Was the denial of procedural fairness in not giving Appellant the opportunity to address relevance of incidents of domestic violence by the AAT material so as to amount to jurisdictional error?
Nathanson v Minister for Home Affairs  HCA 26 (17 August 2022)
The issue in this appeal is whether procedural unfairness by the Administrative Appeals Tribunal ("the Tribunal") in the course of hearing the appellant's application for review of a decision to refuse to revoke the mandatory cancellation of his visa involved jurisdictional error. Following a hearing conducted by the Tribunal, the Tribunal affirmed the decision to refuse to revoke the visa cancellation. As the Courts below recognised, the Tribunal's error in failing to afford the appellant procedural fairness will have involved jurisdictional error only if that failure was material to the Tribunal's decision. Materiality is established if the error deprived the appellant of a realistic possibility of a different outcome. The appellant bore the onus of demonstrating that the denial of procedural fairness was material in this sense.
Applying these principles, the appellant discharged his onus of demonstrating that the Tribunal's denial of procedural fairness deprived him of a realistic possibility of a different outcome. That realistic possibility was demonstrable from the record of the Tribunal's decision.
The appellant, a citizen of New Zealand born in Zimbabwe, arrived in Australia in 2010 when he was 26 years old. In 2013, the appellant was granted a Class TY Subclass 444 Special Category visa. In 2018, a delegate of the respondent Minister cancelled that visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). Section 501(3A) required the Minister to cancel the visa because the Minister was satisfied that the appellant did not pass the "character test" in s 501(6) of the Act and because the appellant was then serving a sentence of imprisonment on a full-time basis in a custodial institution for offences against laws of the Northern Territory. The particular offences that led to cancellation of the appellant's visa were depriving a person of personal liberty, aggravated assault, stealing and driving a vehicle in a dangerous manner. The objective circumstances of the offences were serious, including in that: the victim was a seventy year old man; the attack was unprovoked and the victim was deprived of his liberty for almost 12 hours during which the appellant threatened the victim's life; and the offending involved the victim in a high speed car pursuit with police. For the offences, the appellant had been sentenced to a total effective period of imprisonment of two years and six months.
On 10 January 2019, a delegate of the Minister decided not to revoke the mandatory cancellation of the appellant's visa, pursuant to s 501CA(4) of the Act. In making that decision, the delegate was required to comply with the ministerial direction, made under s 499 of the Act and known as "Ministerial Direction 65". Ministerial Direction 65 required the delegate to have regard to a range of considerations, set out in Pt C of the Direction, in exercising the relevant discretion. The considerations included three "primary" considerations labelled in the Direction as: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and expectations of the Australian community. In addition, the Direction specified that "other" considerations were required to be taken into account where relevant. The Direction specified, non-exhaustively, five "other" considerations which were labelled: international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed. The Direction explained each of these considerations and, in several instances, specified factors required to be considered in addressing the relevant consideration. The Direction relevantly stated that: both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa; primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations.
As permitted by s 500(1)(ba) of the Act, the appellant applied to the Tribunal for a review of the delegate's decision. In dealing with the application, the Tribunal was required to stand in the shoes of the original decision maker but having regard to the state of affairs as it stood at the time of the Tribunal's decision. Relevantly, the Tribunal was required to ensure that the appellant was given a reasonable opportunity to present his case.
On 28 February 2019, Ministerial Direction 65 was replaced by a direction known as "Ministerial Direction 79". Ministerial Direction 79 was identical to Ministerial Direction 65 in most respects. However, a significant difference was the inclusion in Ministerial Direction 79, by para 13.1.1(1)(b), of the following factor for consideration in assessing the nature and seriousness of the non-citizen's conduct:
"The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed."
The appeal to this Court proceeded on the basis that the Tribunal was required to act in accordance with Ministerial Direction 79. It was not suggested that the appellant might have had any accrued right to consideration of his application to the Tribunal in accordance with Ministerial Direction 65 and that question is not considered further. It is common ground that the appellant was not put on notice of the significance of this principle for the Tribunal's review until the Minister's closing submissions at the Tribunal hearing on 21 March 2019. There is no suggestion that the appellant had ever been charged with or convicted of any domestic violence offence and the delegate had not mentioned domestic or family violence in their statement of reasons for deciding not to revoke the mandatory visa cancellation.
The appellant was generally aware that allegations of domestic violence were relevant to the Tribunal's review. The Minister obtained under summons two police reports of family violence involving the appellant in 2012 and 2016. The appellant was aware of these reports prior to the Tribunal hearing and there was no suggestion of procedural unfairness in their use at the hearing. Seemingly intended to respond to the police reports, the appellant submitted to the Tribunal a letter of support from his wife dated 5 March 2019, in which she referred to two occasions on which she had reported the appellant to the police. However, the letter did not say anything specific about the incidents that led to the reports or express any views about whether the incidents were likely to be repeated. It is fair to say that the letter was principally concerned with the interests of the appellant's family which, the wife argued, would be best served by permitting the appellant to remain in Australia.
At the Tribunal hearing, the appellant represented himself. Early in the hearing, the Tribunal member noted that she was considering the application under Ministerial Direction 79. The Tribunal member gave the appellant a copy of Ministerial Direction 79 with red markings to identify changes from Ministerial Direction 65. She said that there were "only minor changes to the direction" and further commented that "[m]ost of those changes relate to how we treat crimes where women and children are involved, and with respect to the conviction history I have for you in front of me, I think they're of minor relevance, those changes. That is, mostly relevance [sic] to where the applicant has been charges [sic] in relation to convictions and offences in relation to women and children." The solicitor appearing for the Minister at the Tribunal hearing did not raise any issue concerning these observations.
The appellant then gave some evidence on his own behalf, after which the Minister's solicitor made brief oral opening submissions. The Minister's solicitor stated the Minister's contention that the appellant had been convicted of many serious crimes and "there's also evidence of serious behaviours that should be of concern to the Australian community". The solicitor did not specify the nature of the "serious behaviours" and he did not say anything to indicate that, by reason of the new language in Ministerial Direction 79, any domestic or family violence was to be viewed very seriously by the Tribunal in conducting its review.
The Minister's solicitor then questioned the appellant, including about the two police reports of family violence involving the appellant. The appellant made several admissions, although he also gave evidence to the effect that he had no real recollection of either incident. Then, in closing submissions, the Minister's solicitor contended that the appellant had been involved in violent conduct against his wife that was "extremely serious conduct, especially having regard to the new directions in Directions [sic] 79 that any violent conduct against a female is serious, regardless of the sentence imposed".
The Tribunal took no steps to draw to the appellant's attention that the Minister had raised a new issue based on para 13.1.1(1)(b), namely, that the evidence of domestic violence was to be viewed "very seriously" in assessing the nature and seriousness of the appellant's conduct for the purpose of the primary consideration of protection of the Australian community. Nor did the Tribunal take any steps to give the appellant any opportunity to address the new issue. The appellant did not address the new issue in his closing submissions.
Ultimately, the Tribunal found that its findings regarding the protection of the Australian community and the expectations of the Australian community weighed strongly in favour of the Tribunal refusing to revoke the visa cancellation. It formed the opinion that the "primary obligations" of protection of the Australian community and the expectations of the Australian community outweighed the other considerations that were in favour of revocation of the decision to cancel the visa, namely, the best interests of minor children, the strength, nature and duration of the appellant's ties to Australia and the extent of the impediments to the appellant if he were removed from Australia. The Tribunal concluded that, having regard to all of the relevant considerations in Direction 79, it would not be appropriate for the Tribunal to exercise the discretion to revoke the mandatory cancellation of the appellant's visa.
a) Did the Tribunal fail to draw the appellant's attention on a new issue raised by the Minister based on para 13.1.1(1)(b), namely, that the evidence of domestic violence was to be viewed "very seriously" in assessing the nature and seriousness of the appellant's conduct for the purpose of the primary consideration of protection of the Australian community?
b) Did the Tribunal fail to give the appellant any opportunity to address the new issue?
Content and proof of materiality of a denial of procedural fairness
In Hossain v Minister for Immigration and Border Protection, a majority comprising Kiefel CJ, Gageler and Keane JJ enunciated a common law principle of statutory interpretation. That principle is that a statute conferring decision-making authority is "ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance"[. It is well recognised that, generally speaking, legislation should be construed to discourage unnecessary litigation, to reduce wasting time and cost and to preserve the dignity of the law. And, in particular, in relation to the Act, this Court has declined to attribute to the legislation the impractical intention that an error in process, which cannot have affected the outcome of the process, requires that the process be repeated.
In MZAPC, a majority comprising Kiefel CJ, Gageler, Keane and Gleeson JJ explained the evolution of the contemporary understanding of jurisdictional error that supported that principle of interpretation. Their Honours further explained:
"The principle accommodates determination of the limits of decision-making authority conferred by statute to the reality that '[d]ecision-making is a function of the real world' by distinguishing the express and implied statutory conditions of the conferral from the statutory consequences of breach and by recognising that the legislature is not likely to have intended that a breach that occasions no 'practical injustice'[ will deprive a decision of statutory force."
As explained in MZAPC, the materiality of a breach requires consideration of "the basal factual question of how the decision that was in fact made was in fact made". This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with "as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined". The burden falls on the plaintiff 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 had there been compliance with that condition".
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of "reasonable conjecture" is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture" does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of "reasonable conjecture", correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.
Proof of materiality in this case
This case is analogous to Stead v State Government Insurance Commission. There, the record before the intermediate appellate court showed that the plaintiff's counsel was stopped by the trial judge from submitting that a witness's evidence should be disbelieved. The witness had given evidence that there was no causal link between the plaintiff's personal injury and a motor vehicle accident. In his judgment, the trial judge accepted the witness's evidence and rejected the plaintiff's case on causation. The realistic possibility of a different outcome was demonstrated on the face of those elements of the appellate record of the trial, without any evidence as to what counsel could have said if he had been allowed to complete his submission. Similarly, in this case the only historical facts that the appellant was required to prove appeared from the Tribunal's reasons for decision.
The Minister correctly acknowledged that, in many, if not most, cases where an applicant has been deprived of a chance to make submissions on a topic of relevance, "reasonable conjecture" from established facts about the decision-making process will readily show a reasonable possibility that the outcome would have been different. The Minister submitted that, because of the "quite particular circumstances" of this case, the appellant was required to adduce evidence of how the question of domestic violence could have been addressed by him or his wife in further material. The "particular circumstances" were said to be that the topic of domestic violence had already been addressed in the evidence to some degree, albeit in relation to a different issue.
Further, the Minister accepted that if, when the Minister sought to rely on the material about domestic violence in connection with the consideration of protection of the Australian community, the appellant had been invited to address that new issue by way of further evidence or submissions, the appellant would have taken that opportunity to address the new issue by leading evidence and/or presenting submissions to the Tribunal.
It may be accepted that, the Minister having raised the issue of domestic violence by the appellant as it affected the best interests of the appellant's children, the appellant had strong reasons to rebut the material before the Tribunal on that issue, to the extent that he could, or otherwise to negate or minimise its significance in relation to that consideration. It may also be accepted that the appellant addressed the issue raised by the Minister by providing the wife's letter to the Tribunal. It is reasonable to infer that the letter was prepared in response to the police reports obtained by the Minister under summons. It may also be accepted that the appellant was afforded an opportunity to address the issue raised by the Minister through cross-examination and questions from the Tribunal at the hearing. Further, it may be accepted, given that the appellant accepted the correctness of the police reports, that it is extremely unlikely that the appellant could have said or done anything to avoid findings that the two incidents of domestic violence described in those reports did occur.
As the Minister put it, had the appellant been afforded procedural fairness, the best he probably could have done was to place the domestic violence incidents in some context that might have persuaded the Tribunal that they were less serious than they appeared from the police reports or otherwise that they should not be viewed "very seriously" in connection with the consideration of protection of the Australian community. The Minister argued that this possibility was immaterial because the incidents, as recorded in the police reports and explored in cross-examination, were objectively serious; the wife's letter already sought to contextualise the appellant's conduct and to stress their mutual commitment to their relationship; and the appellant's case was that he was remorseful for everything he had done and was a "changed man".
The Minister's argument must be rejected. As explained in MZAPC, it is necessary to consider how the Tribunal's decision was in fact made. That decision was made by weighing the range of considerations in Ministerial Direction 79 that were of relevance to the appellant, following an evaluation of the appellant's history, circumstances and prospects as appropriate, in order to make findings about each of those considerations. In that context, additional evidence and submissions directed to mitigating the significance of the evidence of domestic violence could realistically have affected the Tribunal's evaluative fact finding concerning the nature and seriousness of the appellant's conduct and, ultimately, the outcome of the Tribunal's review. There was no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair. As a matter of reasonable conjecture, and as Wigney J reasoned, the appellant may have been able to present evidence on his own behalf or from his wife, and to make submissions that could have led to a different characterisation by the Tribunal of the nature of the appellant's offending. That evidence and those submissions may have provided more detail about the domestic violence incidents, placing them in the relevant context or providing relevant detail. The possibility that the appellant could have presented more to the Tribunal about how the incidents were to be evaluated could not be foreclosed by what was already before the Tribunal.
The appeal should be allowed and the first respondent should pay the appellant's costs of the appeal. Orders 1 to 4 of the Full Court of the Federal Court of Australia dated 9 October 2020 should be set aside and, in lieu thereof, it be ordered that: (1) the appeal to the Full Court of the Federal Court of Australia be allowed; (2) the orders made by Colvin J dated 18 October 2019 be set aside and, in lieu thereof, it be ordered that: the application for review be allowed; the decision of the Tribunal dated 4 April 2019 be set aside; the application be remitted to the Tribunal to be heard and determined according to law; and the first respondent pay the applicant's costs; and (3) the first respondent is to pay the appellant's costs of the appeal to the Full Court of the Federal Court of Australia.