Tucker v Minister for Immigration and Citizenship [2011] FCAFC 16 (15 February 2011)

Last Updated: 17 February 2011

FEDERAL COURT OF AUSTRALIA

Tucker v Minister for Immigration and Citizenship [2011] FCAFC 16

Citation:		Tucker v Minister for Immigration and Citizenship [2011] FCAFC 16
Appeal from:		Tucker and Minister for Immigration and Citizenship [2010] AATA 559
Parties:		CLIFFORD TUCKER v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL
File number:		NSD 1106 of 2010
Judges:		MOORE, JACOBSON & NICHOLAS JJ
Date of judgment:		15 February 2011
Catchwords:		ADMINISTRATIVE LAW – judicial review – Administrative Appeals Tribunal affirmed a decision of the delegate to cancel the applicant’s visa on character grounds – consideration of the best interests of the applicant’s children – whether the Tribunal erred in making an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 denying the applicant access to a confidential report of a child and family consultant received into evidence – whether the Tribunal failed to afford the applicant procedural fairness or failed to take relevant matters into account – no jurisdictional error established – application dismissed
Legislation:		Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 39 Federal Court of Australia Act 1976 (Cth) s 20(2) Migration Act 1958 (Cth) s 501
Cases cited:		Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 cited Barbaro v Minister for Immigration and Ethnic Affairs [1982] FCA 141; (1982) 65 FLR 127 cited Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 applied
Date of hearing:	20 October 2010
Date of last submissions:	20 October 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	60
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1106 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CLIFFORD TUCKER Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	MOORE, JACOBSON & NICHOLAS JJ
DATE OF ORDER:	15 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.
2. The applicant is to 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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1106 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CLIFFORD TUCKER Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	MOORE, JACOBSON & NICHOLAS JJ
DATE:	15 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming the decision of a delegate of the first respondent to cancel the applicant’s visa under s 501 of the Migration Act 1958 (Cth) (the Migration Act). The application was heard by a Full Court in accordance with s 20(2) of the Federal Court of Australia Act 1976 (Cth).
2. The applicant is 46 years of age. He is a citizen of the United Kingdom who came to Australia with his parents when he was six years of age. Apart from a short overseas holiday in 2008, he has been in Australia ever since. The applicant has three children all of whom live in Australia with the applicant’s former partner.
3. The applicant has an extensive criminal record. He has been convicted of numerous offences some of which have involved serious acts of violence in relation to which he has spent many years in prison. All three of the applicant’s children were born when he was in prison.
4. The applicant’s visa (a Class BB Subclass 155 Resident Return Visa) was granted on 28 November 2008 shortly prior to him travelling on an overseas holiday which he undertook using a British passport.
5. On 2 September 2009 the applicant was convicted of aggravated assault with an offensive weapon and he was sentenced to four months imprisonment suspended on condition that he enter into a good behaviour bond for a period of two years.
6. On 19 November 2009 he was advised in writing that consideration was being given to the cancellation of that visa in accordance with s 501 of the Migration Act. On 27 April 2010 a delegate of the first respondent decided to cancel the applicant’s visa under s 501(2) of the Migration Act. That decision was affirmed by the Tribunal on 26 July 2010.
7. During the proceeding before the Tribunal the applicant was represented by a lawyer. Before this Court he represented himself. The grounds of the application set out in the application filed by him appear to have been prepared by him without the assistance of a lawyer.

THE DIRECTION

8. The Tribunal found that the applicant had a “substantial criminal” record as defined by s 501(7) and that it followed that he did not pass the character test set out in s 501(6). It noted that the decision to cancel a person’s visa pursuant to s 501 involves the exercise of a discretion and that, in accordance with s 499, the Minister may give written directions to a person or body having functions or powers under the Migration Act about the performance of those functions or the exercise of those powers.
9. On 3 June 2009 the Minister issued “Direction [No. 41] – Visa refusal and cancellation under s 501” (Direction). The Tribunal noted that the Direction commenced on 15 June 2009 and that it applied to both the delegate’s and the Tribunal’s consideration of the question whether the applicant’s visa should be cancelled.
10. Part B of the Direction concerns the exercise of the discretion under s 501. In deciding how to exercise that discretion the Direction provides that what it refers to as the “primary considerations” must be taken into account in every case. It further provides that what it refers to as “other considerations” should also be taken into account where relevant.
11. Relevantly, para 10 of the Direction specifies the following primary considerations:
    10. The primary considerations

(1) In deciding whether to refuse to grant a person a visa or cancel a person's visa, the following (the primary considerations) are to be considered:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) ...

12. Paragraphs 10.1, 10.1.1 and 10.1.2 identify more specific factors relevant to the protection of the Australian community. These include the seriousness and nature of the relevant conduct and the risk that the relevant conduct may be repeated. Paragraph 10.1.1 states that crimes of violence are of special concern to the welfare and safety of the Australian community. It includes a list of examples of various offences and conduct that are considered serious which relevantly include attempted murder and assault.
13. Paragraph 10.1.2 is concerned with assessing the risk of re-offending. It states:

(1) The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2) The following factors are to be considered as particularly relevant to this assessment:
(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.

14. Paragraphs 10.4 and 10.4.1 identify more specific factors relevant to a consideration of the best interests of the child. Relevantly, these paragraphs provide:

10.4 International obligations
(1) Reflecting Australia's obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child.
(2) ...
10.4.1 The best interest of the child
(1) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.
(2) The best interests of any child who is 18 years or older is not a primary consideration but may be considered with other considerations under paragraph 11 of this Direction.
(3) If there are two or more relevant children, it is not to be assumed that the interests of each child will coincide. It may be that the best interests of one child may indicate that the person should not be refused a visa or have their visa cancelled and be removed from Australia, whereas the best interests of another child may not be adversely affected by visa refusal or cancellation and removal. The best interests of each child should therefore be given dividual consideration.
(4) Under Australian law, it is generally presumed that a child's best interests will be served if the child remains with its parents. Factors, which may indicate that the child's best interests are served by separation from the person include, but are not limited to:
(a) any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct.
(5) In considering the best interests of the child, the following factors are to be considered:
(a) the nature of the relationship between the child and the person, for example, a relationship that has parental rights or regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with a child;
(b) the duration of the relationship, including the number and length of any separations and reason/s for the separation;
(c) the extent to which the person is likely to play a full parental role up to the child's eighteenth birthday;
(d) the child's age;
(e) whether the child is an Australian citizen, permanent resident or New Zealand citizen;
(f) the likely effect that any separation from the person would have on the child;
(g) the existence of other persons who already fulfil a parental role in relation to the child;
(h) the impact of the person's prior conduct and whether that conduct has, or has had, a negative or positive impact on the child;
(i) the time that the child has spent in Australia;
(j) any Court orders relating to parental access and care arrangements;
(k) any known wishes expressed by the child;
(l) whether the child is likely to accompany the person overseas in the event the person is removed from Australia;
(m) the circumstances of the probable country of future residence, including the educational facilities and the standard of the health support system (if any) of the country should the person not be permitted to enter or remain in Australia but taking into account that a higher standard of health, educational or other services in Australia does not of itself mean that a non-citizen child should not be removed to another country;
(n) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(o) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children generally adapt to new circumstances.

THE TRIBUNAL’S REASONS

15. The Tribunal gave detailed reasons as to why it considered that the decision to cancel the applicant’s visa should be affirmed. It described the applicant’s history of violence, his use of alcohol, and his aggressive and violent behaviour. It did so by reference to the applicant’s criminal record, prison record and sentencing remarks made in 1998 when the applicant was sentenced to imprisonment for assault involving the use of a replica pistol. The Tribunal also referred to the applicant’s relationship with his ex-partner and his children including evidence of threats made by the applicant toward both his ex-partner and his children.
16. In considering the issue of the protection of the Australian community in accordance with para 10(1)(a) and para 10.1, 10.1.1 and 10.1.2, the Tribunal stated at para [40] its reasons:

Obviously enough, the picture presented by the matters to which we have referred is a mixed one. Making a judgment in the present case based only on Mr Tucker’s apparent efforts to moderate his behaviour, and his assurances that he would abstain altogether from alcohol and drugs, would give insufficient recognition to the complexity of his behaviour. Assessment of that matter requires expert assistance.

17. The Tribunal then turned to the evidence of Professor David Greenberg, a forensic psychiatrist who saw the applicant for the purpose of providing an expert report. Professor Greenberg, who the Tribunal considered an impressive witness, diagnosed the applicant as having “severe antisocial personality disorder with likely borderline features”. He also expressed the opinion, which was accepted by the Tribunal, that there was a high risk of the applicant re-offending. The Tribunal went on to conclude on the basis of this evidence that “the risk of harm to the community if [the applicant] remains in Australia is a significant one and that this is a factor that tells strongly against allowing him to retain his visa” (at para [50]).
18. The Tribunal next considered the matter of the applicant’s residency in Australia noting that he came to Australia at a young age and he has been a resident for a long period of time but that his time in Australia had been punctuated by acts of violence and other criminal behaviour. The Tribunal stated that it would give the matter of the applicant’s residency moderate weight but that the nature and unpredictability of the risk of harm posed by the applicant meant that this consideration did not provide much assistance to him.
19. The Tribunal turned to consider the best interests of the applicant’s children. It referred to a report prepared by Mr Ric Trevaskis which was provided to the Federal Magistrates Court in July 2008. Mr Trevaskis gave evidence before the Tribunal and was cross-examined by the applicant’s lawyer in relation to his report. The report noted that, amongst other things, “[a]ll three children expressed some level of fear of their father, resulting from experiencing him as aggressive” and that “[a]ll three children expressed clear reluctance to see their father, particularly on a regular basis.”
20. The Tribunal then referred to the report of Dr Asquith and oral evidence given by her before the Tribunal. After quoting various conclusions appearing in her report, the Tribunal stated that it accepted Dr Asquith’s expert opinion. Her opinion was that it was in the best interests of the applicant’s children that he be removed from Australia to the United Kingdom.
21. In accordance with orders made by the Tribunal which we shall refer to later in these reasons, the applicant’s lawyer was granted access to Dr Asquith’s report though the applicant was not. However, the Tribunal did reproduce in its reasons for decision four passages in Dr Asquith’s report which we also reproduce:

In summary, this assessment is of the view that each of these children has experienced neglect, and physical, emotional and psychological abuse from their father. The children would seem to be very likely to face further unacceptable risks to their emotional, psychological, physical, social, relational and developmental wellbeing through ongoing association with their father.
In summary, the nature of the relationship between the children and their father appeared to be distinguished by his very poor psychological relationship with them, and their very poor psychological relationship with him.
In this matter, it appears that separation is likely to advantage the children from ongoing abuse and further unacceptable risks to their wellbeing.
In summary, based upon the documentation provided and the information gathered from each of the children, it is the writer’s professional opinion that the cancellation of the Applicant’s visa and his consequent removal from Australia to the United Kingdom would be in the best interests of each of the children in this matter.

22. It should be noted that the applicant was made aware prior to the Tribunal hearing that the respondent contended that it was in the best interests of each of the applicant’s children that the applicant’s visa be cancelled. It had previously filed a Statement of Issues, Facts and Contentions which said so in terms and which referred to the report previously provided by Mr Trevaskis in which he referred to reports of physical and mental abuse of at least one of the children and expressed reluctance on the part of each of them to see their father, particularly on a regular basis.
23. It will be necessary to refer to Dr Asquith’s evidence in greater detail later in these reasons in connection with the applicant’s complaint that he was not given the opportunity to present evidence in response to it.

THE GROUNDS OF THE APPLICATION

24. There are seven grounds set out in the application. They are:
    1. The applicant was not able to present evidence from two psychiatrists who he had been seeing before being detained and who said that his condition could be treated.
    2. The applicant did not have the opportunity to present evidence in response to the evidence of Dr Asquith.
    3. The Tribunal did not properly consider the evidence before it when it found that on Dr Asquith’s evidence the best interests of the children favour cancellation of the applicant’s visa.
    4. The Tribunal did not properly weigh all factors as required by Ministerial Direction 41 including: the evidence before it of the applicant’s other medical conditions including depression.
    5. The Tribunal did not take account of self rehabilitation over the last 9 years and that two offences occurred only due to relapse, abusing alcohol due to death of father which issues the applicant was actively addressing.
    6. The Tribunal did not properly take into account the psychological and traumatic effects on the applicant’s sister and mother in making its decision, the applicant’s sister and mother are both Australian citizens.
    7. The Tribunal did not properly take into account the total devastation, psychological and traumatic affects the applicant’s deportation would have on the applicant knowing of his already depressed state, post traumatic stress disorder and other noted mental disorders.
25. The applicant gave notice prior to the hearing of the application that he wished to rely upon the following additional ground:
    8. The Tribunal did not take into account Federal Magistrates Court of Australia Family Court order issued 14th August 2008 before Federal Magistrate Kelly that both parties, the father and the mother, have equal shared responsibilities regarding their children. As such the applicant had a right in whether or not the children could be interviewed by Dr Asquith. The applicant gave no such permission therefore Dr Asquith’s report should be removed as evidence and not taken into consideration. Furthermore the A.A.T. decision/order to make Dr Asquith’s report unavailable to the applicant unables [sic] the applicant to refute or defend any accusations the applicant have been accused of in Dr Asquith’s report.

DR ASQUITH’S EVIDENCE

26. It is convenient to consider the grounds relied upon by the applicant which directly relate to Dr Asquith’s evidence namely, ground 2 and ground 8. Ground 2 states that the applicant did not have the opportunity to present evidence in response to the evidence of Dr Asquith. Ground 8 appears to raise two separate points. It is alleged that the applicant, who, along with his ex-partner, was given equal shared parental responsibility for his children pursuant to consent orders made on 14 August 2008 by the Federal Magistrates Court, did not consent to his children being interviewed by Dr Asquith. The applicant says that Dr Asquith’s report should therefore not have been taken into account by the Tribunal. It is also alleged that the effect of the Tribunal’s order denying the applicant access to Dr Asquith’s report was to prevent him from defending accusations made against him in Dr Asquith’s report.
27. For the purpose of considering these matters it is necessary for us to refer to the relevant provisions of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and some related authorities.
28. Section 35 of the AAT Act provides:

35 Hearings to be in public except in special circumstances
Scope
(1AA) This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.
Public hearing
(1) Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.
(1A) If, at a time a hearing is in public, a person participates in the hearing by a means allowed under section 35A, the Tribunal is to take such steps as are reasonably necessary to ensure that the public nature of the hearing is preserved.
Private hearing etc.
(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and
(aa) give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and
(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.
(3) In considering:
(a) whether the hearing of a proceeding should be held in private; or
(b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.

Section 39 of the AAT Act provides:

39 Opportunity to make submissions concerning evidence
(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
(2) This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.

29. Thus, s 39(1) establishes the general rule that applies to a proceeding before the Tribunal for a review of (inter alia) a decision under s 501 of the Migration Act. It requires that a party to such a proceeding be given a reasonable opportunity to present his or her case, to inspect documents which the Tribunal proposes to have regard to in reaching its decision and to make submissions in relation to those documents.
30. However, the general rule is subject to express exceptions including that created by s 35(2). Section 35(2) confers on the Tribunal the power to make orders directing that a hearing or part of a hearing take place in private, directing who may be present and prohibiting or restricting publication of evidence or the disclosure of documents lodged with the Tribunal or received in evidence by it. It may make such an order if it is satisfied that it is desirable to do so not only by reason of the confidential nature of any evidence or documents but “for any other reason”.
31. Thus, the power conferred on the Tribunal by s 35(2) is, on its face, a wide one and discretionary. Section 35(3) provides that the exercise of the discretion must occur on a particular basis namely, that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal, and the contents of documents lodged with, or received in evidence by the Tribunal, should be made available to the public and all parties.
32. In Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Brennan J (as his Honour then was), sitting as President of the Tribunal, heard an application to review a deportation order made under what was then s 12 of the Migration Act based upon Mr Pochi’s conviction for a drug offence for which he was sentenced to imprisonment for two years. Before the Tribunal the Minister sought to rely upon other evidence relating to Mr Pochi’s alleged criminal activities. His Honour permitted a police officer to give that evidence in the absence of the public and Mr Pochi. His Honour’s reasons also disclose that while Mr Pochi’s legal representatives remained present during the police officer’s evidence, they were prohibited from disclosing it to their client.
33. After referring to s 35(2) of the AAT Act, which was relevantly in identical terms to s 35(2) as it now stands (sub-para (aa) has since been added) Brennan J said (at 270-271):

To exclude the public from a hearing is a serious step, for the Tribunal is required by statute (s 35(3)) to “take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be in public”. This is a principle which is binding upon courts of justice (see R v Tait, Federal Court of Australia, 1 May 1979, unreported), and which is calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process (McPherson v McPherson [1936] AC 177 at 200) and its exposure to public scrutiny is calculated to enhance greater public confidence in it.
Serious though the exclusion of the public is, the exclusion of a party from a hearing which affects his interests is a much graver step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him —a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal. In Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395, 396 Dixon CJ and Webb J said: “For it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard.

34. Then, after referring to the prima facie entitlement of a party the subject of a deportation order to a full hearing of his case and the protection that such a hearing is designed to give, his Honour turned to s 35(2) and said (at 272-273):

Yet the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant — they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.
An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must appear a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public;
...
To exclude a party, a further criterion must be satisfied. As it must appear that the exclusion of the party is essential to preserve the proper confidentiality of the information needed to determine the application, it is necessary to show that the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence, and denying the party access to it, than by refusing an order to exclude the party. This criterion is not easy to satisfy though it is possible to do so. The criterion is not easy to satisfy because an applicant's interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible.

35. On 5 July 2010, an ex parte application was made by the respondent for an order that the report prepared by Dr Asquith dated 28 June 2010 and a letter sent by Dr Asquith to the respondent’s solicitors dated 2 July 2010 not be disclosed to the applicant. Both the report and the letter were made available to the applicant’s legal representative on the condition they would not be disclosed. It appears that this was an interim arrangement to allow time for the applicant’s solicitor to consider the material and to allow the question whether the order should be continued to be fully argued.
36. On 9 July 2010 the solicitor for the applicant applied to the Tribunal for the discharge of the order of 5 July 2010. After hearing argument, the Tribunal refused to discharge the earlier order and gave reasons for its decision. It is necessary to refer to those reasons for decision in some detail.
37. The reasons make it clear that the Tribunal was mindful of the requirements of s 39 of the AAT Act and s 35(3) including, in particular, the desirability of ensuring that documents lodged with the Tribunal or received by it in evidence should be made available to all parties. After recounting some procedural issues, the Tribunal said:
    5. The application that the prohibition on the disclosure of Dr Asquith’s report be lifted raises difficult issues.
    6. It is part of Mr Tucker’s case that the best interests of his children is a factor strongly favouring a decision that he should be allowed to remain in Australia and that it is a factor which tips the balance against other factors which would tend in favour of a decision that his visa be cancelled. Short notes have been provided by two of his children expressing their love for their father and asking that he be allowed to remain in Australia.
    7. Dr Asquith, who is a family consultant, interviewed the three children at the request of the respondent. The conclusion which was reached by Dr Asquith in her report was that the cancellation of Mr Tucker’s visa and his removal from Australia would not be against the best interests of each of the children. That conclusion was stated after a long discussion, not only of things said by the children at the interviews with her but also of identified factors which she took into account in reaching her professional opinion. Dr Asquith’s letter of 2 July 2010 expressed the view that it would be contrary to the best interests of the children for Mr Tucker to be shown her report.
    8. Ms Nunan has made the point, having read the report, that she thinks Mr Tucker would deny many of the matters Dr Asquith has reported and taken into account. She has argued that Mr Tucker is denied an opportunity to give full evidence and is unreasonably impeded in giving instructions to her if he cannot read Dr Asquith’s report. These are factors which deserve the most serious and anxious consideration and in many cases they would afford an adequate reason for disclosure of the report notwithstanding the concerns which Dr Asquith has expressed.
    9. Another factor which must be taken into account is that if Mr Tucker’s application does not succeed and he is removed from Australia he will be, physically at least, removed from contact with his children although it would remain open to him, as it does at the moment, to attempt to contact his children by telephone. On the other hand, if his application succeeds, it would necessarily be because, notwithstanding Dr Asquith’s opinion, the Tribunal had assessed that the best interests of Mr Tucker’s children were in fact served by him remaining in Australia.
38. The Tribunal then referred to the decision of Brennan J in Pochi. It quoted the last paragraph in the passage we have already extracted at [34] above in which Brennan J refers to an additional criterion that must be satisfied if a party (as opposed to the public) is to be excluded from a hearing namely, it must be shown that the evidence is of such importance and cogency that justice is more likely to be done by receiving the evidence in confidence and denying the party access to it, than by refusing any order denying the party access to it.
39. The Tribunal also referred to the High Court’s observations in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [25] that “the application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case.”
40. The Tribunal then said:
    12. The fact that Mr Tucker has an opportunity to state the position in his own evidence and that he has a legal representative through whom the appropriate submissions may be made is a factor to take into account (see Barbaro v Minister for Immigration & Ethnic Affairs [1982] FCA 141; (1982) 65 FLR 127 at 131). Mr Tucker appreciates that the question of the best interests of his children is a primary factor to be taken into account by the Tribunal. He has had a full opportunity to give an outline of his own account about his relationship with his children even though he has not been made aware of the particular matters on which Dr Asquith’s opinion is based.
    13. It is important with respect to Dr Asquith’s report to understand the foundation for the professional opinion which Dr Asquith has expressed but ultimately it is her professional opinion which is of most significance. Dr Asquith’s knowledge and opinions depend in part on what she was told by the children. There is no reason at present to believe that she has not faithfully recounted those matters. Moreover, the issue raised by Dr Asquith’s report is not one which turns only on objective facts, but also on subjective impressions held by the children and on Dr Asquith’s assessment of their psychological interactions with their father. Any exchange with Dr Asquith in cross-examination based only on the premise that the children had misunderstood Mr Tucker’s actions or motivation, or that they were mistaken about the facts, is likely to be unproductive. The children will not be called as witnesses in the case. There is no question of them being cross-examined or a different version of events being put to them.
    14. I am satisfied, at the moment at least, from the terms of Dr Asquith’s report that the information that she has recounted was given to her in circumstances where Mr Tucker’s children were entitled to believe that what they said would be treated sensitively and with discretion. It does not appear to me, from its nature, to be information which they intended would be shared with their father.
    15. Although the matter is not without difficulty, and I am conscious of the need for Mr Tucker to have a fair opportunity of advancing his own case, and answering the case in response, in all the circumstances I am not persuaded that the interests of justice or the requirements of procedural fairness dictate or suggest that the order which I made on 5 July 2010 should be varied. It goes without saying that, if sufficient grounds arose for doing so, the question could be raised again.
41. The Tribunal dismissed the application for revocation of the order made on 5 July 2010. It then made an order providing for the service of Dr Asquith’s report and letter on the applicant’s legal representatives but directed that, until further order, publication and disclosure of those documents be restricted to those members and staff of the Tribunal requiring access for the performance of their duties, the respondent’s legal representatives and the applicant’s legal representatives. The Tribunal also directed the applicant’s legal representatives not to disclose or discuss the contents of the documents with anyone without first obtaining leave from the Presiding Member of the Tribunal.
42. The hearing of the applicant’s application for merits review commenced a few days later. The applicant was excluded from the hearing while Dr Asquith gave her evidence at which time her report was formally received into evidence. It is clear that the reasons for the applicant being excluded from this part of the hearing were essentially the same as those stated in the reasons of 9 July 2010.

CONSIDERATION

Grounds 2 and 8

43. The first question which arises is whether the s 35(2) orders were properly made. The scope of the Tribunal’s duty to afford the applicant procedural fairness is subject to the provisions of the AAT Act which includes s 35. If the s 35(2) orders were properly made then there could not be any failure to afford the applicant procedural fairness arising out of the implementation of those orders in accordance with their terms.
44. Dr Asquith’s letter of 2 July 2010 expressed a view about the risks involved to the applicant’s children in the event that a copy of her report was made available to the applicant. Her letter explained why she held that view. It was substantially based upon her professional assessment of the information obtained by her during the course of interviews with the children in which they had provided her with histories of their relations with their father.
45. We have already referred to the relevant statutory provisions and the statement of Brennan J in Pochi of the principles that should guide the making of orders under s 35(2).
46. It is clear from a reading of the Tribunal’s reasons of 9 July 2010 that it was mindful of the prima facie entitlement of the applicant to have access to Dr Asquith’s report and letter. The Tribunal’s reasons show that it gave consideration to the argument put by the applicant’s legal representative that the s 35(2) orders would deny her client the opportunity to give full evidence and would impede the giving of instructions by him to her. The Tribunal noted these were “factors which deserved the most serious and anxious consideration”.
47. The Tribunal noted that the applicant was legally represented and that his legal representative would be able to make submissions on his behalf: Barbaro v Minister for Immigration and Ethnic Affairs [1982] FCA 141; (1982) 65 FLR 127 at 131. The Tribunal also noted that the applicant understood that the best interests of his children was a primary factor that would need to be taken into account by it and that the applicant had a full opportunity to give his own account of his relationships with them even though, given the s 35(2) orders, that could only occur in circumstances where he had not been given access to Dr Asquith’s report.
48. Both the decision to make the s 35(2) orders in the first place, and the subsequent decision not to revoke those orders, involved the exercise of a broad discretion. For present purposes we think it appropriate to focus on the Tribunal’s decision not to revoke the earlier ex parte orders which were only ever intended to operate until the parties’ legal representatives had an opportunity to be heard. Copies of Dr Asquith’s report and letter were provided to the applicant’s legal representative at that stage and for that purpose.
49. As the Tribunal’s reasons for not revoking the s 35(2) orders make clear, the Tribunal understood that its orders restricted the applicant’s ability to give instructions to his legal representative as well as his ability to give evidence in response to Dr Asquith’s report. Having taken those matters into account, and weighed them against the risk identified in Dr Asquith’s letter, the Tribunal came to the decision that the orders should not be revoked.
50. We do not think the Tribunal’s decision not to revoke the orders it made under s 35(2) can provide the foundation for a conclusion that the applicant was denied procedural fairness unless we are satisfied that the Tribunal acted upon a wrong principle, allowed extraneous or irrelevant matters to guide it, mistook the facts or failed to take into account some material consideration. When the applicant’s challenge to the Tribunal’s s35(2) orders is approached in this way, it is clear that it cannot succeed because the Tribunal did none of these things.
51. In particular the Tribunal recognised that the issue raised by Dr Asquith’s report did not turn solely upon objective facts but upon the subjective impressions of the children. This led the Tribunal to observe that any exchange with Dr Asquith in cross-examination based on the premise that the children had misunderstood their father’s actions or that they were mistaken about the facts was likely to be “unproductive”. Moreover, as the Tribunal went on to record, there was no question of the children being called as witnesses or of different versions of the relevant events being put to them.
52. We should also add that the effect of the s 35(2) orders made by the Tribunal did not deprive the applicant of the opportunity to present evidence in response to that given by Dr Asquith. It was understood by the applicant that Dr Asquith’s report was relied upon by the respondent to show that the cancellation of the applicant’s visa and his removal from Australia would not be against the best interests of the applicant’s children. So much is clear from the reasons given by the Tribunal for its decision not to revoke the s 35(2) orders. It was also understood by the respondent that the interests of his children were a primary consideration in the exercise of the discretion under s 501 of the Migration Act. The s 35(2) orders did not prevent the applicant from giving evidence in relation to his relationship with his children. The applicant knew, albeit in general terms, the subject matter of Dr Asquith’s report and his legal representative knew precisely what it contained. It was open to the applicant’s legal representative to explore the matters raised in Dr Asquith’s report in cross-examination. And it was also open to the applicant’s legal representative to call evidence in chief from the applicant covering matters dealt with in Dr Asquith’s report. To the extent she may have considered it necessary or desirable to obtain instructions from the applicant in relation to specific matters referred to in Dr Asquith’s report, it was open to her to seek leave to do so on her client’s behalf. A suggestion was made by the applicant in submissions that his legal representative took the view that the order operated to prevent any discussion with him about any fact on which Dr Asquith’s report was based even if such a discussion did not involve reference to the report itself. However, there was no evidence to this effect before us. Had there been, it may have been challenged by the Minister. In the absence of such evidence it is unnecessary for us to consider whether the order had this effect and, if so, the legal significance (if any) of an order in those terms.
53. The reasons of the Tribunal make clear that it was willing to consider an application to vary the s 35(2) orders should justification for such a variation emerge during the hearing. No such application was made on behalf of the applicant. This is not surprising. A review of the evidence as a whole suggests that the justification for the s 35(2) orders being made in the first place was strengthened rather than diminished by the evidence of other witnesses subsequently called by the respondent including, in particular, Professor Greenberg, Mr Trevaskis and Ms Turner.
54. We are not satisfied that the Tribunal erred in denying the applicant access to Dr Asquith’s report or in excluding the applicant from the hearing while Dr Asquith gave oral evidence. Nor are we satisfied that the Tribunal’s decisions in relation to these questions gave rise to any relevant procedural unfairness.
55. There is another point raised by the applicant in relation to Dr Asquith’s report. The applicant says that under orders made in the Federal Magistrates Court on 14 August 2008, he was given equal shared parental responsibility for his children and, consequently, Dr Asquith was not entitled to interview the applicant’s children without his consent. The applicant contends that the Tribunal should not have received Dr Asquith’s report in evidence or taken it into consideration. Implicit in this submission is an assertion by the applicant that he did not consent to Dr Asquith interviewing his children.
56. We do not think that there is any substance in this point. No question of consent was raised by the applicant’s legal representative before the Tribunal. If it had been raised before the Tribunal at the appropriate time, it may have been open to the Tribunal to refuse to receive Dr Asquith’s report in evidence if it was satisfied that he had not consented to Dr Asquith interviewing his children. However, it is not necessary for us to express a view on that issue and we do not do so. By failing to take this point before the Tribunal, the applicant waived any right he may have had to object to Dr Asquith’s report.

Grounds 1 and 3 to 7

57. There remains for consideration grounds 1 and 3 to 7 of the application. Ground 1 asserts that the applicant was not able to present evidence from two psychiatrists who the applicant says were treating him before he was detained. We are not satisfied that this is in fact correct but, assuming that it is, the difficulty for the applicant is that there is no suggestion that the Tribunal took any step, or failed to take any step, that prevented the applicant from calling this evidence. Leaving aside the issue of Dr Asquith’s evidence (which we have previously dealt with) there is no suggestion on the materials before us that the Tribunal did not afford the applicant procedural fairness by denying him the opportunity to call evidence. We do not think there is any substance to ground 1.
58. So far as grounds 3 to 7 are concerned, each of them asserts that the Tribunal failed to take various matters into account or failed to give various matters sufficient weight. We are not satisfied that the Tribunal failed to take any of the matters identified by the applicant into account. And questions of what weight should be given to various factors was a matter for the Tribunal. It is clear to us that ground 1 and grounds 3 to 7 involve an impermissible attempt by the applicant to go into the merits of the Tribunal’s decision. We do not think there is substance to any of these grounds.
59. We should add in relation to ground 3 that the Tribunal considered other evidence apart from that of Dr Asquith in coming to its view that the best interests of the children would not be adversely affected by the cancellation of the Applicant’s visa. The evidence included the report of Mr Trevaskis who referred to some level of fear of their father expressed by the Applicant’s children.

DISPOSITION

60. The application for judicial review should be dismissed with costs.
    

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Jacobson & Nicholas.

Associate:
Dated: 15 February 2011