 66(2). The First Respondent pointed to the fact that in assessing objective seriousness, her Honour had said:-

“Overall I take into account that last point, that the guns were not stored properly, and that they were in close proximity to the ammunition. Moreover the residence in which the appellant allowed the firearms to be kept is a suburban street in Dubbo, xxxx Drive which in my view is completely within the city limits of Dubbo which is a large regional city of course in New South Wales. They were not stored on a remote rural property which might have had them further away from the real danger which they presented to the community.”

In determining the length of the sentence to be imposed, her Honour took into account in the sentencing exercise “particularly general deterrence which must loom large particularly specific deterrence and of course community safety and denunciation”: at p 28. Her Honour concluded that the three-year sentence imposed by the Local Court was an appropriate term.

Her Honour then concluded:-

“The third and final task that the Court must do in assessing whether or not an ICO is an appropriate term of imprisonment is to determine whether or not an ICO is an appropriate sentence taking into account all of the factors including community safety and rehabilitation. I have as I said given very close consideration to this. In my view community safety is of paramount consideration. There are a substantial number of firearms. The firearms in my view pose [sic] a significant risk to the people of Dubbo.

Taking into account all of those matters I am not of the view that it is appropriate for the matter, for this sentence to be served by way of an Intensive Corrections Order.”

Because of my ultimate conclusion, there is no need in the present circumstances to make a definitive finding as to whether or not Judge Williams in fact engaged in the assessment process although I am inclined to agree with Beech-Jones JA’s assessment that her Honour did not do so.

These reasons proceed on the basis that no such assessment process was in fact undertaken. Had it been undertaken, absent some denial of procedural fairness, it could not have been impugned for jurisdictional error even if the Court took the view that the judge’s assessment was wrong. There was no suggestion of a denial of procedural fairness.

On the assumption, therefore, that the assessment process was not in fact undertaken, it is necessary to consider whether or not that posited failure constituted jurisdictional error.

Issue:-

Whilst Judge Williams undoubtedly considered whether an intensive correction order was appropriate in the circumstances of the case, her Honour did not, in the course of her consideration, conduct the assessment contemplated by s 66(2) of the CSP Act. As such, did her failure to do so amount to jurisdictional error?

Consideration:-

The starting point is, of course, that there is no right of appeal, even by way of leave, from a decision of a District Court judge hearing an appeal in a criminal matter from the Local Court. So much is reinforced by s 176 of the District Court Act 1973 (NSW): see, for example, Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [8]; see also and more generally, Gibson v Commissioner of Police (NSW) (2020) 102 NSWLR 900; [2020] NSWCA 160 at [20]–[21].

In Anderson v Judges of District Court (NSW) (1992) 27 NSWLR 701 at 718 (Anderson), Kirby P (with whom Meagher and Sheller JJA agreed) observed in relation to s 146 of the Justices Act, expressed in identical terms to s 176 of the District Court Act, that:-

“This Court may not simply ignore s 146 of the Justices Act. It is the provision of the law made with the authority of Parliament. It forbids intervention in the nature of certiorari in a case such as the present. If it did not, and this case were open to be brought up on certiorari, s 146 would be a dead letter despite its survival in the statute. Every error of law would circumvent its operation. Such a conclusion is incompatible with the purpose of Parliament as expressed in s 146. That section must be given effect. At least it operates in a case such as this where no excess of jurisdiction is shown and where no procedural unfairness has been demonstrated to permit this Court to avoid its prohibition.”

Where a privative clause such as s 176 of the District Court Act is engaged and no appeal (or no further appeal) is provided for from a decision of the District Court, the only other means of review available to a party seeking to challenge that decision requires the identification of jurisdictional error. The important legacy of Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (Kirk) lies in the High Court’s constitutional insistence that judicial review for jurisdictional error may not be validly circumscribed or circumvented by privative clauses. In that case, the relevant clause was s 179(1) of the Industrial Relations Act 1996 (NSW).

“Jurisdictional error” is, thus, a concept of fundamental importance to the work of this Court. It is the only avenue available, for example, to a person such as the Applicant who has been convicted of an offence in the Local Court of New South Wales, was unsuccessful in his or her appeal to the District Court of New South Wales and who wishes to seek further review. Thus, perhaps somewhat paradoxically, a not insubstantial portion of the subject matter of the work of the New South Wales Court of Appeal (as opposed to the Court of Criminal Appeal) is criminal in nature, coming to this Court through the invocation of its supervisory jurisdiction. Proceedings for judicial review of this kind have been held, at least for certain purposes, not to change their character from civil to criminal despite the underlying subject matter: Klewer v Director of Public Prosecutions (NSW) (No 2) (2020) 101 NSWLR 864; [2020] NSWCA 69 at [38]–[44], [107]–[113] where it was held that proceedings for judicial review were not “criminal proceedings” within the meaning of s 8(9) of the Vexatious Proceedings Act 2008 (NSW); cf Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; [2003] HCA 49 at [121].

Before Kirk, there was Craig (Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58). Decided just over 25 years ago, Craig ensured that, in Australian law, “jurisdictional error” remained conceptually discrete from other errors of law: at 177–180. This was by way of contrast with the position in England where, in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, there had been an elision of jurisdictional error and error of law: see also O’Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 at 278; R v Hull University Visitor, Ex parte Page [1992] UKHL 12; [1993] AC 682 at 701–702.

Whilst jurisdictional error may be described as an error of law, not every error of law will be “jurisdictional” or amount to jurisdictional error. This is not a matter of semantics. It is of cardinal importance. An error of law made within jurisdiction is not a jurisdictional error: Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218 at [31]–[33], [48]–[53], [64] (Gibson) citing Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v New South Wales (2014) 242 IR 338; [2014] NSWCA 116; Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379.

As Basten JA (with whom Bathurst CJ and Beazley P agreed) observed in Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 at [42], echoing the observations of Kirby P in Anderson set out above:-

“If every error of law constituted jurisdictional error, particularly in the case of a court such as the District Court, judicial review would transmogrify into an appeal for error of law, without regard to the requirement that certiorari is available only for error of law on the face of the record, and, in the case of a privative clause, only where an error is properly characterised as jurisdictional.”

To adopt an overly broad and open-ended conception of jurisdictional error would be illegitimately to emasculate the operation of privative clauses, denuding them of their intended effect, contrary to the requirements of purposive statutory construction.

The continuing vitality of the concept of jurisdictional error in Australian law as confirmed in Craig has not been matched by clarity in its definition or elucidation and, as the High Court was to point out some 15 years after Craig, eight different categories of jurisdictional error had been identified to that point in time: see Kirk at [71], citing M Aronson, “Jurisdictional Error Without the Tears” in M Groves and H P Lee, Australian Administrative Law: Fundamentals, Principles and Doctrines (2007, Cambridge University Press) at 335–336.

The lack of clarity as to what constitutes jurisdictional error was partly explained by the Kirk majority’s frank acknowledgement that the content of the concept of jurisdictional error has evolved over time and is not necessarily characterised or marked by logical coherence: at [62]–[63]. This was in part attributed to the varied usages and meanings of the word “jurisdiction”. Also acknowledged at [64] was the realist view of Professor Jaffe, in “Judicial Review: Constitutional and Jurisdictional Fact” (1957) 70 Harvard Law Review 953 at 963, that denominating some questions as "jurisdictional":

"is almost entirely functional: it is used to validate review when review is felt to be necessary ... If it is understood that the word 'jurisdiction' is not a metaphysical absolute but simply expresses the gravity of the error, it would seem that this is a concept for which we must have a word and for which use of the hallowed word is justified."

A “rigid taxonomy of jurisdictional error” was eschewed by the majority in Kirk (at [73]), which was also at pains to point out that the three examples of jurisdictional error instanced in Craig were “just that – examples”.

A further dimension and level of complexity has arguably been added to the jurisprudence in this area by Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [31] (Hossain) where, building on the joint judgment of Gageler and Keane JJ in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 at [23]–[32], the concept of materiality was identified as relevant to a consideration of whether a jurisdictional error will result in invalidity; see also at [66] per Edelman J. In other words, it may now be necessary to speak of a tri-partite division between jurisdictional error the commission of which results in the invalidity of a decision or order; non-material jurisdictional error which does not; and error of law within jurisdiction (non-jurisdictional error). In the present case, no question of materiality arose. The debate was simply whether or not the error identified and relied upon by the Applicant was jurisdictional error.

Consistent with the notion that the class of what constitutes “jurisdictional error” continues to evolve and is not closed, in their sixth edition of Judicial Review of Administrative Action and Government Liability (2017, Lawbook Co) at [1.140] Professors Aronson, Groves and Weeks proffered a revised catalogue of 10 categories of jurisdictional error, with categories nine and 10 having been added to the list of eight categories compiled by Professor Aronson and referred to in Kirk at [71]. The revised list is as follows:

“1. A mistaken assertion or denial of the very existence of jurisdiction.

2. A misapprehension or disregard of the nature or limits of the decision-maker’s functions or powers.

3. Acting wholly or partly outside the general area of the decision-maker's jurisdiction, by entertaining issues or making the types of decisions or orders which are forbidden under any circumstances. An example would be a civil court trying a criminal charge.

4. Mistakes as to the existence of a jurisdictional fact or other requirement when the relevant Act treats that fact or requirement as something which must exist objectively as a condition precedent to the validity of the challenged decision. The fact or requirement is not such a condition precedent if it suffices for the decision-maker to come to its own opinion or satisfaction as to whether it exists. In that case, the opinion is challengeable only on the other grounds in this catalogue.

5. Disregarding relevant considerations or paying regard to irrelevant considerations, if the proper construction of the relevant Act is that such errors should result in invalidity.

6. Some, but not all, errors of law. In particular, if the decision-maker is an inferior or other legally qualified adjudicative body, the error is likely to be jurisdictional only if it amounts to a misconception of the nature of the function being performed or of the body’s powers.

7. Acting in bad faith.

8. Breaching the hearing or bias rules of natural justice.

9. Making decisions that are seriously illogical, irrational or unreasonable.

10. Committing a mistake which justifies the conclusion that the repository of power simply failed to perform his or her job, even though the mistake may not easily fit within any of the above categories.”

The scope for “terminological entanglement” was noticed by Kiefel CJ, Gageler and Keane JJ in Hossain at [17] and cases have continued to multiply as to what is and what is not jurisdictional error, with different views being taken at the intermediate appellate level: for recent examples in this Court, contrast Gibson at [31]–[33], [42] and Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83; Wany and Quinn. See also Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253 at [34].

Such differences highlight the “difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction” (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163]) but, as cases such as the present illustrate, and as Leeming JA explained in Quinn, the drawing of the line may have immense practical significance. In that context, non-compliance with mandatory language in a statute is only the starting point of the analysis as to whether or not jurisdictional error has been committed.

As the plurality pointed out in Hossain at [27], statutory construction is critical to a consideration of the question; see also at [72] per Edelman J. As with any exercise in statutory construction, close attention must be given to the statute as a whole and statutory context: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69].

Particular techniques of legislative drafting may assist in demarcating where the line is to be drawn between jurisdictional and non-jurisdictional error through the use of clear formulae such as “a relevant order is not invalidated by a failure to comply with this section” or some variation thereon. Examples of the use of such formulae are furnished by ss 5(4), 17I(2), 17J(4), 25F(8), 53A(5) and 100B(2C) of the CSP Act and non-compliance even in the face of unqualified mandatory language such as “must ensure”, “must cause”, “must indicate and ... must record”, and “must indicate ... and make a written record” employed in these sections will not constitute jurisdictional error

On the issue of legislative drafting, it should also be observed that infraction of a statutory prohibition which expressly conditions the Court’s jurisdiction on the existence of a particular objective fact will more obviously amount to jurisdictional error

The composite expression “identify, formulate and determine” a “relevant issue” seems to me aptly to capture what a sentencing judge is entrusted to do under s 66(2) of the CSP Act, namely to identify a relevant issue, being the offender’s risk of reoffending according to whether or not he or she is incarcerated or permitted to serve the sentence in the community, to formulate the competing matters bearing upon that risk and to determine the issue. This is an exercise in which the commission of demonstrable error would “not ordinarily constitute jurisdictional error” according to the Kirk majority.

One question which arises is what the majority meant by the phrase “not ordinarily”. In my view, although it is not entirely clear, their Honours may have here been allowing for the possibility that the conduct of the exercise entrusted to the Court, being an exercise within jurisdiction, could nonetheless amount to jurisdictional error if, for example, it was tainted by a denial of procedural fairness. That is not this case. Any other interpretation of the expression “not ordinarily” in the passage from Kirk would be to erode further the already limited certainty as to the meaning of the concept of “jurisdictional error”.

On the assumption that Judge Williams did not assess the Applicant’s risk of reoffending according to whether her sentence was to be served in prison or in the community under an intensive correction order, in accordance with s 66(2) of the CSP Act, such a demonstrable error was not jurisdictional in nature.

The nature of what was essentially propounded as a jurisdictional fact, namely the undertaking of what I have earlier described as “the assessment process” embedded in s 66(2), also points strongly against a conclusion that non-performance of it amounted to jurisdictional error. In Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 at [57], French CJ observed, citing Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297 at 303–304; [1997] HCA 10, that:-

“When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court.”

The assessment process embedded in s 66(2) of the CSP Act is a quintessential example of a matter which involves the making of “assessment and value judgments on the part of the decision-maker” who, in this case and context, is the sentencing judge.

Although the principal thrust of the Applicant’s argument was that undertaking the assessment contemplated by s 66(2) was a condition of the exercise of jurisdiction — an argument which I have rejected — to the extent it was put on the alternative basis that there was jurisdictional error based upon a misconception by the judge of her function – an argument that has found favour with McCallum JA – I would also reject that argument.

The function being performed by the District Court was hearing and determining the Applicant’s appeal against sentence. As noted at [16] above, that function was conferred by s 11 of the Crimes (Appeal and Review) Act.

Judge Williams was acutely aware of the Applicant’s contention that her sentence should be served in the community, subject to an intensive correction order: see, for example, the passages from her Honour’s judgment set out at [8], [9] and [11] above. I do not doubt that her Honour gave that matter earnest consideration. That her Honour may not have expressly or even impliedly made an assessment of how the Applicant’s risk of reoffending would be impacted by reference to where and how the sentence was served (an exercise she was not asked by the parties to undertake and in respect of which no submissions were made to her Honour) did not, in my view, mean that she misunderstood the nature of her function. Nor did it mean that community safety was not taken into account as the paramount consideration (see s 66(1) of the CSP Act). Judge Williams’ reasons make it explicit that that matter was considered together with other factors identified in s 3A of the CSP Act, as required by s 66(3). It was certainly not something that was “swept aside”: cf, McCallum JA at [176]. If there was any error as to how community safety was taken into account, it was an error within jurisdiction, not amenable to judicial review by this Court in its supervisory jurisdiction.

Her Honour’s function was dictated by the jurisdiction she was exercising, namely the hearing of an appeal de novo as to the sentence imposed on the Applicant in the Local Court, and a consideration of whether the sentence should have been made the subject of an intensive correction order. Her Honour performed and did not misconceive this function, let alone fundamentally so. To hold that a judge has “fundamentally misconceived” his or her function is a serious conclusion which should, in my view, only be made in a clear case. A misconception of function is not the simple corollary of a failure to comply with a statutory provision; were it otherwise, every such failure would translate into a jurisdictional error.

Conclusion:-

The summons for judicial review should be dismissed. Each party should bear her own costs of the proceedings.

 

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The New CTRS (Commercial Tenancy Relief Scheme) Regulations released by Victorian Government and are now up on the Vic legislation website at https://www.legislation.vic.gov.au/as-made/statutory-rules/commercial-tenancy-relief-scheme-regulations-2022

In brief:

On 16 January 2022 the extended CTRS took effect and will end on 15 March 2022.

Eligible businesses (tenants) that make a compliant rent relief request under the extended Scheme will be eligible for relief retrospectively from 16 January 2022.

The definition of SME changes to ‘small entity’, defined as an entity with turnover (including group) of less than $10 million.

Eligibility can be assessed by comparing turnover from January 2020 to turnover from January 2022 or if the business closed for a week or more during January 2020 because of an event or circumstances outside the tenant’s usual operations and started trading again by 31 January 2022, the tenant can compare December 2019 turnover with December 2021.

Alternative tests are available for different circumstances.

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Arsalan v Rixon; Nguyen v Cassim [2021] HCA 40 (8 December 2021)

Intro:-

Mr Rixon and Mr Cassim, the respondents, were involved in car accidents. The appellants, by their insurers, admitted liability for the accidents. The appellants are liable for the costs of repairing Mr Rixon's and Mr Cassim's damaged cars, respectively an Audi A3 sedan and a 2012 BMW 535i sedan. These appeals concern further liability of the appellants for Mr Rixon's and Mr Cassim's costs of hiring substitute cars while their damaged cars were being repaired. The question is one that has arisen many times in a variety of different circumstances in local courts across Australia. For which, if any, substitute vehicles can victims of negligence recover hire costs incurred during the period that their vehicles are being repaired?

Facts:-

Mr Rixon's case

Mr Rixon owned an Audi A3 sedan which was damaged in a collision with a car driven negligently by Mr Arsalan. The repair of Mr Rixon's car took around two months. During that period of repair, Mr Rixon hired a replacement car of the same make and model. The hiring charge was $12,829.91.

In the Local Court of New South Wales, the magistrate found that Mr Rixon needed a replacement car to travel to work, to drop off and collect a child at school, and for general errands. Mr Rixon also gave evidence that he needed a European car for reasons of safety but the magistrate found that Mr Rixon's safety concerns were a preference rather than a need. The magistrate also held that the hire costs incurred by Mr Rixon were based upon a credit hire rate which, it was said, did not represent the market rate of hire of the car. Mr Rixon was held to be entitled only to recover a hire charge of $4,226.25, which was the market rate of hiring a Toyota Corolla.

An appeal by Mr Rixon to the Supreme Court of New South Wales was dismissed by Basten J. A majority of the Court of Appeal of the Supreme Court of New South Wales (White JA and Emmett A‑JA; Meagher JA dissenting) allowed a further appeal by Mr Rixon, concluding that Mr Rixon was entitled to the reasonable hire charges that he incurred. The matter was remitted to the Local Court for assessment of the reasonable hire charge in accordance with the reasons of the Court of Appeal.

Mr Cassim's case

Mr Cassim owned a BMW 535i sedan which was damaged in an accident caused by the negligence of Mr Nguyen. Mr Cassim's case was treated as involving a non‑income‑earning car, although in addition to the use of his car for social and domestic purposes he used it for his home business, which included transporting toilet seat samples. The repair of Mr Cassim's car took 143 days. For 84 days of that period, Mr Cassim hired a Nissan Infiniti Q50 car for $17,158.02.

The magistrate found that Mr Cassim needed his car for ordinary domestic purposes, including shopping and taking his children to sporting engagements, and that the Nissan car he had hired was of slightly lower value than his BMW. Mr Cassim also gave evidence that he "wanted a nice, luxury car". He accepted that any car with five seats would likely have been "feasible" but said that he "preferred to have a car similar to [his own]". The magistrate also found that a Toyota Corolla would have met Mr Cassim's needs for a total hire cost of $7,476, but rejected the contention that Mr Cassim's claim for recovery should be limited to the market rate of hire for a Toyota Corolla on the basis that it was not a car of "equivalent value" to Mr Cassim's BMW. The magistrate awarded Mr Cassim as damages the full amount of hire costs that he had incurred.

An appeal by Mr Nguyen to the Supreme Court of New South Wales was allowed by Basten J. His Honour substituted an award of damages for the hire costs of $7,476, representing the hire costs of a Toyota Corolla for the relevant period. A further appeal by Mr Cassim to the Court of Appeal was allowed by a majority (White JA and Emmett A‑JA; Meagher JA dissenting), who reinstated the award of hire costs determined by the magistrate.

Issues:-

1) Did Mr Rixon and Mr Cassim suffer heads of damage of physical inconvenience and loss of amenity: and

2) was it unreasonable for them to take steps to mitigate both aspects of their loss by the hire, at a reasonable rate, of an equivalent car for a reasonable period of repair?

Consideration:-

Ground 1

"Loss of use" is not a head of damage

Where a plaintiff's chattel is damaged as a result of the negligence of a defendant, the plaintiff will generally be entitled to damages for the costs of repair and for consequential loss. Some of the authorities in this field speak of "loss of use" as if that were, by itself, a head of damage. But, putting aside the different considerations raised by cases where a defendant has obtained the benefit of the use of the plaintiff's chattel, the mere reference to the loss of use of a vehicle, or the loss of the availability of a vehicle for use, is inadequate because it does not identify the manner or extent of any loss to a plaintiff. An assessment of consequential loss always requires the identification of the manner in which the loss of use of a chattel has adversely affected the plaintiff.

A decision relied upon by the parties to these appeals was The "Mediana". In that case, damages were claimed for "loss of use" of the plaintiffs' damaged lightship during a period of repair in which the plaintiffs deployed a spare lightship. Although Lord Halsbury referred to the "loss of the use" of the vesse, he also relied upon the principle that he had articulated in an earlier decision, in which he had focused upon the detriment to the plaintiffs arising from the loss of use, being the delay or impairment of the progress of the works. In The "Mediana", the loss was the inconvenience of no longer having a spare lightship available during the period of repair, the "margin of safety" which should be valued at the "expense of having [the spare] ready".

The loss or detriment to owners from being without a chattel, for which damages were awarded in The "Mediana", can obviously also arise where no substitute or spare is available. As Meagher JA said in the Court of Appeal in these proceedings, even where no substitute chattel is available or is hired, it is unquestionable that damages can still be awarded. But, in those circumstances, the damages are not quantified by reference to the costs of hiring an alternative vehicle or the costs of maintaining a spare, since they were not incurred and do not reflect the loss or detriment which the owner sustained[. In older cases involving the loss of use of a ship where a substitute was not available or hired and no other loss was established, one approach was to award interest on the depreciated capital value of the ship for the period of repair because the detriment from the loss of use was the damaged ship's "capital value [being] infructuous for the time being, even though by special effort more benefit was got out of other ships, in which other capital was invested, than would otherwise have been the case". That older approach has been refined in some modern cases where the value to the owner is not confined to the "money tied up in the chattel" as interest on the capital value but can include expenses thrown away and an allowance for depreciation.

Physical inconvenience and loss of amenity of use of a chattel

In the extremely common circumstances that gave rise to these appeals, involving negligent damage to a plaintiff's vehicle which is used for convenience and pleasure, it has been suggested that underlying the extensive case law recognising compensation for the consequences of the loss of use of a vehicle is that the plaintiff has been "deprived of the convenience or pleasure" that they would derive from that use. That simple proposition was, in part, disputed on these appeals. But, for the reasons given below, it should be accepted.

It was rightly common ground on these appeals that the consequential loss suffered by Mr Rixon and Mr Cassim included the "inconvenience" of not having access to their cars during the period of repair. A large body of case law supports the recognition of this type of loss, although it is commonly described as "physical inconvenience" to contrast it with "mere inconvenience, such as annoyance and loss of temper, or vexation, or for being disappointed in a particular thing which you have set your mind upon". For property torts, this "mere inconvenience" is generally treated as the basis for damages under the different head of loss of amenity of use of property although the boundary between these heads of "physical inconvenience" and loss of amenity of use is neither clear nor precise because "all inconvenience has to include some mental element".

The appellants also accepted that loss of amenity might be available for some torts but they denied that the law recognises loss of amenity as recoverable loss for torts generally, even where that loss is within the scope of the duty and is not too remote. The appellants submitted that loss of amenity of use was not a recoverable type of loss where the plaintiff's chattel was damaged as a result of the defendant's negligence.

The appellants' submission should not be accepted. There is no justification to restrict the recoverable heads of damage for consequential loss caused by the negligent infringement of a person's property right so that the lost amenity of use is excluded. In its concern with the consequences of a tortious act, the compensatory principle aims to provide the injured party with "compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if ... the tort had not been committed". This general principle has the basic goal to undo, by monetary equivalent, the consequences of the wrong experienced by the plaintiff so far as is reasonable. The lost amenity of use of a negligently damaged chattel can be experienced as a consequence of a wrong. The course of precedent and the close relationship between the heads of damage of physical inconvenience and loss of amenity also support the principled basis for recognition of loss of amenity of use as a head of damage for negligent damage to a property right.

As a matter of precedent, loss of amenity of use of property has been recognised for negligent damage to land, where damages for physical inconvenience have been coupled with damages for the loss of amenity where the wrong caused the plaintiffs' lives to be "disrupted and their enjoyment of their home significantly reduced". The same principle has been recognised in damages for conversion involving loss of enjoyment of a hobby. Further, in a decision subsequently followed in Australia, the House of Lords recognised that, for the tort of nuisance, the loss of the amenity value of use of land to a plaintiff was recoverable separately from the diminution in market value of the land.

Although no clear authority has recognised loss of amenity of use consequent upon negligent damage to the plaintiff's chattel as a head of damage in addition to physical inconvenience, such recognition is consistent with the broad recognition of loss of amenity of use in other instances of damage to property. Indeed, the lack of any clear boundary between the heads of damage for physical inconvenience and loss of amenity means that it is often convenient to quantify physical inconvenience and the loss of amenity of use of property together as part of a single award of general damages.

The irrelevance to these heads of damage of any concept of "need"

The magistrate in Mr Rixon's case focused upon whether the plaintiff had a "need" for a replacement car. The magistrate did not identify Mr Rixon's heads of damage as physical inconvenience and loss of amenity of use of the car. Instead, the magistrate's focus on Mr Rixon's "need" naturally directed attention away from loss of amenity of use as a head of damage.

The primary judge in these appeals, Basten J, also followed that approach from the Court of Appeal in Anthanasopoulos. But the principles of damages concerned with the "need" for services in circumstances in which services have been provided gratuitously by another cannot be transplanted to replace an analysis of the real loss that has been suffered as a result of damage to a chattel, especially in circumstances in which a gratuitous replacement is not available. Indeed, in a case in which a plaintiff obtained an equivalent replacement vehicle from a hire company without any costs, it was held that the plaintiff was not entitled to damages for the notional hire costs.

The scope of the concept of "need" is also highly uncertain. Does a plaintiff have a "need" to drive to work if leaving earlier to walk to work could make them healthier and happier? Or, to use the example given by senior counsel for the respondents, does a "need" extend to having a radio in the hire car? Or power steering, ABS brakes, and air‑conditioning? Would a tiny car with three wheels suffice for the convenience of transport for a week? The import of this loose concept of "need" into questions of recovery of the hire costs incurred is a distraction from the proper focus upon the heads of damage identified by the plaintiff – such as physical inconvenience and loss of amenity of use – and the onus upon the defendant to establish the unreasonableness of the plaintiff's steps to attempt to mitigate that damage by the hire of a substitute vehicle.

Ground 2

Mitigation of loss

Where a plaintiff acts in an attempt to reduce a loss, the onus shifts to the defendant to show that the acts actually taken by the plaintiff were unreasonable acts of mitigation. Unless the plaintiff's actions are shown to be unreasonable, costs that are incurred in an attempt to mitigate loss caused by wrongdoing become, themselves, a head of damage that can be recovered. Even if the costs incurred by the plaintiff are greater than the loss that was attempted to be mitigated, those costs will be recoverable other than to the extent that they are shown to be unreasonable[30].

Proof of loss and proof of unreasonable steps in mitigation

Legal principles for proof of loss and mitigation

Although a plaintiff must prove their loss, it will not usually be difficult for a plaintiff to establish heads of damage of physical inconvenience and loss of amenity of use consequential upon their lost ability to use their vehicle. There will, however, be exceptional cases where such loss to the plaintiff will be non‑existent or so slight that the hire of a replacement vehicle will not be accepted to be a step in mitigation. Such exceptional cases might include where the plaintiff was hospitalised or abroad during the relevant period of repair, or where the damaged vehicle could have been replaced from idle stock within the plaintiff's fleet of vehicles.

Apart from such cases, it will usually be sufficient for a plaintiff to identify a past suite of purposes for which the damaged vehicle was used in order to justify an inference that the plaintiff would have put the vehicle to the same uses during the period of repair and would be otherwise inconvenienced. As Lord Mustill recognised in Giles v Thompson, it will not be hard to infer that a plaintiff who incurs the considerable expense of running a private vehicle does so for reasons of convenience. Similarly, it will usually be sufficient to infer that a plaintiff derives amenity from the various functions used in their vehicle, particularly an expensive, prestige vehicle in circumstances in which the plaintiff incurred significant capital or ongoing expenditure on that prestige vehicle.

The usual ease with which a plaintiff may establish heads of damage of physical inconvenience and loss of amenity of use explains why in Dimond v Lovell and in Lagden v O'Connor their Lordships assumed that it would generally be reasonable for a plaintiff to hire an equivalent vehicle, subject to any dispute about the unreasonableness of the quantum of the hire costs. For instance, in Lagden v O'Connor, Lord Hope assumed that a plaintiff would generally be able to recover as damages the costs of hire of an equivalent vehicle, but if "a larger or more powerful car was hired although vehicles equivalent to the damaged car were reasonably available at less cost – the amount expended on the hire must be reduced to the amount that would have been needed to hire the equivalent".

Conclusion

In the Nguyen v Cassim appeal, the appeal should be dismissed with costs. In the Arsalan v Rixon appeal, order 6 of the orders of the Court of Appeal made on 17 August 2020 in relation to remittal of the matter to the Local Court should be varied to replace the words "plaintiff's damages to be assessed in accordance with the reasons for judgment of the Court of Appeal" with "plaintiff's damages to be assessed in accordance with the reasons for judgment of the High Court of Australia and with the magistrate's reasons as to the credit hire costs", and otherwise the appeal should be dismissed with costs.

 

Added a post 

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (16 January 2022)

Facts:-

The applicant, Mr Djokovic, is a citizen of Serbia. He is currently the world’s number 1 ranked men’s tennis player. Mr Djokovic was issued a Class GG subclass 408 Temporary Activity visa on 18 November 2021 for the purpose of competing in the Australian Open Tennis Championship.

He arrived in Australia on 5 January 2022. Upon his arrival, he was taken to immigration clearance and questioned by officers of the Department of Home Affairs until the early hours of 6 January 2022.

On the same day, his visa was purportedly cancelled by a delegate of the Minister for Home Affairs under s 116(1)(e)(i) of the Migration Act 1958 (Cth) (the Act). That provision is at the centre of the proceeding and is in the following terms:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
...
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i) the health, safety or good order of the Australian community or a segment of the Australian community ...

Subsections (2) and (3) are not relevant.

Mr Djokovic immediately commenced a proceeding in the Federal Circuit and Family Court of Australia (Division 2) seeking to quash the decision to cancel his visa on the ground that the process adopted by the delegate of the Minister for Home Affairs in cancelling the visa was legally unreasonable.

A Judge of the FCFC granted Mr Djokovic interim relief late on 6 January 2022. The matter was set down for final hearing to commence on Monday 10 January 2022. At the hearing on that day, counsel for the Minister for Home Affairs conceded that the process adopted by her delegate was, as Mr Djokovic alleged, legally unreasonable by reason of a denial of procedural fairness, or to use a synonymous phrase and one used in the Act, “natural justice”. As a result, the Court made an order quashing the purported cancellation decision.

Immediately thereafter at the hearing, counsel for the Minister for Home Affairs said that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), the respondent in this proceeding, would be considering whether to exercise the personal power of cancellation (that is a power not capable of being exercised by a delegate of the Minister, but one only for the Minister’s consideration and exercise personally) pursuant to s 133C(3) of the Act.

Sections 133C(3) and (4) are in the following terms:

(3) The Minister may cancel a visa held by a person if:

(a) the Minister is satisfied that a ground for cancelling the visa under section 116 exists; and

(b) the Minister is satisfied that it would be in the public interest to cancel the visa.

Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section).

(4) The rules of natural justice, and the procedures set out in Subdivisions E and F, do not apply to a decision under subsection (3).

As s 133C(4) makes clear, there was no requirement upon the Minister in exercising his powers under s 133C(3) to afford Mr Djokovic natural justice (that is procedural fairness).

Mr Djokovic and those who advised him, having been made aware of the Minister’s intentions, provided material and submissions to the Minister as to why the power in s 133C(3) should not be exercised. Late in the day on Friday 14 January 2022, the Minister exercised his power to cancel the visa relying on s 133C(3). By letter dated that day, the Minister advised Mr Djokovic of that decision, and provided a ten page statement of reasons.

Under the Act, the FCFC and not the Federal Court of Australia had original jurisdiction to hear what is referred to in the Act as a “privative clause decision”: see generally ss 476 and 476A of the Act.

The FCFC then transferred the proceeding to this Court, pursuant to s 153(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). That decision was confirmed by a judge of this Court on the following day, as a result of which the Federal Court has jurisdiction in relation to this proceeding pursuant to s 32AD(3) of the Federal Court of Australia Act 1976 (Cth).

In the meantime, Mr Djokovic had filed in the FCFC an originating application for review of the decision, together with supporting materials. Subsequently, an amended application dated 15 January 2022 was filed in this Court pursuant to leave granted on that day by the Court.

On the same day, pursuant to s 20(1A) of the Federal Court of Australia Act, the Chief Justice directed that the original jurisdiction of the Court in this proceeding be exercised by a Full Court. The Chief Justice explained the reasons for making the direction at the commencement of the hearing on the following day, 16 January.

The application was heard on Sunday, 16 January. At the conclusion of the hearing, the Court made orders dismissing the amended application, with costs, to be agreed or failing agreement to be assessed. The Court said that it would provide written reasons for the making of those orders. These are those reasons.

As will be explained in the reasons below, an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

The Relevant Statutory Provisions

We have set out ss 116(1)(e)(i) and 133C(3) above. The elements of s 133C(3) should be noted: a power or a discretion to cancel a visa (“may cancel a visa”) held by a person; if the Minister is satisfied that a ground for cancellation under s 116 exists; and (separately and in addition) the Minister is satisfied that it would be in the public interest to cancel the visa.

The elements of s 116(1)(e)(i) should be noted. As with ss 133C(3)(a) and (b), the power in s 116 is engaged by or conditioned upon the Minister being satisfied of certain matters, here satisfied of the matters in para (e)(i). Those matters are, relevantly for present purposes, that the presence of the visa holder in Australia is or may be, or might be, a risk to the health, safety or good order of the Australian community or a segment of it.

The state of “satisfaction”

Thus it is not the fact of Mr Djokovic being a risk to the health, safety or good order of the Australian community; rather it is whether the Minister was satisfied that his presence is or may be or would or might be such a risk for the purposes of s 116(1)(e)(i), through s 133C(3).

The satisfaction of the Minister is not an unreviewable personal state of mind. The law is clear as to what is required. If, upon review by a court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds, it will be taken not to be a lawful satisfaction for the purpose of the statute. In such a case the precondition for the exercise of the power will not exist and the decision will be unlawful and will be set aside. That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at 651 [131]

Relevantly, where the satisfaction depends upon satisfaction of a factual state of affairs in particular one involving an opinion, the approach of Latham CJ in R v Connell, of Gibbs J in Buck v Bavone, of Starke J in Boucaut Bay (approved by Windeyer J in Brian Hatch Timber) and of Gummow J in Eshetu should be noted.

Chief Justice Latham in R v Connell approached the matter as presenting the question: “whether or not there was evidence upon which [the decision-maker] could be satisfied that [the] rates were anomalous”.

Justice Gibbs in Buck v Bavone said (amongst other things) the decision-maker must “act in good faith; [he or she] cannot act merely arbitrarily or capriciously” and “where the matter of which the [decision-maker] is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that ... [the] decision could not reasonably have been reached”.

Justice Starke in Boucaut Bay said, amongst other things, that the decision-maker “must not act dishonestly, capriciously or arbitrarily ... So long, however, as the Minister acts upon circumstances ... giving him a rational ground for the belief entertained, then ... the Courts of law cannot and ought not interfere”.

Justice Gummow in Eshetu, after referring to Gibbs J in Buck v Bavone, said the following at at 654 [137]:

.... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question

Findings of fact without relevant evidence or material

Related to the above body of principle is a ground of review, invoked in this proceeding in relation to two of the three grounds of review mounted, that a finding of fact, here connected to the formation of a state of satisfaction, was made in the absence of any evidence or supporting material. The High Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) recently put the matter as follows in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 at [17]:

If the Minister exercises the power conferred by s 501CA(4) [a provision in the Act concerning the Minister’s power to revoke the cancellation of a visa] and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister’s personal or specialised knowledge or by reference to that which is commonly known. By “no evidence” this has traditionally meant “not a skerrick of evidence”.

Illogicality, irrationality and legal unreasonableness

As a statutory jurisdictional condition or jurisdictional fact (cf Aronson et al op cit at 258–260 [5.500]), the satisfaction that the presence of a visa holder may for the purposes of s 116(1)(e) be a relevant risk must be reached on a legally reasonable basis and the discretionary power exercised in accordance with legal reasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at 350–351 [26]–[29], 362 [63] and 370 [88]. At one level such is to take the matter, for the lawfulness of a jurisdictional state of satisfaction, no further than the cases to which we have referred above. The state of satisfaction is a jurisdictional precondition or jurisdictional fact and should be distinguished from the exercise of discretion for which the state of satisfaction is a precondition: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 624–625 [39]–[40].

As Allsop CJ said in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 3–4 [3], [5] and [6], the above statements of principle in Li drew upon and drew together a number of well-known expressions and bodies of principle in giving explanatory (not definitional) content to the concept of legal unreasonableness. Further, as the Court (Allsop CJ, Robertson and Mortimer JJ) said in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at 445–446 [44], the Court in Li identified two different contexts in which the concept of legal unreasonableness has developed: a conclusion after the identification of jurisdictional error of a recognised specie and an “outcome focused” conclusion without any specific jurisdictional error being identified.

That taxonomy should not, however, be taken to mask the interrelationship of result and specific error. Nevertheless here, as shall be seen, the complaints made were directed to identifiable errors: a lack of evidence or material upon which to found central conclusions of fact within the process of reaching a relevant state of satisfaction, illogical or irrational reasoning central to the reaching of the relevant state of satisfaction, and such matters also affecting the exercise of discretion. It was not the applicant’s case that aside from the identified errors the outcome was so overwhelmingly wrong that it must be characterised as unlawful.

The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

The “public interest” for s 133C(3)(b)

The phrase “public interest” is a broad one and especially so when an aspect of the power vested in a Minister responsible to Parliament: Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at 46–48 [39]–[46]; Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; 255 CLR 231. Further, it is to be recalled that the relevant inquiry is as to the lawfulness of the Minister’s satisfaction that it was in the public interest to cancel the visa, the Minister being satisfied of the ground for cancellation under s 116 (see s 133C(3)(a)), here satisfied of the matters in s 116(1)(e)(i).

Issues:-

Ground 1: Whether the Minister's decision was affected by jurisdictional error because the Minister reached the state of satisfaction illogically, irrationally or unreasonably and the discretion to cancel the visa was unreasonably exercised, because the Minister did not consider whether cancelling Mr Djokovic’s visa may itself foster anti-vaccination sentiment in Australia?

Ground 2: Whether it was open to find that the presence of Mr Djokovic in Australia is or may be a risk to the health or good order of the Australian community?

Ground 3: Whether it was open to the Minister to find or conclude that Mr Djokovic had a stance that was well-known on vaccination and that he was opposed to it?

Consideration:-

It is convenient to deal with the grounds in reverse order.

Ground 3

We reject the proposition that it was not open to the Minister to find or conclude that Mr Djokovic had a stance that was well-known on vaccination and that he was opposed to it.

“Attachment H” referred to in the Minister’s reasons was an article entitled “What has Novak Djokovic actually said about vaccines?” which reported that, in April 2020, Mr Djokovic apparently said that he was “opposed to vaccination”. Although he had qualified this by saying that he was “no expert” and “would keep an open mind”, he apparently said that he wanted to have “an option to choose what’s best for my body”. He was reported also to have stated on Facebook that he “wouldn’t want to be forced by someone to take a vaccine” to travel or compete in tournaments. Further, he added that he was “curious about wellbeing and how we can empower our metabolism to be in the best shape to defend against imposters like Covid‑19”. His comments were apparently criticised by the Serbian Government epidemiologist at the time.

Whilst qualified, these views were expressed and publicly known even before there was a COVID-19 vaccine.

Further, there was no issue but that Mr Djokovic was not, by January 2022, vaccinated. It was plainly open to the Minister to infer that Mr Djokovic had for over a year chosen not to be vaccinated since vaccines became available. That he had a reason not to have a vaccination at the time of the decision in January 2022, apparently having contracted COVID‑19 on or about 16 December 2021, did not say anything as to the position for the many months from the availability of vaccines to December 2021. It was plainly open to the Minister to infer that Mr Djokovic had chosen not to be vaccinated because he was opposed to vaccination or did not wish to be vaccinated.

Whilst the Minister had not asked Mr Djokovic about his present attitude to vaccines: D[19] ([53] above), that only meant that there was no express statement to the contrary of what could be inferred to be his attitude up to January 2022. Mr Djokovic had not volunteered any information when interviewed at the airport by officers of the Department of Home Affairs. He did not give evidence of any apparent change of attitude.

It was also open to the Minister to infer that the public would view his attitude as the media had portrayed: that he was unwilling to be vaccinated.

Ground 2

The central proposition of Mr Djokovic’s argument was that the Minister lacked any evidence and cited none that his presence may “foster anti‑vaccination sentiment”. There was no evidence, it was submitted, that he had urged people not to be vaccinated. Nor was there any evidence that in the past his circumstances had fostered such a sentiment in other countries.

However, it was open to infer that it was perceived by the public that Mr Djokovic was not in favour of vaccinations. It was known or at least perceived by the public that he had chosen not to be vaccinated. There was material (in Attachment H) before the Minister and to which he referred in the reasons that anti‑vaccination groups had portrayed Mr Djokovic as a hero and an icon of freedom of choice in relation to being vaccinated.

It is important to recognise, however, that the Minister’s reasons can be seen to encompass the encouragement not only to anti‑vaccination groups, some of whom may have extreme views and some of whom may be a risk to the good order or public order in the community, but also to people who may simply be uncertain or wavering as to whether they will be vaccinated.

The evidence concerning the support or galvanising of the former group concerned the circumstances of the cancellation of Mr Djokovic’s visa by the delegate of the Minister for Home Affairs, rather than Mr Djokovic’s views regarding vaccination. Nevertheless, the evidence did display an affinity of these groups with his views.

The possible influence on the second group comes from common sense and human experience: An iconic world tennis star may influence people of all ages, young or old, but perhaps especially the young and the impressionable, to emulate him. This is not fanciful; it does not need evidence. It is the recognition of human behaviour from a modest familiarity with human experience. Even if Mr Djokovic did not win the Australian Open, the capacity of his presence in Australia playing tennis to encourage those who would emulate or wish to be like him is a rational foundation for the view that he might foster anti‑vaccination sentiment.

There is a question, not explored in argument, as to the extent to which one can or should characterise lawful, even if robust, rallies and protests in the free expression of political or social views (even if unpopular or held only by a few people) as a threat to good order. In the absence of argument or of it being an issue, we do not comment any further on this. Common recent experience does, however, demonstrate that some rallies and demonstrations concerning COVID‑19 and measures to limit movement and activity of the public have involved some violent activity and have been the occasion for the spreading of the disease or at least that is open to be inferred.

It was not irrational for the Minister to be concerned that the asserted support of some anti‑vaccination groups for Mr Djokovic’s apparent position on vaccination may encourage rallies and protests that may lead to heightened community transmission.

Further, there was evidence at D[23] that Mr Djokovic had recently disregarded reasonable public health measures overseas by attending activities unmasked while COVID positive to his knowledge. It was open to infer that this, if emulated, may encourage an attitude of breach of public health regulations.

Ground 1

The Minister cancelled Mr Djokovic’s visa because he was “satisfied” that the presence of Mr Djokovic in Australia may be a risk to the health or good order of the Australian community:

In substance, Mr Djokovic contended that that decision was affected by jurisdictional error because the Minister reached the state of satisfaction illogically, irrationally or unreasonably and the discretion to cancel the visa was unreasonably exercised, because the Minister did not consider whether cancelling Mr Djokovic’s visa may itself foster anti-vaccination sentiment in Australia.

In their written submissions, counsel for Mr Djokovic put their contention as follows (emphasis in original):

The vice with the Minister’s reasoning, on this central premise, is that it involves an irrational, illogical or unreasonable approach to the purported formation of either or both of the requisite states of satisfaction in section 133C(3)(a) and (b), or the exercise of discretion:

(1) to address the prospect of Mr Djokovic’s presence in the Australia (consequent to a non-cancellation decision) “foster[ing] anti-vaccination sentiment”; but

(2) not to address the prospect of the binary alternative outcome (consequent to a cancellation decision that the Minister ultimately selected), being Mr Djokovic’s detention and expulsion from Australia and the attraction of consequential bars to re-entry “foster[ing] anti-vaccination sentiment”, including at least potentially of an equal of not more deep or widespread kind.

It was further contended that “[i]t is even more obvious that a decision to detain and expel Mr Djokovic based on two historic statements about vaccination would be apt to ‘foster anti‑vaccination sentiment’”, in circumstances where the Minister assumed or found that Mr Djokovic posed a negligible COVID-19 risk to others, had a medical reason for not being vaccinated, had entered Australia lawfully and consistently with ATAGI documents and in circumstances where almost every discretionary factor weighed against cancellation.

Ground 1 should be dismissed. It was not necessary for the Minister to consider and weigh in the balance the two “binary” choices contended for by Mr Djokovic. The power to cancel relied upon by the Minister in this case arose once he was “satisfied” that “the presence of [the visa] holder in Australia ... may be ... a risk to ... the health, safety or good order of the Australian community”. The words of the statute direct attention to the “presence” of the visa holder in Australia. No statutory obligation arose to consider what risks may arise if the holder were removed from, or not present in, Australia. The provision cannot be interpreted as requiring the Minister to examine the consequences of cancellation by way of a counterfactual, directed as it is to the considerations of risk by reference to presence.

That the statute does not require such a consideration to be examined does not foreclose the possibility that not to do so in a given circumstance would or might be irrational or unreasonable. However, it is not easy to contemplate such a circumstance. There is nothing by way of logic that demands it, bearing in mind that the statute refers to the consequences of presence of the visa holder in Australia. It may be that there would be an even greater risk to good order or health by the fostering of demonstrations if the visa was cancelled and the erstwhile visa holder removed from Australia, but that says nothing about the risk arising from the visa holder’s presence in Australia, which is the statutory enquiry. The notion that the Minister must, to be logical, examine both hypotheses is only to force the Minister to adopt one way of approaching the exercise of the discretion.

That is not to say that if the Minister chose to examine the risk in the posited counterfactual, he could not do so (given the terms of the provision are directed to presence, it would be in evaluating the public interest or the exercise of the discretion to exercise the power). The Minister would not be prohibited by the section from doing so; and it is not an irrelevant consideration for these purposes in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24.

In any event, the Minister was, because he recognised it in his reasons, aware of the fact that “unrest” in the community occurred following the decision of the Minister for Home Affairs to cancel Mr Djokovic’s visa on the day following his arrival into Australia. At D[46] the Minister said as follows: “I also acknowledge that Mr DJOKOVIC is now in the community, and that some unrest has already occurred, such that it is too late to avoid it. This weighs in my mind against the public interest in cancellation”. Whilst it is far from clear to what event this is a reference, the Minister can be taken to be aware of protests that occurred in Melbourne on 11 January 2022 involving supporters of Mr Djokovic.

The Minister also, at D[44], recited arguments raised by Mr Djokovic’s lawyers as to why he considered it would not be in the public interest to cancel his visa. Those reasons included that cancelling the visa would “be likely to adversely affect Australia’s global reputation and call into question its border security principles and policies”, “prejudice Australia’s economic interests, and jeopardise the viability of Australia continuing to host the Australian Open”, and “create the appearance of politically motivated decision-making”.

Although the Minister did not weigh in the balance the binary choices contended for by Mr Djokovic, it can be taken that he was aware of any number of different consequences that might ensue if the visa were cancelled, including unrest, but that having noted each of those matters referred to, the Minister is to be taken as not having regarded them as something that, within the exercise of his discretion, he regarded as necessary to weigh in the balance of things.

Further, the weighing of the counterfactual as to unrest and encouragement of anti‑vaccination sentiment would not affect the second group of people to whom we have referred as the hesitant or wavering. These people, who may, it can be inferred, be influenced by Mr Djokovic’s presence, would not be influenced relevantly in the way we have described by his absence.

For the above reasons ground 1 must fail.

Further matters

Parliament has made clear in s 116 that the Minister may cancel a visa if he or she is satisfied that presence of its holder in Australia may be a risk to the health or good order of the Australian community. The Minister reached that state of satisfaction on grounds that cannot be said to be irrational or illogical or not based on relevant material. Whether or not others would have formed that state of satisfaction and the state of satisfaction as to the public interest is a consideration not to the point. The relevant states of satisfaction were of matters which involved questions of fact, projections of the future and evaluations in the nature of opinion. As Gummow J said in Eshetu 197 CLR at 654 [137]: “where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question”.

That is the position in this case. Another person in the position of the Minister may have not cancelled Mr Djokovic’s visa. The Minister did. The complaints made in the proceeding do not found a conclusion that the satisfaction of the relevant factors and the exercise of discretion were reached and made unlawfully.

Conclusion:-

The amended application be dismissed with costs, such costs to be agreed or failing agreement assessed.

 

Added a post 

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 7 (15 January 2022)

Intro:-

On 6 January 2022, a delegate of the Minister for Home Affairs purported to decide that the applicant’s visa be cancelled and he be removed from Australia (first decision). To that end, the applicant was immediately placed in detention.

In proceeding No MLG35/2022 wherein Novak Djokavic was applicant and the Minister for Home Affairs was respondent, orders were made on Monday, 10 January 2022 quashing the purported first decision to cancel the visa and that the applicant be released from detention forthwith. The parties were agreed in the making of those orders. The applicant’s visa took effect upon that Order becoming operative and the applicant was released from detention thereafter.

When that Order was made on 10 January 2022, counsel for the respondent informed the Court of his instructions that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs may consider whether to exercise a personal power of cancellation pursuant to sub-section 133C(3) of the Migration Act 1958.

The applicant has furnished submissions and supporting documentation to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs against the exercise of the personal power to cancel his visa.

At about 5:45 p.m., on Friday, 14 January 2022, the respondent, made a decision, purportedly pursuant to s 133C(3) of the Migration Act 1958, to cancel the applicant’s visa, doing so on the stated ground that the power conferred by par 116(1) of the Migration Act 1958 was engaged “on health and good order grounds, on the basis that it was in the public interest to do so” (second decision). The applicant contends that the reasons assigned by the respondent for the making of the second decision are substantively different from those of the delegate who made the first decision.

In a proceeding commenced this day, the applicant seeks to contend that the second decision, purportedly made under s 133C(3) of the Migration Act, is also tainted by material jurisdictional error and should be quashed. The respondent to this proceeding also disputes those contentions.

Facts:-

The applicant, a Serbian citizen, is a professional tennis player of international renown.

On 18 November 2021, the applicant was issued his temporary activity visa.

It does not appear that any provisions or conditions (of the kind which are not uncommonly located, for example, in the Migration Regulations 1994 (Cth) or ministerial directions as may be authorised and made pursuant to s 499 of the Migration Act 1958), expressly proscribed the applicant from travelling to, entering or remaining temporarily in Australia where he had not been vaccinated against Covid-19. The search for any such express proscription lay elsewhere.

Any general express requirement for such vaccination may be located in various documents promulgated by the Australian Technical Advisory Group on Immunisation (ATAGI), a body established by the Commonwealth Department of Health. The first is entitled “ATAGI expanded guidance on acute major medical conditions that warrant a temporary medical exemption relevant for Covid-19 vaccines” that was updated on 26 November 2021. This guidance was augmented by further advice furnished by ATAGI on 14 December 2021 in relation to the definition of the expression “fully vaccinated” as applied, it seems, to “people returning from overseas travel”. While the status of this ‘guidance’ remains to be determined, the court takes judicial notice of the significant impact which the outbreak of this pandemic has had worldwide and in particular, on the Australian economy, its peoples, their livelihoods, their physical and mental health and that these are matters for government policy. So much was accepted by the parties: Evidence Act 1995 (Cth), ss 144(1)(a)-(b), 144(4).

Interim relief was granted to the applicant late on 6 January 2022 and the matter was set down for final hearing to commence on Monday, 10 January 2022 (with a number of interim hearings being conducted on 8-9 January 2022). Ultimately, the parties to that proceeding were agreed in orders quashing the cancellation decision made on 6 January 2022 and for the applicant’s immediate release from detention. However, at the time when those orders were pronounced, counsel for the Minister for Home Affairs quite candidly and properly disclosed to the court his instructions that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs had under active consideration whether the personal power conferred by s 133C(3) of the Migration Act 1958 to cancel the applicant’s visa would be exercised.

At a time that is presently not disclosed by the evidence, the parties to this proceeding engaged in further communications, including that the applicant made detailed submissions (and supplied supporting documentation) to the respondent in relation to the exercise of power pursuant to s 133C(3) of the Migration Act 1958. The respondent took some time to consider those submissions. At about 5:45 p.m. on Friday, 14 January 2022, the respondent made a decision to cancel the applicant’s visa, purportedly doing so in the exercise of power under s 133C(3).

In a media statement made by the respondent, the Minister advised that the exercise of his power under s 133C(3) “on health and good order grounds, on the basis that it was in the public interest to do so.” The Minister further advised that his decision followed orders made by this court on 10 January 2022, quashing the first decision on procedural fairness grounds alone (and as to which it may be noted the parties were agreed in the making of those orders). The Minister further stated that in making his decision he had “carefully considered information provided to me by the Department of Home Affairs, the Australian Border Force and Mr Djokovic.” The Minister expressed the government’s firm commitment “to protecting Australia’s borders, particularly in relation to the Covid-19 pandemic.” Upon the principles considered below he is liable to be placed in detention immediately. In that connexion the applicant would be being treated no differently from any other person who, for the purposes of the Migration Act 1958, answers the description of an unlawful non-citizen.

Having regard to the urgency of the matter, no formal application was filed and upon the undertaking of his senior counsel to file and serve such a document, the court was amenable to the application proceeding on the basis of an oral application.

Judicial Review

Part 8 of the Migration Act 1958 is entitled Judicial review, and comprises ss 474-484. Within Div. 1 of Pt. 8, s 474(1) provides that a “privative clause decision” is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called into question in any court, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. In s 474, the expression “privative clause decision” has the meaning given to it by s 474(2) and includes a decision, relevantly cancelling a consent or permission (including a visa): Migration Act 1958, par 474(3)(c). Further, sub-ss 474(4)-(5) of the Migration Act 1958, identify, by a process of exclusion, certain kinds of decisions made pursuant to specified provisions of the Act and regulations which are not privative clause decisions.

A decision, or a purported decision, made under s 133C(3) to cancel a visa is not excluded and so falls within the definition of a privative clause decision under Pt 8 of the Migration Act 1958.

Subject to s 476 of the Migration Act 1958, this court has the same original jurisdiction in relation to migration decisions as the High Court has under par 75(v) of the Constitution. However, it has no jurisdiction in relation to a primary decision or a privative clause decision.

Being a privative clause decision, the respondent’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error: Migration Act 1958, ss 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision: Migration Act 1958, s 476(2).

The judicial review of an administrative decision is confined to an examination of the legality of the decision under review. It is not a procedure in the nature of an appeal which permits a general review of the decision or a substitution of the decision which the court considers ought to have been made: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41-42; Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36; Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, [23] (French CJ, Bell, Keane and Gordon JJ).

The applicant bears the onus of demonstrating that the approach taken by the decision-maker manifested a legally erroneous view as to what the application for merits review was about such that the decision-maker thereby lacked authority to make the decision that was made: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, [24] (French CJ, Bell, Keane and Gordon JJ) citing Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, [55] (Gleeson CJ and McHugh J).

The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ). The court’s role on judicial review is supervisory and confined: “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.” Attorney-General (NSW) v Quin (1990) 170 CLR 1, [36] (Brennan J); see also, Minister for Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408, [51] (Gageler J).

Applicable principles – visas to travel to, enter and remain in Australia

The object of the Migration Act 1958 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. In the advancement of that object, the Act provides for visas permitting non-citizens to enter or remain in Australia, it being intended that the Act be the only source of a non-citizen’s right to so enter or remain in this country and that the Act should provide for the removal or deportation from Australia of non-citizens whose presence in Australia is not, or is no longer, permitted: Migration Act 1958, s 4.

Within Pt. 2 of the Act, Arrival, presence and departure of persons, Sub-div D of Div. 3, Visas for non-citizens, provides that Visas may be cancelled on certain grounds and comprises ss 116-118. A visa may be cancelled when a non-citizen is in immigration clearance: Act, par 117(1)(b). Section 116, which is of particular import to the present application confers power on the Minister to cancel a visa in certain circumstances and relevantly provides:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a)-(c) . . .

(d) if its holder has not entered Australia or has so entered but has not been immigration cleared – it would be liable to be cancelled under Subdivision C (information given by holder) if its holder had so entered and been immigration cleared; or

(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i) the health, safety or good order of the Australian community or a segment of the Australian community; or

(ii) the health or safety of an individual or individuals; or

(f)-(g) . . . .

(1AA)-(2) . . .

(3) If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

It is convenient to observe s 116 is structured so as to provide, disjunctively, for a series nine broad categories of circumstance in which the statutory power conferred by that section may be engaged. For the purposes of the Act, the term ‘prescribed’ means prescribed by the regulations: Act, s 4. It does not appear that any other provisions in s 116 are relevant.

Ministerial cancellation of visas

Within Div. 3 of Pt. 2, Sub-div. FA, which comprises ss 133A-133F, addresses the subject, Additional personal powers for Minister to cancel visas on section 109 or 116 grounds.

By way of overview, amongst the several personal powers conferred on the Minister under this subdivision of the Migration Act 1958, the provisions are structured in a manner which distinguish between those actions by the Minister to which the rules of natural justice will apply, and to those other actions to which any natural justice requirements are expressly excluded. Repeated features of the provisions of this Sub-div FA include that: (a) the powers to cancel a visa are conferred in imperative terms which require the Minister to exercise the power personally (i.e. such powers are non-delegable); (b) the provisions are expressed in terms making it clear that the power of cancellation is not coupled with a duty to consider whether to exercise certain other powers; (c) in some cases, the scope of the cancellation power is not limited by s 138(4) (and which, although immaterial, removes power in the Minister to vary or revoke a decision to cancel a visa after a record of such decision has been made).

Section 133C is entitled Minister’s personal powers to cancel visas on section 116 grounds and is structured under three subheadings: Action by Minister – natural justice applies; Action by Minister – natural justice does not apply, and; Ministers exercise of power.

Relevantly, ss 133C(3)-(6), each of which fall within the second category above (Action by Minister – natural justice does not apply), read:

(3) The Minister may cancel a visa held by a person if:

(a) the Minister is satisfied that a ground for cancelling the visa under section 116 exist; and

(b) the Minister is satisfied that it would be in the public interest to cancel the visa.

(4) The rules of natural justice, and the procedures set out in Subdivisions E and F do not apply to a decision under subsection (3).

(5) The Minister may cancel a visa under subsection (3) whether or not:

(a) the visa holder was given a notification under section 119 in relation to the ground for cancelling the visa; or

(b) the visa holder responded to any such notification; or

(c) the Administrative Appeals Tribunal . . .

(i) . . .

(ii) . . .

(d) a delegate of the Minister decided to revoke, under subsection 131(1), a cancellation of the visa in accordance with section 128 in relation to the ground.

(6) If a decision was made as mentioned in paragraph 5(c), the power under subsection (3) to cancel a visa is a power to set aside that decision and cancel the visa.

Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section)

In the result, the personal power conferred on the Minister to cancel the visa under s 133C(3) is a power: (a) to which the rules of natural justice do not apply; (b) to which the procedures set out in Sub-div E (notice of cancellation and provision of particulars coupled with invitation to comment within prescribed period et cetera), do not apply; (c) to which the procedures set out in Sub-div F (cancellation for visa holders outside of Australia, provision of particulars coupled with invitation to comment within prescribed period et cetera), do not apply. Where the power is engaged, it may be exercised whether or not the visa holder was: (i) notified pursuant to s 119 that cancellation of the visa was under consideration; (ii) given particulars of the grounds under s 116 upon which it appeared to exist that the Minister may be satisfied the visa might be cancelled, or; (iii) invited to show, within a specified time that such ground did not exist or there was good reason why the visa should not be cancelled.

Above the heading to ss 133C(7)-(10), Minister’s exercise of power, provision is made that the power of cancellation is non-delegable and is not coupled, relevantly, with a duty to consider whether to do so. Further, s 117 which makes provision for the circumstances “When visa may be cancelled” applies, so far as is material to the conferral of power under s 133C(3) and so applies “in the same way as it applies to the cancellation of a visa under section 116.”

Section 133F confers power on the Minister to revoke certain cancellation decisions, including those made under s 133C(3).

As the text of s 133C(3) makes clear, and as is confirmed by its context within the broad range of other cancellation powers conferred by Div. 3 of Pt 2 and the other cancellation powers conferred by the Migration Act 1958 more broadly (including, for example, s 500), the personal discretionary power of cancellation is confined by its express terms.

It is beyond the scope of the present application to determine whether or not the limitations on the power conferred by s 133C(3) serve to magnify or diminish the importance of demonstrating the existence of facts and circumstances upon which the Minister could properly determine that he or she should or should not be satisfied that: (a) a ground for cancelling the visa under s 116 exists, and; (b) it would be in the public interest to cancel the visa. For immediate purposes the self-evidently significant and immediate consequences of cancellation to the visa holder should be observed. But it is in the context of those significant and immediate consequences that demonstration of the existence of facts and circumstances capable of supporting a conclusion that each of the criterion in s 133C(3)(a) and (b) (namely, the existence of a valid ground under s 116 for cancellation together with a conclusion it would be in the public interest to cancel the visa fall for examination) are of such importance.

Upon cancellation, a person who held a valid visa becomes an unlawful non-citizen. Persons who are unlawful non-citizens are to be detained and removed from Australia as soon as is reasonably practicable, including where the non-citizen asks the Minister, in writing, to be so removed: Migration Act, ss 14, 189, 198.

Issue:-

1) Whether the minister's decision is a privative clause decision for the purposes of the Migration Act, 1958 (Cth)?

2) where Minister for Immigration cancels applicant's visa pursuant to personal powers conferred by Section 133C(3) of Migration Act 1958 (Cth), whether Minister is satisfied that a ground for cancelling the visa under section 116 exists and whether it is in the public interest to do so?

3) Whether it was in the administration of justice to transfer the proceeding to the Federal Court?

Consideration

Ground 1

The respondent’s cancellation decision is a privative clause decision for the purposes of s 476 of the Migration Act 1958 and accordingly this court’s jurisdiction is confined by that section.

Unless the applicant, who bears the onus of proof, is able to demonstrate that the respondent’s cancellation decision is tainted by jurisdictional error, the court has no jurisdiction to quash it, or to grant relief in relation to it, and the decision is thus final and conclusive. However, and despite the very wide terms in which it is expressed, a statutory, non-delegable, discretion to cancel a visa pursuant to s 133C(3) is by nature, neither unfettered nor at large.

Ground 2

In NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, 123 FCR 298, French J (as his Honour then was), stated:-:

"In determining whether a decision made in purported exercise of a statutory power is invalid for exceeding that power, it is necessary to consider the provision conferring the power and its constitutional and statutory setting. There is no such thing as an absolute or unlimited statutory power. Every Commonwealth statute and every power it confers is confined by constitutional limits. It must be a law with respect to one of the subjects on which the Commonwealth Parliament may make laws under the Constitution. It cannot confer upon an administrative body the judicial power of the Commonwealth. It cannot transgress constitutional prohibitions. Nor, can it reduce the jurisdiction conferred directly on the High Court by the Constitution although it may, by the width of the powers conferred or duties imposed, affect the range of actions in respect of which that jurisdiction may be invoked. A statute conferring a power which apparently exceeds any of these limits must be read down, if that be possible, so that its operation will be confined within the boundaries of validity - s 15A of the Acts Interpretation Act. In the case of the Migration Act there is additional provision in s 3A for the severance of valid from invalid applications, if any, of an offending provision."

Every statutory power, whether subject to an express condition or not, is confined by the subject matter, scope and purpose of the legislation under which it is conferred - Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505 (Dixon J), see also 496 (Latham CJ); R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49-50; FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 368 (Mason J); Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40 (Mason J); O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); and Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 84 (Gaudron and Gummow JJ). A privative clause, however widely expressed, cannot affect those defining attributes of the statute in which it appears, a fortiori where there is, as in the Migration Act, an express statement of its objects. In addition to these general parameters there may be particular conditions on powers expressly imposed by the terms of the statute.

The Migration Act and the Regulations made under it are replete with powers conferred on the Minister and his officers, as well as upon the Tribunals which the Act establishes. Those powers are variously subject to different kinds of conditions which may be classified as follows:

1. A condition precedent requiring the existence of a fact before the power can be exercised.

2. A condition precedent which requires the decision-maker's reasonable belief or suspicion that a fact exists before the power can be exercised.

3. A condition precedent that requires the decision-maker's state of satisfaction as to the existence of a fact before the power can be exercised.

4. A condition which defines the content of the power by reference to its subject matter.

5. A condition which prescribes procedures incidental to or governing the manner of exercise of the power."

Later, his Honour addressed the nature of a condition which turned upon the formation of ministerial satisfaction stating:

An example of the third kind of condition is the Minister's state of satisfaction that the various criteria for the grant of a visa have been satisfied (s 65). So too is the requirement for ministerial satisfaction of certain matters before a visa can be cancelled (s 116). Indeed the formation of the relevant opinion or state of satisfaction will be a jurisdictional fact (discussed below) so that the power is not validly exercised if it does not exist - Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 ("Eshetu") at 653-657 (Gummow J):

"A determination that the decision-maker is not `satisfied' that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution." (651)

Where a condition on a statutory power requires formation of an opinion or a state of satisfaction as to a matter it is necessary that the opinion or state of satisfaction be based upon a correct interpretation of the relevant statute. In R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, Latham CJ said at 430:

"Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power."

And at p 432:

"If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of the power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide."

See also Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, at 118-119 for a similar statement by Gibbs J and Foley v Padley [1984] HCA 50; (1984) 154 CLR 349, for approval of Latham CJ's opinion by Gibbs CJ at 353 and Brennan J at 370. These and related authorities were cited by Gummow J in Eshetu at 652. Where an official or ministerial opinion or state of satisfaction as to a fact is not expressly required to be reasonably based in fact the Court would not ordinarily review it on the ground of the non-existence of the fact that is its subject. But where it can be shown that the opinion or state of satisfaction rests upon error of law such as misconstruction of the statute then it is not the opinion or state of satisfaction required for the exercise of the power. In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, at 208-209 Gleeson CJ, Gaudron and Hayne JJ also referred with approval to what Latham CJ said in Hetton Bellbird Collieries when they observed that the Full Bench of the Commission would have committed jurisdictional error if, inter alia, it "misunderstood the nature of the opinion it was to form". See also Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421, at 438-439 per Gleeson CJ and Gummow J and Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 182 ALR 657, at 676 (Gaudron J), 698 (Gummow and Hayne JJ) and 742 (Kirby J).

Those principles were applied in AZAFX v Federal Circuit Court of Australia [2016] FCA 1139; (2016) 244 FCR 401, [77]-[78] (Charlesworth J)."

More recently, the High Court has confirmed it to be well-settled that the “satisfaction of the Minister or delegate required to meet that precondition is a state of mind formed reasonably and on a correct understanding and application of the applicable law”: Shrestha v Minister for Immigration and Border Protection [2018] HCA 35, [2] (Kiefel CJ, Gageler and Keane JJ) (citing Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at 35 [33]), [33] (Nettle and Edelman JJ); see also Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69.

These principles are applicable whether one is concerned with the question of ministerial “satisfaction” for the purposes of ss 116, 133C(3) or cognate provisions of the Migration Act 1958.

For obvious and good reason, satisfaction of health criteria may be made essential to the grant or refusal, respectively, of a visa: see, e.g., Migration Act 1958, 65(1)(a)(i). For the purposes of statutory interpretation, words in the singular include the plural. Further, where in any Act a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings: Acts Interpretation Act 1901 (Cth), ss 18A, 23. In the Migration Act 1958, the expression “health criterion” is given a particular meaning and for the purposes of statutory interpretation of that Act, the expression “health criterion” bears the meaning which provided by s 5. Although it has not been the subject of argument, it is unclear whether the combined effect of the requirement for ministerial satisfaction as expressed in par 65(1)(a)(i), coupled with the definitions of “health criterion” and “prescribed” in s 5, confine the issue of ‘health criteria’ as including only those criteria prescribed by regulation.

By 116(1) of the Migration Act 1958, no less than nine alternative generic grounds are provided the satisfaction of which engages a discretionary statutory power in the Minister to cancel a visa. However, in each case, the discretionary power to do so is not enlivened unless the Minister is satisfied of the existence of such a ground.

Upon the basis of the decision announced at about 5:45 p.m. on Friday, 14 January 2022, for the purposes of engaging s 133C(3), the head of power relied upon under s 116 was the ground specified in par (1)(e) of that provision, being the health of the Australian community. Further, as I understood it, the respondent also considered it to be in the public interest to cancel his visa, by reason of a perceived need to quell the risk, as it seemed to be said, of so-called ‘anti-vaxers’, deploying the applicant’s presence in Australia as some sort of vehicle upon which to rally in support of their cause. Without the benefit of argument it was more difficult to locate the source of this discrete head of power in s 116.

It is not necessary to examine in detail the nature of ministerial satisfaction or to finally determine the relative merits of the parties’ competing contentions whether a ground exists under s 116 of the Migration Act 1958 for the respondent to cancel the applicant’s visa, or whether the criterion for ministerial satisfaction whether it would be in the public interest for the respondent to cancel the applicant’s visa pursuant to s 133C(3). That is because in my view, it is sufficient to record my conclusion I am satisfied that the applicant has demonstrated there is a reasonably arguable case; that is, there is a serious question to be tried whether a ground for cancellation existed under s 116 to do so. Stated in other terms, if no such ground existed, the primary and essential criterion for engagement of the personal power to cancel a visa as expressed in par 133C(3)(a) might not exist. In that event, the discretionary power conferred by s 133C to cancel the visa would not be enlivened. That is because ministerial satisfaction respecting the matters in each limb of s 133C(3)(a) and (b) is essential to the existence of the Minister’s statutory discretionary personal power to consider cancellation. Further, if facts and circumstances capable of supporting the precondition to par 133C(3)(a) were not demonstrated, no occasion would arise to address whether the secondary, and equally, essential, criterion expressed in par 133C(3)(b) was satisfied. In each case, the nature of the satisfaction of the Minister that is necessary and sufficient to engage the power in s 133C(3) “is a state of mind formed reasonably and on a correct understanding and application of the applicable law.”

Ground 3

It cannot be overlooked that the rights which inhere in a visa are of real and substantial value. The destruction of such rights, as by cancellation, are to be considered from that perspective. Upon the foregoing principles, it is appropriate to grant relief in this case. It is then necessary to address the relief that is appropriate to be granted in the case.

It is also desirable that the proceeding be transferred to the Federal Court of Australia. It is necessary to explain, however briefly, why this conclusion has been reached. As stated above, limited jurisdiction is conferred on this court to grant relief by way of judicial review where an administrative decision made under the Migration Act 1958 is shown to be tainted by jurisdictional error. It will not do so unless the error is shown to be material in the requisite sense.

By s 137(1) of the Federal Circuit and Family Court of Australia Act 2021, jurisdiction of Div. 2 of this court is to be exercised by the court constituted by a single Judge. When called upon to exercise jurisdiction, the Judge may give directions under s 192(1). Included in the directions that the court is empowered to give in a civil proceeding is a direction requiring things to be done: see par 192(2)(a). Relatedly, s 153(1) confers a discretionary and qualified power in the court to transfer a proceeding to the Federal Court of Australia.

While the court may transfer the proceeding of its own initiative, a non-exhaustive list of matters that the court must have regard to are detailed s 153(3). An order for transfer is qualified by s 153(3) inasmuch as the order is not operative and does not take effect until it has been confirmed pursuant to s 32AD(1) of the Federal Court of Australia Act 1976 (Cth). Section 32AD addresses matters relevant to the exercise of discretion to confirm a transfer.

An ancillary order was required directing that the parties forthwith do all things and take all steps were reasonably necessary to make application seeking confirmation of the transfer of the proceeding pursuant to s 32AD(1) of the Federal Court of Australia Act 1976. Should the Federal Court of Australia determine not to confirm the transfer of the proceeding, it will be remitted immediately to this court for hearing and determination.

I have concluded that it is in the interests of the administration of justice to make an order for the transfer of the proceeding. The objects and requirements stated in ss 5(a), 139(d) and 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), are: to ensure that justice is delivered by federal courts effectively and efficiently; to ensure all matters in controversy between the parties may be completely and finally determined (and, in particular, that all multiplicity of proceedings concerning such matters may be avoided). Overarching purposes of civil practice and procedure provisions of that Act are to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible including by the efficient use of the judicial and administrative resources available in a timely manner.

In my view it is consistent with the furtherance of those objects, including to minimise the application of further resources and incurring of significant costs to each of the parties (including appeals), for the matter to be transferred without delay.

Notwithstanding the jurisdiction conferred by s 476 the Migration Act 1958 upon this court to hear and determine proceedings by way of judicial review, an additional power conferred by s 26(1) of the Federal Court of Australia Act 1976 (Cth), allows for the referral to a Full Court of questions that may be reserved for its consideration.

It does not appear, and having regard to the divisional nature of this court, I would not expect to locate, any correlative provision in the Federal Circuit and Family Court of Australia Act 2021. To say as much is only to underline the importance of achieving the object that justice is delivered by federal courts effectively and efficiently and this should occur in a manner that secures the just resolution of the parties’ disputes according to law, as quickly, inexpensively and efficiently as possible and in a timely manner.

Further, the court was satisfied it was in the interests of the administration of justice that, pending the order for the transfer of the proceeding being confirmed, and necessary, within the meaning of s 153(5) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), for these orders to be made.

Conclusion:-

1) The applicant have leave, now for then, to make oral application for judicial review of the decision of the respondent made purportedly pursuant to s 133C(3) of the Migration Act 1958 (Cth) to cancel his Temporary Activity (Subclass 408) visa.

2) Pursuant to s 153(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the proceeding be transferred to the Federal Court of Australia.

3) The parties and each of them forthwith do all things and take all steps as may be reasonably necessary to make application seeking confirmation of the transfer of the proceeding to the Federal Court of Australia pursuant to s 32AD(1) of the Federal Court of Australia Act 1976 (Cth).

4) The costs of and incidental to this application be reserved.

 

Added a post 

DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229 (17 December 2021)

Intro:-

This is an appeal from orders made by the primary judge in dismissing an application brought by the appellant, DCR19, to seek judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), not to revoke a decision made by another delegate of the Minister to cancel the appellant’s resolution of status visa.

Facts:-

The appellant is a citizen of the Democratic Republic of the Congo (Congo) who arrived in Australia in 2002, aged 30.

On 13 March 2002, the appellant made an application for a protection visa as a member of the family unit of his then wife. The appellant made no claims for protection of his own.

On 28 August 2002, the appellant was granted a Temporary Protection (Class XA) (subclass 785) visa.

On 24 February 2003, the appellant’s then wife applied for a further protection visa. On 26 May 2005, the appellant was granted a temporary protection visa on the basis that he was a member of his then wife’s family unit. In each case the appellant made no separate claims in respect of himself as a distinct person, who should be owed protection.

On 26 May 2008, after separating from his then wife, the appellant applied for a permanent protection visa. In his application form, the appellant claimed that he left the Congo because his “wife’s family was politically active and consequently were persecuted by the Govt” and “as a result of the marriage, [he] was also persecuted”. The appellant also claimed that, if he was returned to the Congo, he would “still be targeted as everyone knew [his] connection with [his wife’s father] ... and [his] brother in law”.

On 28 August 2008, a delegate of the Minister made a decision to grant the appellant a Resolution of Status visa. It was not a criterion for the grant of that visa that the appellant be a person to whom Australia owes protection obligations.

Between 2013 and 2018, the appellant was convicted of various crimes. Relevantly, on 17 January 2013, he was convicted of knowingly dealing with the proceeds of crime and was sentenced to a term of imprisonment of three years and three months.

On 19 March 2018, the appellant was convicted of knowingly producing a false or misleading document and was sentenced to a term of 12 months’ imprisonment.

On 28 May 2018, the appellant’s resolution of status visa was cancelled by a delegate of the Minister (cancellation decision) under s 501(3A) of the Act, as the appellant had been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment.

The appellant sought revocation of the cancellation decision by making representations to the Minister in accordance with an invitation that had been issued to him on 28 May 2018. Relevantly, the appellant’s representations in support of revocation of the cancellation decision made no reference to Australia owing any non-refoulement obligations in respect of him.

On 21 February 2019, a delegate of the Minister made a decision pursuant to s 501CA(4)(b) of the Act to refuse to revoke the cancellation decision (non-revocation decision).

Review was sought of the non-revocation decision on 22 February 2019. In the course of that review, on 26 April 2019, the appellant, for the first time since the making of the cancellation decision, claimed in an affidavit that he would be persecuted if he were returned to the Congo. His former spouse had also made an affidavit to that effect on the same date. Written submissions were also made by the appellant on the day before the Tribunal hearing in which the issue was raised.

A hearing was held before the Tribunal on 2 and 3 May 2019. In a decision made on 16 May 2019, the Tribunal affirmed the non-revocation decision. The Tribunal’s reasons for decision were comprehensive and were summarised by the primary judge at [28]-[41] of the Primary Judgement.

Tribunal's decision

The Tribunal went on to summarise the appellant’s claims and the parties’ submissions before finding that it was not satisfied that the appellant had “any subjective fear of persecution in the [Congo]”, noting that “in his response to the cancellation of his visa, [he] did not mention anything about fearing persecution in the [Congo]”. The Tribunal observed that the first time that any non-refoulement claim was advanced was in an affidavit made in the course of the review in April 2019 following the lodgement by the Minister of his statement of facts, issues and contentions. The Tribunal found that the making of that claim in those circumstances evinced an absence of “a subjective fear of persecution”.

Further, the Tribunal noted that the appellant had been separated from his wife since 2005, had been outside of the Congo for 16 years and did not share a surname with his wife or anybody in her family: Tribunal reasons at [282]. In those circumstances, the Tribunal found that it was “unlikely that any potential persecutors would remember or recognise the [appellant] or want to harm him on the basis that he was married to a family member of the family of someone who opposed the government 16 years ago. The Tribunal also found that there was no evidence to suggest that anybody in the Congo was “seeking to harm or threaten” the appellant.

The Tribunal returned to the topic of the failure by the appellant to make any representations about non-refoulement to the Minister. It said that the absence of a subjective fear of harm could be considered in determining whether there was an objective real chance that he would face serious harm or a real risk that he will face significant harm if returned to the Congo. The Tribunal observed that the failure to make representations about non-refoulement to the Minister, together with the absence in the appellant’s former wife’s statement of any discussion of the harm that he might suffer at the hands of others in the Congo, “support[ed] the view that [she] did not consider that the [appellant] will suffer harm” if he were returned to that country.

The Tribunal considered that it was “likely” that the appellant would not be found to meet the criteria for the grant of a protection visa and that his removal from Australia “will not result in any breach of Australia’s international non-refoulement obligations”. The Tribunal correctly observed that any claims made in support of a protection visa application would be determined by another decision-maker, who would not be bound by the Tribunal’s findings as to Australia’s international non-refoulement obligations. Although the Tribunal considered that there was “only a very remote possibility” that Australia would breach its international obligations, nonetheless it found that “that outcome [wa]s possible”. Accordingly, the Tribunal gave this factor “slight weight” in favour of revocation of the cancellation decision.

The Tribunal also made findings as to the harm or hardship that the appellant might suffer if he were returned to the Congo: . It found that there was a “possibility” that the appellant would be harmed if he were returned to the Congo, but that that possibility was “very unlikely”.

The foregoing considerations were weighed against factors that militated against revocation of the cancellation decision. Having weighed those factors, the Tribunal concluded that there was not another reason why the cancellation decision should be revoked.

Issues:-

1) whether the Tribunal conclusion that the appellant did not have a subjective fear of harm or persecution, if returned to the Congo was vitiated by jurisdictional error, in that the Tribunal did not afford procedural fairness to the appellant as a result of the Tribunal’s approach in considering the appellant’s evidence.

2) whether it was legally unreasonable for Tribunal not to have inquired or adjourned hearing to enable material to be put before it regarding non-refoulement, or to not have considered doing so.

3) whether the Tribunal erred by failing to consider, or to give real and genuine consideration and intellectual attention to, the impact of the Appellant's claims on Australia's international non-refoulement obligations and/or the implications of the Tribunal's finding that there was a possibility that removal of the Appellant could result in Australia breaching its international non-refoulement obligations.

Consideration:-

Ground 1 - procedural fairness ground

The Tribunal is not required to invite comment from an applicant as to their thought process on the way to making a decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Similarly, the Tribunal is not required to advise an applicant of the possibility of drawing an adverse conclusion that would be open on the material supplied by, or known to, the applicant or which otherwise derives from an obvious and natural evaluation of that material.

The Tribunal’s role was to consider the evidence and submissions that the appellant provided in support of his application for review, and then to determine whether or not his claims were made out. The Tribunal made findings that the appellant did not have a subjective fear of persecution if returned to the Congo, relevantly, for the reason that the appellant had only raised this matter shortly prior to the Tribunal hearing on 3 May 2019.

The appellant chose not to make any representations to the Minister about Australia’s non-refoulement obligations, to the extent that any obligations were owed to him. The first time that the appellant raised the issue of non-refoulement was in his affidavit dated 26 April 2019 (2019 affidavit), approximately one week prior to the appellant’s hearing before the Tribunal. The appellant’s evidence with respect to his fear of harm was brief, and was described in the following way of the Primary Judgement:-

"DCR19 only raised the claim that he feared persecution in the Congo after DCR19 had received the Minister's written contentions and once his solicitor became involved with the application before the Tribunal, a week before the hearing and after a substantial number of the 84 day period that the Tribunal had to make a decision."

The appellant was alive to the fact that he had not, prior to his 2019 affidavit, raised a claim to presently fear harm if returned to the Congo in response to the notification of the mandatory cancellation of his visa. The appellant acknowledged that he “did not provide detail of such fear” at [2] of his 2019 affidavit:

"I have grave concern about returning to the Democratic Republic of the Congo (DRC) based upon my previous refugee claims. The only reason I did not provide detail of such fear is that the form provided to me (Personal Circumstances Form) did not have any questions that raised this issue. If it did, I most certainly would have provided such detail."

Implicit in the above statement is an admission that there had been delay by the appellant in raising that claim. In doing so, the appellant put the fact of delay in issue. Having done so, the appellant cannot now complain that an adverse conclusion was reached by the Tribunal after having regard to that delay. That conclusion was open to the Tribunal on the known material.

Prior to the time that the non-revocation decision was made, the appellant was provided with an opportunity to outline any concerns or fears that he held in relation to what could happen to him if returned back to the Congo. The appellant in his "Response to Notice of Intention to Consider Visa Cancellation under s501(2) of the Migration Act 1958 or Notice of Mandatory Visa Cancellation under s501(3A) of the Migration Act 1958" (personal circumstances form), failed to provide an answer to that question on page 10, which reads:-

"Do you have any concerns or fears about what would happen to you on return to your country of citizenship?"

That question, which her Honour the primary judge described at [70] of the primary judgment, as “plainly worded” was left unanswered, and there was otherwise nothing in the request for revocation that suggested that the appellant feared persecution or harm of any kind if returned to the Congo.

What is notable is that the appellant, in a handwritten letter dated 17 June 2018, which was attached to the personal circumstances form, made the following representations:

"I have no close ties to anybody in the Congo as my family and life is now here in Australia. I will not have a job or any place to live if I were deported."

It is reasonable to take the view that, if the appellant did have a subjective fear of harm, if he were returned to the Congo, that he would have described or raised these fears within the personal circumstances form, like he did with the above representation.

Contrary to the appellant’s claim that he was denied procedural fairness as a result of the Tribunal failing to inquire or to adjourn the hearing to enable further material to be put into evidence in respect of non-refoulement, the appellant was (or ought reasonably to have been) on notice of that issue and in fact had the opportunity to put forward submissions on it. It was, in turn, open to the Tribunal to take into account not only the appellant’s delay in raising his claims to fear harm but also the explanation proffered for that delay, and to consider such matters when considering issues relating to non-refoulement.

For these reasons, the appellant was not denied procedural fairness and this ground of appeal fails

Grounds 2 - unreasonableness ground

The unreasonableness grounds turn on the proper interpretation of s 500(6H) of the Act and the determination of the appellant’s contention that the Tribunal erred in its understanding and application of that provision.

Section 500(6H) of the Act provides:

500 Review of decision

...

(6H) 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 information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

The prohibition contained in s 500(6H) of the Act is in mandatory terms. It only operates if a review applicant can show that “the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing”. The purpose of that prohibition is to ensure the expeditious determination of applications for review under s 500 of the Act, and to prevent a circumstance arising in which the Minister is taken by surprise by late changes or additions to an applicant’s case.

Consistent with that purpose, the section does not preclude the Tribunal from considering information which is not presented by, or on behalf of an applicant, including information that arises from cross-examination or answers given in response to questions put by the Tribunal. Those exceptions do not, however, diminish the force of that prohibition. Nor do they permit s 500(6H) to be approached in a manner that would render it inutile or de minimis.

The Tribunal, in the course of the hearing, asked the appellant a question about the persecution that he feared at the hands of the government on account of his association with a prominent family member, namely his brother-in-law. The following was put to the appellant in cross-examination:-

"It has been suggested that in Africa if you’re a family member of or you have the involvement with those kinds of people, that you’re persecuted by the government; is that right?---Yes."

The Tribunal member then asked the appellant the following question:-

"But that doesn’t seem to extend to any of your family members?---Yes.

So none of your family members have been harmed because of your association of your wife’s association with - - -?---No, but this – they live in the same – no, live in this place. I leave them because they no want people to go to Thailand ...."

It is clear from the above extract that the Tribunal put the appellant on notice that there was doubt as to the force of the appellant’s claim for persecution on the basis of his association with an antigovernment family member or anti-Kabila government family member, because none of the appellant’s family members in the Congo have been harmed.

In the present case the appellant was not precluded from calling any witnesses, nor was he prevented from giving oral evidence on the aspects of his claims relating to his fear of persecution if returned to the Congo. Rather, the prohibition in s 500(6H) of the Act applied only to prevent evidence that was sought to be adduced to which the Tribunal could have no regard. As Bromberg J recognised in DOM19 at [11], that is a permissible application of s 500(6H) of the Act.

In terms of the alleged unreasonableness, or illogicality components of the unreasonableness grounds, the Appellant’s contentions misunderstand the duty of the Tribunal. The Tribunal is not required to construct a case for a review applicant: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ, and nor is it under any general duty to inquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [43] per Gummow and Hayne JJ. Rather, it is for a review applicant to put before the Tribunal the material that they wish to be taken into account and to satisfy the Tribunal of relevant statutory requirements: Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] per Davies, Derrington and Colvin JJ.

Contrary to the appellant’s contentions, the mere fact that the Tribunal has at its disposal the power to elicit for itself information which an applicant cannot themselves put forward by force of s 500(6H) of the Act does not render it legally unreasonable (or otherwise illogical or erroneous) for the Tribunal not to exercise that power. Were that not so, the Tribunal could conceivably be required to seek to bolster a review applicant’s evidence in every case before it, regardless of the content of the written material put before it by an applicant, thereby rendering s 500(6H) of the Act (and s 500(6J)) inutile. The comments made by the High Court in Minister for Home Affairs v DUA16 [2020] HCA 46 (DUA16), cannot in this regard be taken as a statement of general principle; they were uttered (as the High Court itself noted) in respect of a case the circumstances of which “[we]re extreme”. Regard needs only to be had to the unique facts of DUA16 to appreciate that the appellant’s reliance on it is misplaced. Nor did the High Court in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 (Uelese) suggest that the ability of the Tribunal to ask questions of a review applicant altered its essential function or the review process, or otherwise gave rise to a general duty to inquire.

It should also be noted that the appellant’s counsel agreed that it would undermine the purpose evident in s 500(6H) of the Act for the Tribunal simply to ask the questions itself to overcome the effect of the statutory prohibition. In those circumstances, and absent the appellant establishing that the Tribunal misunderstood or misapplied s 500(6H) of the Act (which, for the reasons given above, it did not do), it was not legally unreasonable for the Tribunal not to have exercised its discretion to obtain information from the appellant to “fill in” the evidentiary gap that he had left. In this connection, it is not irrelevant to the question of whether the Tribunal acted unreasonably that the appellant was represented during the merits review process. The appellant could have had his former legal representative prepare a detailed statement on his behalf that canvassed his claims to invoke Australia’s international non-refoulement obligations and identified the harm that he feared, whether and why that fear was current, from whom he feared harm and what he believed might happen to him if he were to be returned to the Congo. That however, was not done.

The unreasonableness grounds will fail.

Ground 3 – failure to consider grounds

The appellant contends, in the failure to consider grounds that:

(i) The primary judge erred in failing to finding that the Tribunal committed jurisdictional error by failing to consider claims made by the appellant’s former wife in 2002 and 2008, that he may face persecution if returned to the Congo.

(ii) The Tribunal erred by failing to give proper consideration to the appellant’s claims of non-refoulement.

The failure to consider grounds fail for the reasons that follow.

In deciding whether there existed another reason to revoke the decision to cancel the appellant’s visa, the Tribunal was under no obligation to have regard to the appellant’s claims to be a person in respect of whom Australia owes non-refoulement obligations. Accordingly, any error by the Tribunal in its treatment of non-refoulement, such as conflating the criteria for granting a protection visa with the question of whether a person engages Australia’s international non-refoulement obligations (which the Minister does not concede was made), was within its jurisdiction.

As to ground 5(i), no error has been shown by the appellant in the primary judge’s findings, at [81]-[82], that there was no failure by the Tribunal to consider the appellant’s 2002 and 2008 protection visa applications. The Tribunal’s reasons make plain that it had regard to the evidence put forward by the appellant in support of his claim to fear harm if returned to the Congo. The Tribunal expressly referred to the previous protection visa applications made by the appellant and his ex-wife, including in its dispositive findings at [276] of its reasons:-

"... the Applicant never made any of his own claims to fear persecution in the applications for the first two Protection visas which he was granted. Further, the Applicant gave evidence during the hearing that when his migration agent applied for a Protection visa for him in 2008, he had no idea that he was applying for a Protection visa."

In the circumstances, it can be inferred that the absence of any detailed reference to the claims that the appellant made in 2002 and 2008 is that they were not critical to the making of the Tribunal’s findings on material questions of fact.

Those circumstances included that neither the interview conducted in 2002, nor the protection visa application the appellant made in 2008, had any bearing upon the appellant’s fear of harm as at 2019. On each occasion the appellant’s claims were in general terms. Further, the appellant did not state in his 2002 interview that he feared harm if returned to the Congo. Rather, the appellant stated that no immediate threats had been made to himself or his wife, and that he had not kept up-to-date with the circumstances of his wife’s family. This is apparent from the transcript of the appellant’s airport entry interview:

Q: Is your brother in law under threat

A: I would have to check that with my wife.

Q: Why do you not know if he is under threat?

A: I haven't kept up to date about my brother in laws situation

Q: Have you or your wife received any immediate threats

A: No

Further, the 2008 application had been made without the appellant’s knowledge.

It is clear that the Tribunal undertook a consideration of what a contravention of Australia’s non-refoulement obligations would entail. The Tribunal did not equivocate on this. This was not a case where the Tribunal concluded that the appellant was a person in respect of whom non-refoulement obligations were owed, but found that the evidence before it was such that it could not properly assess the degree and nature of the harm that he might encounter in his home country. Rather, the appellant was found not to be a person in respect of whom Australia owes such obligations because the chance of his being harmed was “very remote” at [289] of the Tribunal’s reasons. Nevertheless, to account for that very remote chance of contravention by Australia of its international obligations, the Tribunal determined to give non-refoulement “slight weight in favour of revocation”: Tribunal’s reasons at [290].

The appellant’s contention that the Tribunal failed to properly “evaluate the information available to [it] about the circumstances in [the appellant’s] place of return”, “to determine what, as a matter of fact, those circumstances meant for [the appellant] on his return” and then to incorporate those findings into the resulting weighing exercise is not correct: DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2012) 278 FCR 529. Moreover the appellant’s reliance on Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 (Ali), that this failure was compounded, or caused, by a broader failure on the part of the Tribunal (equivalent to that in Ali) to recognise the distinction between the appellant’s potential eligibility for a protection visa and whether he was owed non-refoulement obligations is misplaced for the reasons that follow.

Unlike in Ali this was not a case where the Tribunal hived off non-refoulement to a later decision-making process.

Unlike in Ali, the Tribunal did not fail to appreciate the differences between the role of non-refoulement in the exercise of the discretionary power in s 501CA(4) and its place in the protection visa regime.

Unlike in Ali, the Tribunal did not conflate Australia’s international non-refoulement obligations with the criteria for the granting of a protection visa. On the contrary, the Tribunal was careful to appreciate the differences between Australia’s obligations under international law and the criteria for the grant of a protection visa.The Tribunal understood that “it is quite possible that a person may not meet the criteria for the grant of a [p]rotection visa notwithstanding that Australia may owe non-refoulement obligations in respect of the person”. No such statements appear in Ali, FAK19 or DGI19. Read in the context of its discussion of Australia’s international obligations, the references to ss 36(2)(a) and (aa) of the Act at Tribunal reasons [278]-[279] and [287] were merely shorthand for Australia’s international obligations under, respectively, the Refugees Convention and other international human rights instruments (such as the International Covenant on Civil and Political Rights and the Convention Against Torture) as enacted in municipal law. Such reasoning was entirely orthodox, as Australia’s unenacted obligations under international law “are not mandatory relevant considerations attracting judicial review for jurisdictional error”; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101] per McHugh and Gummow JJ; cited by Nettle, Gordon and Edelman JJ in Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 (Applicant S270/2019) at [35]. As Keane J observed in CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514, in a passage cited by the majority in Applicant S270/2019 [2020] HCA 32; (2020) 94 ALJR 897 at [35] per Nettle, Gordon and Edelman JJ:-

"[i]n point of constitutional principle, an international treaty made by the Executive Government can operate as a source of rights and obligations under our municipal law only if, and to the extent that, it has been enacted by the Parliament."

In particular, the Tribunal did not err in its reasons. All that the Tribunal there said was that the failure by the appellant to meet the criteria in ss 36(2)(a) and (aa) meant that Australia would not breach its international non-refoulement obligations in the event that he is removed from Australia. That was not to equate non-refoulement with the criteria for the grant of a protection visa. Rather it was to recognise that the international instruments referred to in the previous paragraph are a source of rights and obligations under domestic law to the extent that ss 36(2)(a) and (aa) incorporate Australia’s obligations under those instruments. That the Tribunal did not conflate the two processes is reinforced not only by the absence of any reference in its dispositive findings to ss 5H-5LA or ss 36(1A)-(1C) and (2A)-(7) of the Act but also its acknowledgment, at [288] of its reasons, that a decision-maker on any application for a protection visa would not be bound by the findings made for the purpose of exercising the power in s 501CA(4)."

It is difficult to see how the Tribunal was required to have regard, in the appellant’s submission, to the impact (if any) of a contravention of Australia’s international non-refoulement obligations on its “international reputation and standing”, when, first, it concluded that the appellant was not owed such obligations. Secondly, the executive dimension of non-refoulement never featured in the appellant’s submissions to the Tribunal; and thirdly, the slight chance that such obligations might be owed was taken into account in any event. Particularly where the point was never taken by the appellant, the exercise of the power in s 501CA(4) did not require a decision-maker to have regard to the damage to Australia’s international standing or reputation in the event that it contravened its international non-refoulement obligations.

For these reasons, the failure to consider grounds will fail.

Disposition

The appeal will be dismissed.

The appellant will pay the first respondent's costs of the appeal on a lump sum basis to be fixed by a Registrar of this Court in the absence of agreement between the parties.

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Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 (8 December 2021)

Intro:-

The Minister appeals against the decision of the Full Federal Court that the decision not to cancel the respondent's visa, pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was vitiated by jurisdictional error

Facts:-

The respondent was born in American Samoa, was largely raised in the Independent State of Samoa ("Samoa"), and is a citizen of New Zealand. At the age of 14 he arrived in Australia. In 2007, he was granted a Class TY Subclass 444 Special Category (Temporary) visa, which he held until 2016. Following his conviction for, amongst other crimes, seriously assaulting his partner, his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) ("the Act"). Subsequently, the appellant ("the Minister") decided that there was not "another reason" to revoke that cancellation decision for the purposes of s 501CA(4)(b)(ii). The respondent sought judicial review of that decision in the Federal Court of Australia. Initially, his application was dismissed, but on appeal[2] the Minister's decision was set aside.

For the purposes of making representations about whether there was "another reason" to revoke the visa cancellation decision, the respondent asserted, amongst other contentions, that there was a "real prospect" that he and his partner and young child, unless the visa cancellation decision were to be revoked, would go to American Samoa, where they would face "substantial impediments". As an example of these "substantial impediments", the respondent submitted that his partner and child would be "unfamiliar with the culture and society in American Samoa", and that his child would "have limited understanding of her father's native language and as such any schooling and advancement in life will be materially affected by the language and cultural barrier that will be placed upon her". He also contended that as "a family unit" they would likely be "homeless, with no job, social ties, welfare or healthcare services in American Samoa". He subsequently diluted this claim and submitted that his partner and child's "prospects at life" would be "limited, with little prospects of employment, denial of a first-class education for [his] daughter, problematic healthcare and no social welfare" (emphasis added). None of these contentions were supported by any evidence.

In his statement of reasons for decision under s 501CA of the Act, the Minister addressed these concerns, and decided that if the child were to relocate to American Samoa or Samoa she would be "significantly impacted". In reaching this conclusion, the Minister largely accepted the respondent's assertions, but made two qualifying observations which were the subject of successful challenge below. The first was as follows:-

"I find that the whole family, may, at least initially, experience problems relating to employment, income, housing and lack of family or social support and this would negatively impact on [the respondent's child]. English, however, is widely spoken in American Samoa and Samoa and healthcare, education and some welfare support are available in either location."

Notably, no specific claim was made by the respondent about the extent to which English was spoken in either American Samoa or Samoa.

The second was in these terms:-

"I accept that the services available in American Samoa and Samoa may not be of the same standard as those available in Australia, and/or may be more expensive to access, and there may be differences in services between American Samoa and Samoa."

In relation to that observation, the Minister remarked that the respondent's family would have "equal access to welfare, healthcare and educational services as do American Samoans and Samoans in a similar position".

The respondent contended that each observation, about the speaking of English and the availability of services in American Samoa and Samoa, was made without any evidentiary support. In that respect, it was common ground that there was no objective evidentiary material before the Minister capable of supporting either finding. This led to the majority's finding that the Minister wrongly afforded less weight to the child's interests, and "so affected a critical aspect of the Minister's reasoning".

It should be noted that the respondent has never suggested that the Minister's observations were in fact incorrect. Even though it was open to the respondent to show this, assuming each observation in fact to be mistaken, he has chosen not to do so. On appeal to this Court, senior counsel for the respondent strikingly submitted that even if the two impugned observations were true, the Minister had nonetheless erred because those findings were made without the support of "some probative material".

Tellingly, the respondent did not attack equivalent findings made about conditions in New Zealand. For example, the Minister said in his reasons:-

"In relation to New Zealand, I find that [the respondent] and his family will have access to similar social services and healthcare support to those enjoyed by citizens of New Zealand. I find that these services are of a similar level to those available in Australia and that New Zealand is culturally and linguistically similar to Australia."

In light of the foregoing, the respondent has nonetheless indicated that if he is to be deported, he would choose to move to American Samoa, even though, it would seem, he accepts that the standards of social services in New Zealand are much higher than those, as he contends, that are available in American Samoa. He then relies precisely on that lack of services as a reason for the revocation of the visa cancellation decision.

Ultimately, each impugned finding, together with other findings that have not been challenged, led the Minister to determine that it was in the best interests of the respondent's child that the cancellation decision be revoked, and that the respondent's removal to American Samoa or Samoa would result in "significant adjustments and hardship" for him and his family. In other words, the Minister accepted the substance of the claims made. However, the Minister weighed these favourable factors against the risk of harm to the Australian community if the respondent were not removed. The Minister considered that this risk was "unacceptable" and that it "outweighed" the factors favouring revocation of the cancellation decision. No attack has been made on the manner in which the Minister weighed these various matters in not reaching a state of satisfaction that there was "another reason" for revocation of the cancellation decision.

Issue:-

1) whether the Minister is obliged to make actual findings of fact as an adjudication of all material claims made which included bare assertions about conditions in American Samoa?

2) in the absence of evidence or material, is there anything in the statutory language of s 501CA(4) of the Act that prohibits the Minister from using personal or accumulated specialised knowledge, or commonly accepted knowledge, for the purpose of considering the representations made by an applicant, and in determining whether the Minister is satisfied that there is "another reason" for revocation?

3) if it was permissible to rely on such knowledge, the observations about the widespread use of English and the state of health and welfare services in American Samoa and Samoa, as a matter of procedural fairness, should have been disclosed to the respondent to permit him to make submissions about those matters.

Consideration:-

Ground 1

The legal capacity conferred on the Minister by s 501CA of the Act to revoke a decision to cancel a visa is premised upon the prior exercise of the power of cancellation conferred by s 501(3A). Importantly, once the conditions of s 501(3A) are fulfilled, the power of cancellation is mandatory; the Minister must cancel the visa. In contrast, the power of revocation is broad. Upon receiving representations about revocation in accordance with s 501CA(4), the Minister must determine whether to be satisfied that the person passes the character test (as defined by s 501(6)) or whether there is "another reason why the original decision should be revoked".

The relevant statutory scheme mandated by s 501CA of the Act comprises: the giving of relevant information to a person whose visa has been cancelled; inviting that person to make representations about why that cancellation decision should be revoked; the receipt of representations by the Minister made in accordance with that invitation; and, thereafter, the formation of a state of satisfaction, or not, by the Minister that the cancellation decision should be revoked. That scheme necessarily requires the Minister to consider and understand the representations received. What is "another reason" is a matter for the Minister. Under this scheme, Parliament has not, in any way, mandated or prescribed the reasons which might justify revocation, or not, of a cancellation decision in a given case. It follows that there may be few mandatorily relevant matters that the Minister must consider in applying s 501CA(4)(b)(ii). Thus, the Minister is not obliged to take account of any non‑refoulement obligations, as expressed in the Act or otherwise, when determining whether there is another reason to revoke a cancellation decision where the materials "do not include, or the circumstances do not suggest, a non-refoulement claim". The power must otherwise be exercised reasonably and in good faith.

No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant. Based upon the representations made by an applicant, the cancellation decision and the "relevant information" given to the applicant pursuant to s 501CA(3)(a), the Minister must, when the Minister is not satisfied that an applicant passes the character test, then determine relevantly whether to be satisfied that there is "another reason" why the cancellation decision should be revoked. Deciding whether or not to be satisfied that "another reason" exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant's past offending.

If the representations made lack any substance altogether, then this of itself might justify a decision not to be satisfied that "another reason" exists to revoke the cancellation decision, without any need to make any findings of fact about the various claims made. Moreover, some of the topics that might be traversed might not lend themselves to be addressed by way of evidence[. They may involve matters of judgment, especially when weighing factors for and against revocation. The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.

If the Minister is not satisfied that another reason for revocation exists, s 501G(1) of the Act obliges the Minister to give the applicant a written notice setting out, amongst other things, the decision, specifying the provision – and its effect – under which the decision was made, and the reasons for the decision. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme, a majority of this Court said that the minimum obligation under s 501G was to express the "essential ground or grounds"[16] for the conclusion reached by the Minister. Importantly, a failure to comply with s 501G does not invalidate the decision made under s 501CA. For the purpose of giving "reasons", the Minister is also obliged, pursuant to s 25D of the Acts Interpretation Act 1901 (Cth), to set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. The respondent here did not suggest that s 25D had not been complied with.

Ground 2

If the Minister exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister's personal or specialised knowledge or by reference to that which is commonly known. By "no evidence" this has traditionally meant "not a skerrick of evidence".

There is otherwise nothing in the statutory language of s 501CA(4) of the Act that prohibits the Minister from using personal or specialised knowledge, or commonly accepted knowledge, for the purpose of considering the representations made by an applicant, and in determining whether the Minister is satisfied that there is "another reason" for revocation. Indeed, there are simply no limitations on the sources of information that may be considered by the Minister in determining whether to reach the state of satisfaction prescribed by s 501CA(4)(b)(ii). Nor is there any express requirement that the Minister disclose whether a material finding was made from personal knowledge. In the circumstances of the present case, where no evidence or other material has been identified in support of the Minister's findings about the speaking of English and the availability of services in American Samoa and Samoa, it can be assumed that the findings proceeded from the Minister's personal or specialised knowledge or were matters commonly known.

In exercising the power conferred by s 501CA(4) of the Act, the Minister is free to adopt the accumulated knowledge of the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs ("the Department"). Indeed, it is now well established that the Minister may adopt as the Minister's own written reasons a draft prepared by a departmental officer, provided that such reasons actually reflect the reasons why the Minister had reached her or his decision.

There is no necessary dividing line, for the purposes of s 501CA of the Act, between the use of personal or specialised knowledge, or the use of that which is commonly known, as against the need for some evidence or other material to support a finding which the Minister may make. Where the Minister wishes to make a finding in support of a conclusion that she or he is not satisfied that there is "another reason" for revocation, and the Minister has personal or specialised knowledge which supports that finding, the Minister may use that knowledge. The Minister may also supplement or support such a finding with evidence or other material. Where the finding is not within such personal or specialised knowledge, and is not a matter commonly known, it will need to be supported by some evidence or other material. It cannot be asserted without any basis at all. Different considerations might arise if the finding in question was material to the process of reasoning and was incorrect. But that has not been suggested here.

It would, one would hope, be a rare case where a fact is asserted in support of a reasoned outcome under s 501CA of the Act which has no basis for its existence. However, there have been exceptions in extreme and rare cases where the Minister has made particular or personal findings about an applicant, which could not have been the subject of any pre‑existing personal or specialised knowledge (or common knowledge), and were not otherwise supported in any way. Examples of this have included findings made in the absence of any evidence or supporting material about the danger an applicant might pose in the future to the Australian community, and about the type of hardship an applicant might personally suffer if deported.

It finally remains to be observed, and emphasised, that an applicant's prospects of persuading the Minister to revoke a cancellation decision will doubtless be all the greater if the applicant adduces evidence, or other supporting material, to make good the claims that she or he makes. The production of such evidence or material in the applicant's representations would engage the need for the Minister to consider such evidence and, if necessary, to answer it with further or different evidence, or other material, if the claims are to be rejected.

The decision of the Full Court

Because it was common ground that there was no evidence before the Minister concerning the speaking of English or the availability of health and welfare support in American Samoa or Samoa, the basis upon which the Minister had reached his conclusions on those matters assumed importance below. The majority decided that the evidence did not support a finding that the Minister used his own personal knowledge. That was so for four expressed reasons. First, the Minister's own reasons did not expressly state that he was relying on his personal knowledge. Secondly, the matters were said not to be commonly known, which supported an inference that the basis for the two findings could not have been drawn from personal knowledge. Thirdly, it could not be inferred that the Minister had the required personal knowledge on the basis that he was the Minister charged with the responsibility of administering the Act. Fourthly, there was no evidence that the author of the Department's draft reasons had "any appreciation" of the Minister's prior knowledge.

As the majority concluded that it was an implied condition for the exercise of the power conferred by s 501CA(4) of the Act that the Minister's state of satisfaction "be formed on the basis of factual findings that are open to be made on the evidentiary materials", it was said that this condition had not been complied with. This principle was said by senior counsel for the respondent to be supported by the reasons of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu. In the result, the majority determined that the impugned findings were "critical" to the Minister's reasoning process, and so it followed that the Minister had made a jurisdictional error.

In contrast, Besanko J found that both matters were within the Minister's personal knowledge. His Honour also found that the respondent had made no relevant claim about the extent to which English is spoken in American Samoa and Samoa, and that this impugned finding had not, in any event, been shown to be "wrong". Moreover, and critically, both matters were said to support the ultimate finding, namely that "removal to Samoa or American Samoa [would] 'involve significant adjustments and hardship for the [respondent] and his family'", a matter which favoured the respondent. It followed that the Minister had not erred.

The Minister's personal knowledge

With respect, Besanko J was correct. In the circumstances of this case, the obvious inference is that the two impugned findings were the product of the Minister's personal or specialised knowledge. Senior counsel for the respondent expressly disavowed any suggestion that the Minister had merely made things up.

Again, with respect, the four reasons relied upon by the majority below for concluding that each observation was not made using the Minister's personal or specialised knowledge should not be accepted. Given the store of knowledge the Minister will have built up over many years, from dealing with individuals from so many countries and territories, the source of such specific observations about conditions in American Samoa and Samoa could only have been from the Minister's experience. In that respect, to reiterate, it had not been shown that either observation was incorrect.

It follows that the majority's observation that the Minister's satisfaction or non-satisfaction for the purposes of s 501CA(4) of the Act must be formed on the basis of factual findings that are open to be made on the evidentiary materials is not, with great respect, entirely correct. First, and as already mentioned, the Minister is not prohibited from using the accumulated knowledge of the Department. Secondly, representations may be received which are no more than bare assertions about a course of future events. The Minister may simply not be persuaded that such assertions can constitute "another reason" for revocation. Such a conclusion does not require the Minister to make any factual findings. Finally, because of the applicable statutory regime, the respondent's particular deployment of Eshetu was, with respect, misconceived.

It also follows that the Minister did not err in law when making the two impugned findings.

Ground 3

It was the respondent who made claims about how he and his family would be exposed to adverse conditions if his family were to follow him to American Samoa or Samoa. He was given the opportunity to make submissions about such issues and to support his claims with evidence. In the end, he relied only upon bare assertions. By his reasons, the Minister gave his response to that claim, which, in substance, was no more than to reject it. He was under no obligation to disclose his disagreement and give the respondent yet another opportunity to make claims about the likely conditions in American Samoa or Samoa. This is not a case where the Minister relied upon information or matters that could not have been knowable by the respondent[. Nor is there any equivalent here to ss 424AA or 424A of the Act for the purposes of reaching a state of satisfaction under s 501CA(4). Even if such a provision existed, it would not oblige the Minister to give "advance written notice" of the reasons on this issue.

Disposition

The appeal should be allowed. The Minister should pay the reasonable costs of the respondent in this Court.

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