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Federal Court of Australia - Full Court |
Last Updated: 15 September 2009
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123
CORRIGENDUM
MITA
TAUPOPOKI GEORGE APORO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and
ANOR
NSD 179 of 2009
SPENDER, MOORE & FOSTER
JJ
11 SEPTEMBER 2009 (CORRIGENDUM 15 SEPTEMBER
2009)
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA
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NEW SOUTH WALES DISTRICT REGISTRY
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GENERAL DIVISION
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NSD 179 of 2009
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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MITA TAUPOPOKI GEORGE APORO
Appellant |
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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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JUDGES:
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SPENDER, MOORE & FOSTER JJ
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DATE OF ORDER:
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11 SEPTEMBER 2009
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WHERE MADE:
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SYDNEY
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CORRIGENDUM
1. On the Orders page, delete the words 'ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA' and replace them with 'ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA'.
2. On the Reasons for Judgment page, delete the words 'ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA' and replace them with 'ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA'.
3. In the certification clause on page 16, delete 'I certify that the
preceding fifty-six (56) numbered paragraphs are a true copy
of the Reasons for
Judgment herein of Justices Spender, Moore & Foster' and replace it with 'I
certify that the preceding fifty-six
(56) numbered paragraphs are a true copy of
the Reasons for Judgment herein of the Honourable Justices Spender, Moore &
Foster'.
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I certify that the preceding three (3) numbered paragraphs are a true copy
of the Corrigendum to the Reasons for Judgment herein of
the Honourable Justices
Spender, Moore and Foster.
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Associate:
Dated: 15 September 2009
FEDERAL COURT OF AUSTRALIA
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123
MIGRATION – cancellation of
Transitional Special Category Visa on character grounds under s 501 of the
Migration Act 1958 (Cth) – whether jurisdictional
error.
Held – appeal dismissed
Migration Act 1958 (Cth) s
501
NADH of 2001 v Minister for Immigration
and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264
SZBEL v
Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228
CLR 152
MITA
TAUPOPOKI GEORGE APORO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and
ANOR
NSD 179 of 2009
SPENDER, MOORE & FOSTER
JJ
11 SEPTEMBER 2009
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA
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GENERAL DIVISION
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AND:
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THE COURT ORDERS THAT:
2. The appellant pay the first respondent's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
The text of entered orders can be located using eSearch on the
Court’s website.
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NEW SOUTH WALES DISTRICT REGISTRY
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GENERAL DIVISION
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NSD 179 of 2009
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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MITA TAUPOPOKI GEORGE APORO
Appellant |
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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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JUDGES:
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SPENDER, MOORE & FOSTER JJ
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DATE:
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11 SEPTEMBER 2009
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
THE COURT:
1 This is an appeal from a judgment of a judge of this Court of 12 February 2009 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal of 18 July 2008: Aporo v Minister for Immigration and Citizenship [2009] FCA 79. The Tribunal had affirmed a decision of a delegate of the Minister to cancel the appellant’s Transitional Special Category Visa (subclass TY 444) (the visa) on character grounds under s 501 of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
2 The appellant was born in New Zealand in 1973 and moved to Australia in 1989 to live permanently with his mother. On 1 September 1994 the appellant became the holder of the visa.
3 Since arriving in Australia, the appellant has been found guilty of multiple offences. On 15 March 1999 in the District Court of NSW the appellant was convicted (on a plea of guilty) of two counts of assault, one count of assaulting a police officer in the execution of duty and one count of intimidating a witness. The sentencing judge, English DCJ, had regard to a statement of facts, the content of which was not disputed by the appellant at the District Court hearing. On appeal, the appellant was sentenced to two years imprisonment with a non-parole period of one year and six months.
4 On 11 March 2005, at Manly Local Court, the appellant was convicted of two counts of assault occasioning actual bodily harm and one count of common assault. He was sentenced to 12 months imprisonment with a nine month non-parole period. On 12 March 2007, at Central Local Court, the appellant was convicted of seven counts of shoplifting and sentenced to 12 months imprisonment with a nine month non-parole period. The appellant was released from Silverwater Correctional Centre on 19 March 2007.
5 On 28 March 2007 the appellant was notified that the Minister was considering cancelling the visa on the basis that he failed the character test. On 10 May 2007 the appellant was again notified in writing about the Minister’s intention to cancel the visa. Relevantly for the purposes of this appeal, the appellant was notified of the information upon which the Minister intended to rely in making his decision, was given an opportunity to comment on this information, and was told to ensure that his response addressed each and every topic that he felt was relevant to his circumstances. The information attached to the letter included the appellant’s Australian Federal Police Criminal History dated 16 March 2007, his record of convictions, sentences and appeals, a report from his parole officer, Mr Murdoch, a pre-sentence report, and English DCJ’s sentencing remarks in the District Court.
6 It is apparent from documents dated 22 May 2007 and 31 May 2007 that Ms Hunt from the Department of Immigration and Citizenship (the Department) spoke to the appellant, who confirmed receipt of the 28 March 2007 letter and said that he was in the process of completing the personal details form and submitting a response. He said that he had not submitted it because he is dyslexic and had to wait for his mother to return from overseas to help him read, understand and complete the form. Ms Hunt spoke to Mr Murdoch who also said that the appellant was dyslexic and may have difficulties completing the form.
7 On 31 May 2007, Ms Hunt advised the appellant that instead of him completing the form, she could conduct a phone interview where she could ask him the questions on the form, record his responses and then forward him a copy of the completed form to confirm or deny the answers and information. She also advised him that he had the opportunity to provide any additional information. The interview was conducted on 1 June 2007 over one hour and 15 minutes. Ms Hunt then completed the personal details form using the information which she had obtained from the appellant in the telephone interview. She then forwarded that form under cover of a letter to the appellant dated 1 June 2007. That letter also gave the appellant the opportunity to provide any additional information to be taken into consideration by the Minister when deciding whether or not to cancel his visa.
8 On 26 July 2007 the appellant was notified of the Minister’s delegate’s decision to cancel the appellant’s visa, on character grounds, in exercise of the power conferred by s 501(2) of the Act, which provides:
The Minister may cancel a visa that has been granted to a person if:(a) the Minister reasonably suspects that the person does not pass the character test; and(b) the person does not satisfy the Minister that the person passes the character test.
9 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)) ... .10 Section 501(7) provides:
For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or(c) the person has been sentenced to a term of imprisonment of 12 months or more; or(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
(emphasis added)
11 The appellant applied for a review of the delegate’s decision, and the Tribunal affirmed the decision. The appellant sought judicial review in the Federal Court which made orders in the nature of certiorari and mandamus quashing the Tribunal’s decision and remitting the matter to the Tribunal to be heard and determined according to law: Aporo v Minister for Immigration and Citizenship [2008] FCA 102 per Rares J.
12 The hearing by the Tribunal on remittal took place on 1 July 2008. The appellant was represented by counsel before the Tribunal at that hearing.
THE TRIBUNAL DECISION
13 The appellant accepted before the Tribunal that he did not pass the character test on the basis that he had a substantial criminal record as defined by s 501(7) of the Act. The question before the Tribunal was how it should exercise its discretionary power to cancel the appellant’s visa taking into account the three primary considerations, and a number of other considerations, set out in Part 2 of Ministerial Direction 21. The three primary considerations to be taken into account are:
(i) The protection of the Australian community, and members of the community (first primary consideration);
(ii) The expectations of the Australian community (second primary consideration);
(iii) 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 (third primary consideration).
14 In relation to the first primary consideration, the Tribunal considered the nature and seriousness of the criminal conduct engaged in by the appellant, as well as certain mitigating factors. The Tribunal found that the appellant’s history of convictions revealed "a pattern of continual offences, some violent, some drug related, some property and numerous traffic offences", and demonstrated a "disregard for law generally of an almost habitual nature" (at [98]). The Tribunal concluded that the appellant’s criminal record was "very serious" (at [103]).
15 The Tribunal proceeded to consider the risk of recidivism. The Tribunal noted that the appellant stressed that since being detained in Villawood, he had ceased using drugs and their prescribed substitutes, had completed an anger management course, and had not had any convictions for violence since 2003 (at [106]). This last assertion was incorrect – the appellant had been convicted in 2005 of three offences which involved violence.
16 The Tribunal considered a report by a Dr Banks, in which the view was expressed that, if the appellant received treatment for substance abuse and anger management, the risk of recidivism would be reduced, and that the appellant had himself appeared to recognise the need for change, but that proper treatment had begun only recently. However, the Tribunal noted that the appellant had come to similar realisations before (when he was 16 and 23) and had continued to re-offend. He had said in the telephone interview on 1 June 2007 that he felt that if he returned to New Zealand, he would probably get into trouble with the law. The Tribunal found that this was not an observation that one would expect to hear from someone who was rehabilitated (at [113]). The Tribunal’s reliance on this statement made in the telephone interview by the appellant assumes some importance in this appeal.
17 The Tribunal also took into account two pre-sentence reports prepared in May 2002 and March 2006, and a report prepared by the Department dated 29 May 2007. In relation to the Department's report, the Tribunal noted that the appellant was regarded as having a high risk of re-offending in an assessment in May 2007 by a parole officer. The Tribunal noted that the appellant disputed Mr Murdoch’s assessment that he presented a high-risk of re-offending, citing in support a Villawood assessment in which he was classified as moderate to high risk. While the Tribunal took into account the submissions of the appellant, it was of the view that his past record demonstrated that the risk of recidivism still appeared to be "moderate to high" (at [116]).
18 In relation to the second primary consideration, the Tribunal found that, over a 17 year criminal history, the appellant had had numerous chances to rehabilitate but had repeatedly offended (at [128]). It considered that the community would expect that the Minister would cancel the visa of a person with such a serious criminal record, who has been assessed as a moderate to high risk of re-offending and who had shown little sustained evidence of rehabilitation.
19 In relation to the third primary consideration, the Tribunal concluded that the appellant does not have a close relationship with his daughter, noting that he had not met his daughter since she was a baby, had had no telephone contact with her and had played no part in her upbringing (at [139]). Further, the Tribunal found that the appellant’s relationship with his nieces and nephew may not have been as close as he claimed, and that moves by uncles, aunts and grandparents are a common childhood experience which are not normally regarded as traumatic (at [144]-[146]).
20 The Tribunal also considered other factors, such as the claim that his relations with his mother and brother would be impaired if his visa were cancelled, his claim to be in a relationship of 5 years with a woman who lives in Melbourne, the fact that there was some evidence of rehabilitation and the fact that he would not face any language or cultural barriers if he returned to New Zealand. The Tribunal rejected the notion that New Zealand did not offer any rehabilitation or employment opportunities. The Tribunal also noted that the appellant’s family ties had already been disrupted by his incarceration, and found that ‘[u]nusally, in this instance, the best interests of the children are a neutral factor’ (at [167]).
21 The Tribunal therefore formed the view that its discretion should be exercised in favour of cancelling the appellant’s visa and affirmed the decision of the delegate.
THE APPLICATION IN THE COURT BELOW
22 At first instance, the appellant claimed before the primary judge that:
Particulars1. The decision of [the Tribunal] made on 18 July 2008 was vitiated by actual or apprehended bias.
The Tribunal’s conclusions in paragraphs [enumerated] were in substantial respects unreasoned and mere assertion lacking rational or reasoned foundation and selective of material going one way.
Particulars2. The decision of the Tribunal was vitiated by the Tribunal’s failure to accord the applicant procedural fairness.
(a) The Tribunal’s conclusions in paragraphs [enumerated] were not natural and obvious conclusions and the applicant was not afforded an opportunity to respond to those conclusions.(b) The Tribunal’s conclusions in paragraphs [enumerated] were arbitrary and based on speculation.
(c) The Tribunal’s conclusions in paragraphs [enumerated] were based on the Tribunal’s observations, expertise or experience and the applicant was not given an opportunity of commenting on those matters.
3. The decision of the Tribunal was vitiated by the failure of the Minister’s delegate and Tribunal to inquire as to the:
(c) basis for the opinion expressed in the opinion evidence, in circumstances where it was unreasonable for it to either: (i) ignore readily available material as to those matters; or(a) provenance of the documents relied upon by the Minister and his delegate; or(b) training, study, experience and methodology upon which opinion evidence relied upon by the Minister and his delegate was based; or
(ii) not make a straightforward administrative inquiry as to those matters.
23 As to ground 1, the primary judge found that no challenge was made to the provenance of the material before the Tribunal and in the absence of such a challenge the Tribunal was entitled to accept the material. Further, there was no duty of the Tribunal to inquire into its provenance. Nor did the treatment of the report of Dr Banks suggest that the Tribunal approached questions concerning the appellant’s character with a closed mind. The Tribunal instead evaluated its relevance to the question of recidivism alongside other medical reports. Her Honour found that the Tribunal’s conclusions were not unreasoned, lacking rational or reasonable foundation or selective of material going one way (at [68]-[69]).
24 As to ground 2, her Honour found (at [76]) that the Tribunal was not obliged to make the appellant’s case for him nor was it required to give him a running commentary on his evidence or to put its reasoning processes to him for comment. The appellant was represented by counsel before the Tribunal, thereby removing any issue as to whether he had had a fair hearing having regard to his lack of education and his dyslexia. Counsel addressed the Tribunal as to the matters to be taken into account in its decision. The Tribunal took those matters into account. The provenance of the documents before the delegate and the Tribunal was not in issue. There was no objection to the admissibility of the evidence relied on by the Tribunal. The Tribunal was entitled to base its conclusions on the evidence before it and was entitled to prefer the evidence of one witness over another. A number of matters on which the Tribunal commented in its reasons were not determinative, individually or collectively, of the Tribunal’s decision.
25 As to ground 3, her Honour was satisfied that the appellant’s counsel in the hearing before the Tribunal had been properly instructed and had had an opportunity to flag the need for further inquiries into the provenance of psychological and sentencing reports, but had not done so. Her Honour distinguished the present case from that in SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592, where the failure in the Tribunal’s process was merely "to take a simple administrative step of an office or housekeeping nature". Her Honour also placed importance on the fact that there was no challenge to the facts contained in those documents. Her Honour accordingly held that no duty to make further inquiries arose in these circumstances.
26 Finally, the primary judge considered a complaint by the appellant regarding the "unfairness" in the way that the telephone interview had been conducted by the delegate.
27 Her Honour found that it was not apparent that the Tribunal formed a view that the interview of the appellant by the delegate was unfair, nor that she was required to warn the appellant of the consequences of the interview. Nor was it put to the Tribunal that this was somehow determinative of the appellant’s application to the Tribunal. It followed that it could not have been procedurally unfair on the part of the Tribunal not to have thought of an argument on the appellant’s behalf, put it to him as a possibility and then come to a conclusion on that matter in his favour.
28 Her Honour concluded no jurisdictional error attended the decision of the Tribunal and dismissed the application.
THE APPEAL
29 In an amended notice of appeal, the appellant alleged (particulars omitted) that:
1. The Court erred by finding that:a. A departmental delegate was entitled to assume that the Appellant was aware that his responses to her questions may be used by the delegate and or Tribunal as the basis of their decisions to cancel his visa and deport him, notwithstanding that the only notification of the above was by reference to a written notice which the Appellant had not been able to complete due to his illiteracy and dyslexia, a fact known to the delegate.
b. Any deficiencies in the conduct of the delegate were rectified by the Tribunal, notwithstanding that the delegate had no power to question the Appellant and acted in excess of the jurisdiction conferred by the Migration Act 1953.
2. The Court erred in finding that the Tribunal was entitled to accept the accuracy and provenance of documents before it, notwithstanding the patent unreliability or unverified nature of those documents and the fact that the Tribunal did not consider the rules of evidence when it was obliged to do so.
3. The Court erred in finding that the Tribunal's findings were not, in substantial respects unreasoned and mere assertion lacking rational or reasoned foundation and selective of material going one way and thereby firmly established a reasonable apprehension of bias.
4. The Court erred in finding that the Tribunal had no duty to inquire as to the likelihood of recidivism and as to the provenance of documents before it.
5. The Court erred in finding that the Tribunal was not obliged to put the following appraisals to the Appellant for his comment during the course of the hearing.
6. The Court erred in finding that the Appellant was given the opportunity to address the Tribunal's appraisals of documents, notwithstanding that the Tribunal misconstrued the documents in its findings, did not put its misconstrued appraisal of documents to the Appellant and the Appellant was known to be dyslexic and illiterate and therefore at a disadvantage in making submissions on those documents.
Ground 1
30 The appellant’s first ground centres on what was said to be the procedurally unfair manner in which the telephone interview with the appellant was conducted by the Departmental Officer, Ms Hunt, on 1 June 2007. It was not made clear whether Ms Hunt was the Ministerial delegate who made the initial decision under s 501 to cancel the appellant’s visa in July 2007. In our view, it does not matter whether she was the decision-maker who made that decision or was otherwise involved in making that decision. However we will adopt the approach of the appellant’s counsel by treating the interviewer, Ms Hunt, as the delegate. The appellant argued that the Minister was obliged to adopt fair procedures that were appropriate to the circumstances of the case: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 585 per Mason J; Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 695-6 per Deane J (Evatt J concurring) (Pochi).
31 The appellant contended that, in circumstances where it was known by the Minister’s delegate that the appellant suffered from dyslexia and had trouble completing the forms sent to him by the delegate, the appellant should have been put on notice as to the reasons for the questions and that his answers could later be used against him. Further, given that there is an affinity between the cancellation of the appellant’s visa and punishment of a criminal offence, the telephone interview should not have proceeded without there being some explanation of the purpose and possible consequences of the interview, and an oral caution in terms similar to those applied to a criminal investigation of a suspect.
32 The appellant submitted that the primary judge was in error in finding that the delegate was entitled to assume that the appellant was aware, from the correspondence, of the reason for the telephone interview. The appellant was unable to refer to any authority to suggest that in the context of administrative decision-making a decision-maker is required to, in effect, give a person a warning before asking that person questions which may elicit material which may in turn inform the decision-making process.
33 As to ground 1(b), the appellant contended that the primary judge was in error in finding that any unfairness in the processes leading to the delegate’s initial decision was rectified by the review by the Tribunal, as the procedural unfairness in the interview manifested itself in the Tribunal’s reasons. The appellant sought to distinguish the case from the decision in Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35; (2006) 149 FCR 558 (Humayun). The appellant also contended that the delegate had no power under the Act to interview the appellant.
34 The Minister submitted that there was no error in the primary judge finding that the telephone interview was conducted in circumstances which were entirely ‘appropriate and adapted to the circumstances of the case’: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 585 per Mason J. Secondly, as the primary judge pointed out, no complaint was made by the appellant about the telephone interview, or the accuracy of the information taken by the delegate, in the proceedings before the Tribunal. Thirdly, even if there were ‘unfairness’ in the conduct of the interview, then by the time the matter was reviewed by the Tribunal, the answers given by the appellant simply became part of the material (and therefore an ‘issue’) in the review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 165 (SZBEL). The Minister further submitted that, in any event, it is well settled that the conduct of the delegate is rectified by a full merits review before the Tribunal: Humayun.
35 In our opinion, ground 1 is not made out. Firstly, for the appellant to succeed before this Court, he must be able to establish that the primary judge in some way erred in failing to find jurisdictional error in the Tribunal’s decision, per s 476A of the Act: Cockrell v Minister for Immigration and Citizenship [2008] FCAFC 160; (2008) 171 FCR 345. At its highest, ground 1 involves a contention that the Tribunal fell into jurisdictional error by taking into account material which was collected using a process that was procedurally unfair to the appellant.
36 In order to assess whether such conduct (concerning the interview process) could be said to have ‘infected’ the Tribunal’s decision resulting in jurisdictional error, it is necessary to focus on the Tribunal proceedings as a whole. There is no evidence which suggests that before the Tribunal the appellant complained about the conduct of the interview or the accuracy of the information taken by the delegate. However the appellant submitted in this appeal that the delegate should have warned the appellant at the commencement of the telephone interview that any answers he may give may be used to found an unfavourable decision, as ultimately happened in relation to one answer he gave. The procedure adopted by the delegate in conducting the telephone interview was discussed with the appellant on 31 May 2007. It is clear from a file note of the delegate made that day (which was in the material before the Tribunal) that the delegate explained to the appellant what the purpose of his telephone interview was (to provide information that the appellant was having difficulty providing himself without assistance because of his disabilities) and sought and obtained the appellant’s agreement to the interview (which took place the following day). There was nothing unfair about this process. The submission that the delegate had no power to conduct the interview is baseless. A power to cancel a visa on grounds relating to the circumstances of the visa holder carries, by implication, a power to elicit relevant information from the visa holder: see Attorney-General v Directors of the Great Eastern Railway Co (1880) 5 App Cas 473.
37 The appellant sought to draw support from cases in the field of criminal law which concern the exercise of the judicial discretion to exclude as evidence, confessions obtained unfairly. An aspect of the unfairness may be a failure of a police officer to give a caution before interviewing an accused.
38 In our judgment, it is not possible, let alone appropriate, to translate what might be unfair in a criminal investigation to what might be unfair in the context of administrative decision-making under the Act.
39 Even accepting, for the moment, that these cases have any relevance, the failure to administer a caution does not necessarily require the exercise of the discretion to exclude evidence of what was said: R v Swaffield (1998) 192 CLR 159 at [95]. Each case turns on its own facts. An example of a case where no caution was given but that was said to be of no consequence is The King v Lee [1950] HCA 25; (1950) 82 CLR 133 at 151 and 155. In the present case no complaint was made to the Tribunal on behalf of the appellant about using or relying upon the content of the telephone interview.
Ground 2
40 The appellant submitted that a significant number of the Tribunal’s key findings of fact that founded its decision were not proved and resulted in a harsh assessment of unduly limited facts. The appellant submitted that the key deficiencies were threefold. First, the document titled "New South Wales Police Force Criminal History – Bail Report" for the appellant contained numerous inaccuracies, such as the recording of the names and dates of birth. The appellant submitted that the primary judge erred in finding that the Tribunal was entitled to accept the accuracy of that document, as it was incumbent upon the Tribunal to take the simple administrative step of inquiring as to the provenance of the document and the failure to take this step vitiated the Tribunal’s decision. The appellant further submitted that the primary judge erred in finding that the Tribunal was entitled to accept the accuracy of that document because no challenge or objection was made to its contents. It was submitted there was an insufficient evidentiary basis for the finding of accuracy, as the transcript supplied by the Tribunal was incomplete and omitted the closing submissions made by the appellant. Further, even if that document was not challenged, its unreliability was obvious on its face.
41 Secondly, it was submitted that the Tribunal clearly misconstrued the statement of facts tendered by the prosecution before English DCJ as findings of fact made by her Honour. The appellant submitted that the primary judge erred in finding that the Tribunal was not obliged to go behind the statement of facts to satisfy itself that the facts were correct: Pochi.
42 Thirdly, it was said that the Tribunal’s findings were perverse in that no weight was afforded to the specialised knowledge of Dr Banks; an estimate of the likelihood of recidivism was not something of which the Tribunal was obliged to be satisfied; and the Tribunal should have taken the simple step to seek additional information from Dr Banks.
43 In oral submissions, the appellant contended that, notwithstanding that the appellant conceded that he had a serious criminal record, he had not conceded that he had committed every one of the offences contained in the report, which then was relevant to the exercise of discretion under Ministerial Direction 21.
44 The Minister submitted that the material before the Tribunal (and apparently accepted by the appellant in the Tribunal proceedings) suggested that the appellant went by a number of aliases and/or dates of birth. To this end, in the absence of a complaint about the material, the material was not ‘patently unreliable’. The Minister further submitted that there was no conflict in the material regarding the issue of recidivism, and there was no duty in these circumstances for the Tribunal to make further inquiries with Dr Banks: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32 per Gummow J at [43].
45 The choice of, and weight given to, the material before a Tribunal is a matter for it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 per French J at [27]. Further, while it can generally be said that there is no onus of proof in administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), it is for an applicant to provide their evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts: Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61. The decision maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. Whatever criticism might be made of the details of the appellant’s criminal history, it was common ground that his criminal history enlivened the Minister’s discretion to cancel.
46 As noted above, the appellant was notified by letter on 28 March 2007 that the Minister was considering cancelling the visa because he failed the character test. On 10 May 2007 the appellant was again notified in writing about the Minister’s intention to cancel the visa. On both occasions the information upon which the Minister intended to rely in making his decision was given to the appellant, as was an opportunity to comment on this information, and the appellant was told to ensure that his response addressed each and every topic that he felt was relevant to his circumstances (pursuant to s 501G of the Act).
47 Moreover, the appellant took no issue with any of this material before the Tribunal. The substance of those documents, for instance the details about the appellant’s criminal convictions, was expressly put to the appellant at the hearing.
48 In our opinion, the appellant was not denied the opportunity to refute the allegations contained in those documents or to give whatever explanation he could about the information contained therein: cf Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65. The documents before the Tribunal could not be characterised as containing mere suspicion or speculation, but were undoubtedly ‘rationally probative evidence’ upon which it could base its conclusions: see Pochi per Deane J.
Grounds 3 and 4
49 The appellant referred to a range of factual findings made by the Tribunal which it is claimed were ‘perverse’, in the sense of being mere assertion, lacking rational foundation and using selective material going one way: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [115] (NADH of 2001).
50 The Minister submitted that the Tribunal’s decision was careful and comprehensive, acknowledged the appellant’s submissions and addressed his arguments, and was made with an entirely open mind.
51 In our view, grounds 3 and 4 cannot be made out having regard to the material before the Court. As the primary judge found (at [79]) the Tribunal’s conclusions were based upon the evidence to which it referred in its reasons and were responsive to the submissions made. Further, as discussed earlier, there was no error in the primary judge finding that the Tribunal had no duty to inquire further as to the likelihood of recidivism and as to the provenance of documents before it. The findings of the Tribunal can therefore not be described as "unreasoned...mere assertion lacking rational or reasoned foundation....plainly and ex facie wrong... [or] selective of material going one way", in the sense described by the Full Court in NADH of 2001 at [115].
Grounds 5 and 6
52 The appellant submitted that there were several matters adverse to the appellant that were determinative of his application which were not put to him during the course of the hearing. The appellant submitted that to expect a dyslexic and illiterate person to second guess the Tribunal’s hypothetical appraisals of documents in anticipation of the Tribunal hearing was ‘patently unfair’.
53 The Minister submitted that the appellant was well aware of the issues which were critical to the determination of his application before the Tribunal, namely the three primary considerations, and other considerations, provided under Ministerial Direction 21: SZBEL. The Minister adopted the findings of the primary judge at [75]-[78] of her Honour’s reasons.
54 We accept the submissions of the Minister. No error can be found in the reasoning of the primary judge in this regard. In particular, her Honour correctly found at [77]-[78] that:
77. Mr Aporo had a reasonable opportunity to ascertain and respond to the determinative issues that arose (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590-591). Indeed, the Tribunal makes it clear that it addressed the evidence put forward by Mr Aporo in relation to each of the issues. The Tribunal’s findings of which he complains were findings upon matters advanced by Mr Aporo to the Tribunal. The Tribunal did not make findings of fact as to which there was no evidence advanced by Mr Aporo or no submissions made. It follows that Mr Aporo was given the opportunity to address the issues. 78. Mr Aporo complains about the inferences and conclusions drawn from his evidence. This does not amount to a denial of procedural fairness. Mr Aporo does not point to material that had been supplied by or known to the Tribunal from which a conclusion was drawn that was not open on that material, even if he did not like the conclusion reached (Alphaone at 591-2). Mr Aporo’s reliance again on the ‘distinct forensic disadvantage due to his illiteracy and dyslexia’ is answered by the fact of legal representation. The Tribunal was entitled to assume that counsel was properly instructed and, indeed, it is not suggested that this was not the case.55 For these reasons, grounds 5 and 6 are not made out.
CONCLUSION
56 The appeal should be dismissed with costs.
Associate:
Dated: 11
September 2009
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Counsel for the First Respondent:
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Ms L Clegg
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Solicitor for the First Respondent:
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Clayton Utz
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/123.html