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Federal Court of Australia |
Last Updated: 30 October 2008
FEDERAL COURT OF AUSTRALIA
Kasupene v Minister for Immigration & Citizenship [2008] FCA 1609
MIGRATION – applicant in
detention – early final hearing – unrepresented party –
identification of issues to be resolved
– duty of decision-maker to assist
– no failure to consider relevant considerations – reasonable
opportunity to
be heard – review of reasons – findings of fact made
and evidence referred to – no need for all findings on all
facts
Administrative Appeals Tribunal Act
1975 (Cth), ss 39, 43(2B)
Migration Act 1958 (Cth), s
476A
A v Minister for Immigration &
Multicultural Affairs [1999] FCA 227 cited
Abebe v Commonwealth
[1999] HCA 14, 197 CLR 510 followed
Aporo v Minister for Immigration
& Citizenship [2008] FCA 102 cited
Australian Trade Commission v F
& F Asia Pty Ltd (1996) 69 FCR 252 applied
Awan v Minister for
Immigration and Multicultural and Indigenous Affairs [2002] FCA 594, 120 FCR
1 followed
Black v Minister for Immigration & Citizenship [2007]
FCAFC 189, 99 ALD 1 applied
Bushell v Repatriation Commission (1992)
175 CLR 408 followed
Cockrell v Minister for Immigration and
Citizenship [2007] FCA 1779, 100 ALD 52 cited
Cockrell v Minister for
Immigration & Citizenship [2008] FCAFC 160 applied
Drake v
Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
followed
Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430
cited
Green v Minister for Immigration & Citizenship [2008] FCA
125 cited
Kuswardana v Minister for Immigration and Ethnic Affairs
(1981) 54 FLR 334 applied
Mazhar v Minister for Immigration and
Multicultural Affairs [2000] FCA 1759, 183 ALR 188 applied
McKeown v
Repatriation Commission (1995) 39 ALD 30 applied
Minister for
Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
followed
Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996)
185 CLR 259 followed
Minister for Immigration and Multicultural Affairs v
Yusuf [2001] HCA 30, 206 CLR 323 followed
Minister for Immigration and
Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, 128 FCR 553
followed
MZXLB v Minister for Immigration & Citizenship [2007] FCA
1588 cited
MZXMG v Minister for Immigration & Citizenship [2007]
FCA 1884 followed
NABE v Minister for Immigration and Multicultural and
Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1 followed
NADB v
Minister for Immigration and Multicultural Affairs [2002] FCA 200, 189 ALR
293 cited
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509 followed
Nipperess v
Military Rehabilitation and Compensation Commission [2006] FCA 943, 91 ALD
362 cited
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985)
6 FCR 155 followed
Re Kasupene and Minister for Immigration &
Citizenship [2008] AATA 766 cited
Rogers v Law Coast Mortgages Pty
Ltd [2002] FCA 181 applied
Sales v Minister for Immigration &
Multicultural Affairs [2006] FCA 1807 applied
Scorgie v Minister for
Immigration & Citizenship [2008] FCAFC 101 applied
Secretary,
Department of Family and Community Services v Verney [2000] FCA 570, 60 ALD
737 applied
Sullivan v Department of Transport (1970) 20 ALR 323
followed
SZITR v Minister for Immigration and Multicultural Affairs
[2006] FCA 1759, 44 AAR 382 cited
SZLMA v Minister for Immigration
& Citizenship [2008] FCA 69 followed
Tapel v Minister for
Immigration & Citizenship [2008] FCA 857 applied
Transport
Accident Commission v Bausch (1998) 4 VR 249 cited
Vu v Minister for
Immigration and Citizenship [2008] FCAFC 12, 101 ALD 454 followed
Weti
v Minister for Immigration & Citizenship [2007] FCA 1531
considered
DYLAN
MURPHY KASUPENE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND
ANOR
NSD 1515 OF 2008
FLICK J
29 OCTOBER
2008
SYDNEY
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AND:
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THE ORDERS OF THE COURT ARE:
1. The Application be dismissed.
2. The Applicant is to pay the costs of the First
Respondent.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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BETWEEN:
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DYLAN MURPHY KASUPENE
Applicant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent |
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JUDGE:
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FLICK J
|
|
DATE:
|
29 OCTOBER 2008
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
1 The Applicant in this proceeding is a citizen of New Zealand.
2 He first entered Australia in October 1992 and left within two weeks. He again entered Australia in August 2000. On the latter occasion he was granted a special category visa. Both before and after entering Australia the Applicant committed a number of criminal offences. His visa was cancelled by a delegate of the Minister on 5 June 2008 pursuant to s 501(2) of the Migration Act 1958 (Cth). He appealed that decision to the Administrative Appeals Tribunal and on 29 August 2008 the Tribunal affirmed the decision: Re Kasupene and Minister for Immigration & Citizenship [2008] AATA 766.
3 On 23 September 2008 the Applicant filed a Notice of Appeal in this Court and an Affidavit. The Notice of Appeal -- read together with the Affidavit -- identified the two grounds of appeal sought to be relied upon as being:
(i) a failure to have regard to a relevant consideration, namely the hardship that the decision would occasion to the Applicant; and
(ii) a failure on the part of the Tribunal to set out its findings on the question as to hardship and a failure to refer to the evidence upon which the findings were based -- as was required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth).
4 An initial difficulty confronting the Applicant was the fact that the decision of the Tribunal is a "privative clause decision" and hence is not susceptible of appeal. The inability to appeal arises by reason of s 476A(1)(b) and (d) of the 1958 Act which relevantly provides as follows:
Limited jurisdiction of the Federal Court (1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if: ... (b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or ... (d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975. (2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.5 Although the decision of the Tribunal was not susceptible of appeal, original jurisdiction is conferred on this Court by s 476A(1)(b) and (2) to review the Tribunal’s decision. The jurisdiction conferred is the same as that of the High Court of Australia under s 75(v) of the Constitution. In order to obtain relief in this Court’s original jurisdiction, the Applicant must demonstrate jurisdictional error: Cockrell v Minister for Immigration & Citizenship [2008] FCAFC 160 at [4]. The Minister did not deny that a failure to consider a relevant consideration could amount to jurisdictional error (eg, Aporo v Minister for Immigration & Citizenship [2008] FCA 102; see also: Green v Minister for Immigration & Citizenship [2008] FCA 125 at [21]–[29], [2008] FCA 125; 100 ALD 346); nor was any submission advanced that a failure to comply with s 43(2B) of the 1975 Act may not constitute jurisdictional error. The submission which was advanced on behalf of the Minister was that the Tribunal had committed no error, be it jurisdictional or otherwise.
6 Although the constraint imposed by s 476A(1) cannot be disregarded, it did not appear that anything would have been gained had the Applicant been directed to file an application seeking judicial review as opposed to treating the Notice of Appeal as though it were such an application. The Minister did not oppose this course. It is not considered that such a direction would have facilitated the expeditious hearing and resolution of the proceeding. The matter first came before the Court on 13 October 2008. The Applicant was then in detention at Villawood Detention Centre and it was desirable to have his grievances resolved as quickly as was consistent with a proper resolution of the issues raised in his Notice of Appeal. It is the practice of this Court to hear such cases as quickly as possible: eg, Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594 at [42], [2002] FCA 594; 120 FCR 1 at 11; SZLMA v Minister for Immigration & Citizenship [2008] FCA 69 at [1]. With the co-operation of those appearing for the Respondent Minister, arrangements were made to have the relevant evidence filed and served by 15 October 2008. The matter was listed for final hearing on 17 October 2008.
7 The Applicant appeared before the Court on 17 October 2008 and was then unrepresented. Subsequent to that hearing, further written submissions were filed on behalf of both the Respondent Minister and the Applicant. The most recent written submissions advanced on behalf of the Applicant were received this morning.
8 Construing the Notice of Appeal as an application for judicial review, however, only confronted the Applicant with two further difficulties, namely:
a) whether or not the Tribunal did in fact fail to consider the impact of the decision upon the Applicant and the hardship which would be occasioned to him if the delegate’s decision was affirmed; and
b) whether or not the Tribunal was, in any event, "bound" to take such a consideration into account.
A failure to take a consideration into account only gives rise to a reviewable error if the consideration was one which a decision-maker was "bound" to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39–41 per Mason J.
9 The simple fact is that the Tribunal did consider the hardship which would be occasioned to the Applicant if the decision cancelling his visa was to be affirmed and it did make findings which referred to the evidence. The Applicant was given an opportunity for the merits of his position to be considered. Regrettably for the Applicant, the Administrative Appeals Tribunal resolved the merits of his claims adversely to him.
10 Even if there had been a failure to consider the impact upon the Applicant of a decision affirming the cancellation of his visa, it is not considered that any jurisdictional error would in any event have been committed by the Tribunal.
TRIBUNAL’S ASSESSMENT OF THE EVIDENCE & REASONS PROVIDED: IMPACT UPON THE APPLICANT?
11 In challenging the delegate’s decision before the Administrative Appeals Tribunal, the Applicant was relevantly entitled to:
a) a reasonable opportunity to present his case;
b) a determination in accordance with law as to what the Tribunal considered to be the "correct or preferable" decision on the facts then before it; and
c) a statement of the reasons for the decision reached, that statement including a statement of material findings of fact and a reference to the evidence upon which those findings were made.
A determination as to whether the Tribunal has failed to take into account a relevant consideration -- in the present proceeding, hardship to the Applicant -- necessarily depends upon the evidence before the Tribunal, the submissions in fact advanced for resolution, the ambit of the discretion vested in the Tribunal, and a consideration as to whether the Tribunal has adequately set forth its findings and reasons for the conclusion in fact made.
12 No error may be exposed where (for example) the Tribunal does not resolve a submission which was never advanced; and no error may be exposed if the Tribunal’s reasons -- properly construed -- adequately explain the decision made.
13 Before the Tribunal the Applicant also appeared unrepresented. The evidence in support of his claim was his own evidence; the evidence of his father and the Applicant’s younger brother and sister; and three letters of support, one from a Justice of the Peace who had known the Applicant for about five years, one from a former employer, and one from a person who had come to regard the Applicant as a trustworthy and hard worker. The Applicant, his father, and his brother and sister all gave oral evidence before the Tribunal.
14 When appearing before the Tribunal, s 39 of the Administrative Appeals Tribunal Act provides that the Tribunal is to "ensure that every party ... is given a reasonable opportunity to present his ... case". The opportunity must be a "real and meaningful opportunity" and not a "hollow shell or an empty gesture": cf Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31], [2000] FCA 1759; 183 ALR 188 at 194–5; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [37], [2003] FCAFC 126; 128 FCR 553 at 561. But it is no part of the Tribunal’s task to ensure that a party takes the best advantage of that opportunity (Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], [2000] FCA 570; 60 ALD 737 at 748). "Neither the Act nor the common law imposes upon the tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled": Sullivan v Department of Transport (1970) 20 ALR 323 at 343 per Deane J. And it is no part of the Tribunal’s task to make out an applicant’s case for him: cf Abebe v Commonwealth [1999] HCA 14 at [187], [2004] HCA 32; 197 CLR 510 at 576 per Gummow and Hayne JJ.
15 Although an unrepresented applicant is relevantly in no different position, both courts and tribunals are conscious of the difficulties confronting unrepresented litigants and are conscious of ensuring that any hearing is fair and just: Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181 at [26] per Finn J. See also: Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509. Brennan, Deane, Toohey, Gaudron and McHugh JJ there observed:
A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.See also: Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943 at [51]–[54], [2006] FCA 943; 91 ALD 362 at 372 per Cowdroy J.
16 The task to be undertaken by the Tribunal in the present proceeding -- as in other applications coming before it -- was essentially a consideration of the evidence adduced and the submissions advanced. Its task was to resolve the case sought to be advanced by the parties in a manner consistent with determining the "correct or preferable decision". That task was one of determining the correct or preferable decision on the basis of the material then before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Bowen CJ and Deane J there held (at 419):
The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.These observations are oft cited with approval: eg, Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 440 per Mason CJ, Deane, Toohey and Gaudron JJ. See also: Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J.
17 In determining the "correct or preferable" decision, the Tribunal will ordinarily be best "guided by the parties" in identifying the issues: Sullivan v Department of Transport (1970) 20 ALR 323 at 342. See also: A v Minister for Immigration & Multicultural Affairs [1999] FCA 227 at [36] per Katz J; NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200 at [21], [2002] FCA 200; 189 ALR 293 at 298 per Hely J. Deane J, with whom Fisher J agreed, further observed in Sullivan however that "[c]ircumstances may ... arise in which ... a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute": (1978) 20 ALR 323 at 342. It is "the duty of the Tribunal", it has been said, "to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made": Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429–30. Before the Tribunal there is no requirement that "the point be taken": Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 348 per Fox J.
18 In determining the "correct or preferable" decision the Tribunal must also be satisfied that there is "enough material" before it on a matter of central importance to the decision to be reached (Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343 per Bowen CJ). And "[t]he tribunal [is] required to make the correct or preferable decision on the material before it, regardless of the form which the parties’ submissions [take]": McKeown v Repatriation Commission (1995) 39 ALD 30 at 33 per Jenkinson J. An error of law may be committed if the Tribunal ignores a central issue, even if no submission at all is directed to it: Australian Trade Commission v F & F Asia Pty Ltd (1996) 69 FCR 252 at 266 per Carr J. See also: Transport Accident Commission v Bausch (1998) 4 VR 249 at 263 per Tadgell JA (Batt and Buchanan JJA agreeing).
19 Where one of the parties before the Tribunal is unrepresented, as in the present proceeding, the Tribunal is thus not absolved from itself considering the state of the evidence before it when determining the "correct or preferable" decision. The fact that an unrepresented party may not have advanced evidence peculiarly within his control and of central relevance to the decision to be made, nor made a submission in respect to such material as is before the Tribunal, may make the task of the Tribunal more difficult. In the case of an unrepresented party, the Tribunal will frequently not have the benefit of any "guidance" being provided by that party. But the task of the Tribunal remains the same. Not to be ignored is the obligation now imposed upon the person who made the decision to "use his or her best endeavours to assist the tribunal to make its decision in relation to the proceeding": Administrative Appeals Tribunal Act, s 33(1AA). The less important the available evidence or an available submission may be, the lesser may be the necessity for either the Tribunal or a respondent to address the issue. The more important and the more centrally relevant available evidence or an available submission may be to the decision to be made, the greater may be the necessity for the issue to be addressed and resolved -- even if not otherwise addressed by an unrepresented party. Where the line is to be drawn will obviously depend upon all of the circumstances of an individual case.
20 But it is not a line to be drawn so as to impose upon the Tribunal any general duty to itself secure evidence which has not been otherwise adduced or any general duty to pursue submissions not otherwise advanced. The need to inquire into facts not otherwise before the Tribunal may not be confined to those facts going to jurisdiction, as in Kuswardana; but should be confined to facts of central importance to the decision to be made: cf Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. And the need to consider submissions or issues not raised by the parties may equally normally be confined to those submissions which are submissions of substance which emerge from the factual material before the Tribunal: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1. It was said there that a "judgment that the Tribunal has failed to consider a claim not expressly advanced is ... not lightly to be made. The claim must emerge clearly from the materials before the Tribunal": at [68]. See also: SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759 at [50], [2006] FCA 1759; 44 AAR 382 at 397 per Moore J; MZXMG v Minister for Immigration & Citizenship [2007] FCA 1884 at [13]–[14] per Middleton J. In MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 at [14] Finkelstein J referred to NABE and observed that there "is no precise standard for determining when an issue is ‘raised squarely’, but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it".
21 As a practical matter, a Court may be more willing to draw the line in favour of an unrepresented party than a party represented by counsel. Or, expressed differently, the issue may be more likely to arise in those cases where one party is not represented.
22 In performing its statutory functions, the Tribunal in the present proceeding also had to apply a direction given by a former Minister under s 499(1) of the Migration Act on 23 August 2001, namely a direction titled "Direction – Visa Refusal and Cancellation under Section 501 – No 21". Section 499(2A) provides that the Tribunal "must comply with a direction under subsection (1)".
23 In Sales v Minister for Immigration & Multicultural Affairs [2006] FCA 1807 this Direction was described as "a comprehensive and careful document". Allsop J there observed:
[14] The direction is a comprehensive and careful document of 11 pages. It makes clear in the preamble that the exercise of the discretion whether or not to cancel the visas will take into account a wide range of factors including the protection and the expectations of the Australian community, the nature of the crimes committed, the non-citizen’s links to Australia and any relevant international law obligations of Australia. The preamble went on to say that the purpose of refusing or cancelling a visa under s 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community. The task to prepare material for a consideration of such matters, objectively understood, is wide-reaching and significant.Given the terms of s 499(2A), it was Direction No 21 which properly provided the structure for the Tribunal’s reasons and its consideration of the evidence.
24 Relevantly, Direction No 21 provides as follows:
2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. ... 2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children. ... 2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include: ... (c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence). ... 2.6 It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious: ... (f) ... assault or any other form of violence against persons; ... (l) serious theft (including "white collar" crimes): • such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government ... ... 2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways: (a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences ... ...The Tribunal in the present proceeding addressed, as it was required to do, those matters set forth in Direction No 21.
25 Consistent with the Direction, the Tribunal addressed the three "primary" considerations set out in Direction No 21, being:
• the protection of the Australian community, and members of the community;
• the expectations of the Australian community; and
• the best interests of the child.
26 The Tribunal then proceeded to consider what it termed "other considerations". It is in this part of the Tribunal’s reasons that such consideration as was given to the effect of the decision upon the Applicant was addressed. The Tribunal’s reasons there state as follows:
Other considerations [85] With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, "it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations". These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct. [86] The applicant has no business or similar connections with Australia that would be jeopardised by visa cancellation. On the other hand, his father, siblings and a number of aunts and uncles live in Australia and they would suffer some emotional hardship if he were removed to New Zealand. Although he claimed to have no family in New Zealand, his grandmother and three aunts live in Auckland and his father is in regular contact with them. [87] He has lived in Australia for only eight years, having not arrived here until he was 20 years of age. His education and formative years were in New Zealand. He would face no cultural or language problems in reintegrating into New Zealand society. [88] There is some evidence of rehabilitation. He has undertaken useful courses, is no longer using drugs and has a good attitude to work (eg, Exhibit A6). His progress towards rehabilitation has not, however, been put to the test in the wider community because of the time he has spent in custody. He does not have a great deal of drug-free time in the community. He has given firm assurances of reform and rehabilitation in the past but has relapsed. Notably, he re-offended within weeks of receiving a suspended sentence conditioned on an intensive correction order in 2004. He went on to accumulate numerous convictions after that time. [89] Importantly, he has previously been warned about the risk of deportation in the event of re-offending. While he did not receive the actual final letter of warning, he received all the preceding documentary material and discussed the matter with a prison counsellor. He was actively involved with communicating with the department, and in arranging for his family to do so, in 2003 and 2004. Yet he resumed his established pattern of re-offending. [90] In my view, the primary considerations of community protection and expectations outweigh the primary consideration of the best interests of the children and the other considerations in this case. [91] The decision under review is affirmed.27 The fact that the Tribunal did not use the language of "hardship" that would be suffered by the Applicant -- as opposed to the "hardship" that would be occasioned to others -- it is considered, is not decisive. That which is decisive against the Applicant is the fact that the Tribunal considered the entirety of the evidence, including the evidence as to the effect that the decision would have upon him. Subject to a proper application of Direction No 21, the weight to be given to the considerations addressed is a matter for the Tribunal alone: cf Black v Minister for Immigration & Citizenship [2007] FCAFC 189 at [33]–[37], [2007] FCAFC 189; 99 ALD 1 at 8–9; Tapel v Minister for Immigration & Citizenship [2008] FCA 857 at [27].
28 Considerable reservation was expressed during the hearing on 17 October 2008 as to whether the Applicant had been given a "reasonable opportunity" to advance before the Tribunal his case as to "hardship". That "opportunity", it was then suggested, involved more than the mere allocation of time, a hearing room and an opportunity to appear. With the assistance of Counsel for the Respondent Minister, it appeared however that all that the Applicant wished to say as to "hardship" had been said. All, or substantially all, of the evidence that could have been adduced in respect to "hardship" had been made available to the Tribunal.
29 In the present proceeding it is considered that the Applicant was given a "reasonable opportunity" to present his case and that his lack of representation has not denied him a meaningful opportunity to advance his case. In particular, a reading of both the transcript and the reasons of the Tribunal disclose a careful consideration being given to both Direction No 21 and its application to the evidence. No instance of unfairness emerges from a reading of the transcript. No instance emerges of any submission being advanced by the Applicant not being considered. Moreover, there was nothing before the Tribunal which imposed upon either the Respondent Minister or the Tribunal itself any obligation or requirement to consider and resolve anything other than the evidence and the submissions in fact being advanced. It was properly "guided by the parties in identifying the issues". An absence of legal representation is not to be equated in all cases with a denial of a "reasonable opportunity" to present a case.
30 The most that could be said in the present Application is that, had the Applicant been represented before the Tribunal, there may possibly have been further evidence as to the difficulties which would confront the Applicant if he were to return to New Zealand and a specific submission that the hardship to which he would be exposed was a matter in need of consideration. The delegate’s decision referred only in passing to the difficulties to be confronted by the Applicant. The reasons provided for that decision thus stated in part as follows:
[25] I noted that Mr KASUPENE has stated that he fears for his welfare if he is returned to New Zealand on account of his lack of support networks in that country. I further noted that Mr KASUPENE spent all of his formative years in New Zealand and that his period of residence in Australia, while significant, is not so long that he may be expected to have lost his cultural connection with his homeland.Before the Tribunal, a substantial part of the cross-examination of the Applicant was directed to his criminal history. Few questions focussed upon the hardship to be faced by the Applicant if the delegate’s decision was to be affirmed. The Applicant’s written statement contained the following brief reference:
... I have a good relationship with my father, who raised me as a single parent when he and my mother separated when I was very young. I am forever thankful and proud of my father. One day, I would like to think he would feel the same way about my achievements and me. It is a very daunting prospect to think that I would possibly be deported. Most importantly all of my immediate family are here in Australia. I would hate to be far away from them. If I have to move to New Zealand I would have nowhere to live and worry about the negative situation I would be in as well as the negative influences around me.Such evidence could possibly have been supplemented had the Applicant been represented. Before the Tribunal there was, perhaps not surprisingly, no submission advanced by the Applicant which addressed the issues in need of resolution. No submission was advanced by him as to either the terms of Direction No 21 or to the hardship he would suffer. His concluding statements made to the Tribunal were an apology and an understandable plea "to remain in this country and get back into work instead of being in a detention centre or in a gaol wasting taxpayer’s money". The plea itself, however, may well have been a more effective submission as to the hardship facing the Applicant than any formal submission made by counsel.
31 But the fact that he was unrepresented before the Tribunal has not denied him a "reasonable" opportunity to present his case. Each of the witnesses called by the Applicant had previously prepared a written statement and each was tendered. The Applicant was asked at the end of such cross-examination as took place on behalf of the Minister whether there were any further questions he wished to ask of each witness. The "reasonable opportunity" to which s 39 of the 1975 Act refers is not to be judged by reference to what might have occurred had the Applicant been legally represented. The opportunity is to be judged by reference to the facts and circumstances of an individual case. The case confronting the present Applicant was within a comparatively simple legal and factual context.
32 The fact of the matter in the present proceeding is that the Applicant’s long and repeated criminal past has ultimately been counted against him and led the Tribunal to affirm the decision of the Minister’s delegate. The fact that the father and son will most probably be separated if the Applicant is returned to New Zealand is a matter of particular regret. But it is no part of the function of this Court to review the merits of either the delegate’s decision or the decision of the Tribunal. Such is not the confined task entrusted to this Court by s 476A of the Migration Act.
33 The terms of Direction No 21, and the requirements of s 39, it may finally be noted, were considered by the Full Court in Scorgie v Minister for Immigration & Citizenship [2008] FCAFC 101. There was there held to be on the facts of that case no failure to comply with s 39. And in Weti v Minister for Immigration & Citizenship [2007] FCA 1531 there was no breach of s 39 occasioned by the Tribunal adjourning a proceeding on the application of an unrepresented applicant -- but only for one day. The applicant had there known of the unavailability of her solicitor for some time. The factual issues were said not to be complex and there were no legal issues. Edmonds J was there "not persuaded that the Tribunal’s decision to limit the adjournment of the proceedings to one day, resulting in the almost inevitable consequence that she would not be legally represented at the hearing on the following day, constitutes a denial of natural justice or procedural fairness in the form of a failure to provide her with a reasonable opportunity to adequately present her case": [2007] FCA 1531 at [38].
34 Whether or not it would be preferable for Direction No 21 to make express reference to the hardship that a decision may have upon an applicant may be left to one side. In the absence of explanation, however, it seems surprising that there is no express requirement to consider the hardship which the cancellation of a visa pursuant to s 501 of the 1958 Act may cause.
35 Having considered the evidence and the submissions advanced, and extended to the Applicant a "reasonable opportunity" to present his case, the remaining task of the Tribunal was that set forth in s 43(2B) of the Administrative Appeals Tribunal Act, namely to make its findings on material questions of fact and refer to the evidence upon which those findings were based. That sub-section provides as follows:
Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.This provision does not require the Tribunal to set forth all findings of fact, but only those findings on "material questions of fact": cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [67]–[68], [2001] HCA 30; 206 CLR 323 at 345–6. A more focussed submission in respect to hardship may have led the Tribunal to make a further finding. But the failure to make such a possible further finding does not expose reviewable error on the part of the Tribunal.
36 When determining whether the reasons for decision of the Tribunal have adequately dealt with the particular legal and factual issues which were advanced before it, the Court must take into account a variety of factors. These include the comparative importance (or lack of importance) of any particular submission being advanced for determination and whether the evidence being presented raises any issue in need of resolution (even if not expressly the subject of a submission, especially in the case of an unrepresented party). In the present proceeding, and in accordance with Direction No 21, the Tribunal gave consideration to those matters which the Minister and the Government "directed" should be given "particular importance" and those matters which it directed should be given "less individual weight". Relevantly, "hardship" to a party whose visa was cancelled was not a matter specifically addressed by the Direction.
37 Also relevant to the making of that determination is a proper understanding as to the role played by a statutory requirement to provide reasons. A primary purpose in imposing such a requirement is to inform the parties as to why their evidence or arguments have prevailed or been rejected. Reasons provided by an administrative tribunal, it is well accepted, are not to be read with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259. In a passage which is now oft-cited, Brennan CJ, Toohey, McHugh and Gummow JJ there made the following observations as to the proper role of a reviewing court when considering a statement of reasons provided by the Administrative Appeals Tribunal:
When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [1993] FCA 322; [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. ... (citations omitted)So construed, the reasons of the Tribunal in the present proceeding reveal a careful consideration of the evidence that was presented and a careful consideration of the case being advanced by the Applicant. No doubt because the Applicant was unrepresented, no clear submission was advanced that any particular aspect of hardship to the Applicant was a discrete matter which had to be separately addressed and resolved in any manner different to that set forth in the Tribunal’s reasons. "Hardship", it must be recognised, is a matter which may manifest itself in any one of a number of different ways. To that extent, it is a state of indeterminate content. But no particular piece of evidence could be identified which gave rise to any particular aspect of "hardship" which was not addressed by the Tribunal in its reasons.
38 Not surprisingly, the reasons of the Tribunal address the terms of Direction No 21. And, even though that Direction does not mention hardship to the Applicant as a matter specifically to be addressed, it was inevitable that a decision affirming the delegate’s decision would operate to deny to him an ability to remain in Australia. His desire to remain was presumably the reason why he sought review by the Tribunal. Even though such reference as was made to the effect of the decision upon the Applicant may have been dealt with within the context of the Direction itself, hardship to the Applicant remained a matter taken into account by the Tribunal and adequately addressed by it in the reasons provided.
39 The manner in which the Tribunal has resolved the evidence and submissions advanced before it, it is considered, does not expose the Tribunal to any sustainable contention that it failed to consider the hardship that affirming the decision under review would occasion the Applicant, nor to any sustainable contention that it failed to make those findings of fact material to the decision it made.
HARDSHIP: A CONSIDERATION WHICH THE TRIBUNAL WAS BOUND TO TAKE INTO ACCOUNT?
40 A final difficulty confronting the Applicant is equally fatal to his success.
41 Even if there had been a failure on the part of the Tribunal to consider the hardship which the decision would have upon him, such a failure would not have amounted to a failure to consider a matter which the Tribunal was "bound" to take into account, and any such failure would not have amounted to jurisdictional error. A comparable argument was advanced and rejected in Cockrell v Minister for Immigration & Citizenship [2008] FCAFC 160. The trial judge had there rejected the argument as follows:
[53] I do not think the Tribunal member was bound to consider hardship to the applicant himself. It is possible that in any event he did so when considering the best interests of [the Applicant’s son], but even if he did not, he did not err in law in not doing so. ...: Cockrell v Minister for Immigration and Citizenship [2007] FCA 1779, 100 ALD 52.An appeal was dismissed. Gray, Finn and Mansfield JJ relevantly concluded:
[31] Counsel for the appellant did not refer the Court to any other document, or transcript of evidence, in which any evidence or submission of hardship to the appellant was put before the Tribunal. Any evidence and submissions in support of the proposition that the appellant would suffer hardship is therefore vague, and is usually found in the context of assertions of hardship to others, particularly [his son]. It is difficult to see how the Tribunal could come to the conclusion that hardship to the appellant was a relevant factor, appropriate for it to take into account under cl 2.17 of Direction No 21. The specific mention in cl 2.17(c) of hardship to immediate family members lawfully resident in Australia tends to make it doubtful that hardship to the person cancellation of whose visa is being considered would be regarded as a relevant matter, at least in most cases. It must be assumed that the cancellation of a visa of a person who opposes that cancellation would cause that person hardship in any event. Unless a case of specific hardship were put before the decision-maker, it can hardly be expected that the decision-maker would take into account such a general consideration. To the extent to which hardship to the appellant by separation from [his son] is implicit in the cancellation of the appellant’s visa, it is important that Direction No 21 only makes specific reference (in the circumstances of this case) to hardship to [his son]. It is at least implicit in the Tribunal’s finding that the prospects of the appellant and [his son] developing a close relationship were doubtful that the Tribunal’s view was that the appellant’s removal to the United States would make no significant difference to his relationship with [his son], and therefore to any detriment he suffered from the absence of a such a relationship.42 Similarly, in Vu v Minister for Immigration and Citizenship [2008] FCAFC 12, 101 ALD 454 Tamberlin J concluded:
[13] The second submission involved the assumption, as his Honour pointed out, that it was a relevant fact for the minister to consider whether Mr Vu could receive medical treatment, in particular methadone treatment, for his heroin addiction if he goes back to Vietnam. His Honour found that the minister was aware of that fact and took it into account when making her decision. We have grave doubts that any of the particular matters of hardship identified by Mr Vu, even if not taken into account by the minister, would show jurisdictional error in her decision. The minister clearly addressed both the issue of hardship generally and each of the topics to which the direction issued under s 499(1) of the Act required the decision-maker to consider when exercising discretion. The particular matters of hardship raised by Mr Vu are not matters which, either expressly or by necessary implication from s 501 of the Act, required the minister to have regard to each of them: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1981) 162 CLR 24; 66 ALR 299; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; [2001] HCA 30.North and Mansfield JJ agreed.
43 The same comments and conclusions are equally applicable to the facts of the present case.
CONCLUSIONS
44 The Application should be dismissed. There is no reason why the Applicant should not pay the costs of the First Respondent.
ORDERS
45 The orders of the Court are:
1. The Application be dismissed.
2. The Applicant is to pay the costs of the First Respondent.
Associate:
Dated: 29
October 2008
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Counsel for the First Respondent:
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G Kennett
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Solicitor for the First Respondent:
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Phillips Fox
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