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Tribunal’s failure to consider evidence

Umi v Minister for Home Affairs [2019] FCA 2148

Facts: Approximately an hour before the hearing commenced, the Tribunal received an email from the Applicant’s partner. She subsequently sent an additional email when the hearing had commenced. The Tribunal declined to consider the two sets of correspondence because:

  • It was precluded by s 500(6H) of the Migration Act;
  • It was procedural unfair to the respondent that the Tribunal accepted a witness statement and other documents on the morning of a hearing, given that the respondent’s case preparations had been concluded in the absence of such materials;
  • The Applicant had sufficiently been on notice about the hearing dates and due dates for submitting material he intended to rely upon. The Applicant had not requested more time at any stage or the pre-hearing process to lodge further materials;
  • The application was an expedited matter in which a decision must be made by 6 August 2019. There was insufficient time to adjourn the hearing by two days to enable the Respondent to consider the new material, and to comply with the requirements of s 500(6H). Moreover, an adjournment on this basis might be seen as an attempt to circumvent a statutory provision of the Act; and
  • The Applicant remained imprisoned and it was important that the outcome of his application be determined as soon as possible, while ensuring procedural fairness to both parties.

Applicant’s contention: There was a single ground of review in the Applicant’s application, which concerned the way the Tribunal dealt with the material submitted to it on the morning of the hearing. The Applicant asserted that the Tribunal’s decision was affected by error as it decided not to adjourn the hearing for two days in order to consider material provided.

Considerations on denial of Procedural fairness, Legal unreasonableness and Materiality:

  • The court considered that there was no denial of procedural fairness by the Tribunal by not adjourning the review for a period of at least two days.
  • It could not be said that any Tribunal acting reasonably would inevitably have adjourned the review hearing in the circumstances facing the subject Tribunal.
  • Even if there was a denial of procedural fairness, in order for such to be characterized as affecting the jurisdiction of the Tribunal, the denial would need to be of a nature which deprived the applicant of the “realistic possibility” of a different outcome on his review: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [24] and [31]. It is usually a question of fact on which an applicant bears the onus of proof: see SZMTA at [45]-[46]. In other words, if the Tribunal had adjourned the hearing and considered the material submitted in the morning of the hearing, had the applicant sufficiently established, as a matter of fact, that there was a “realistic possibility” the Tribunal might have reached a different conclusion on the review? It was answered in negative.

Decision: The appeal was dismissed.

Matthews v Minister for Home Affairs [2019] FCA 2184

Applicant’s contention: The applicant challenged on the basis that the Tribunal erred by failing to have proper regard to the strength of his ties to Australia. In particular, he alleged that the Tribunal did not have adequate regard to the evidence from his family about his father-like role in the family.

Considerations: The Court accepted that the Tribunal had apparently overlooked letters provided by two of the applicant’s younger brothers. Nevertheless, in circumstances where the Tribunal considered and accepted separate evidence from his mother, and his other brother, regarding his role to the family, the Court considered that the Tribunal’s apparent failure to have regard to the letters was not material in which there was no realistic possibility that this would have resulted in a different outcome. Therefore, the Court held that it did not amount to a jurisdictional error.

Decision: The appeal was dismissed.

XMBQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2134

Facts: The applicant, a Somali national, had sought judicial review of a decision of the Tribunal not to revoke the cancellation of his Subclass 200 Refugee visa. The visa was cancelled under section 501(3A) of the Act as the Minister was satisfied that the person did not pass the “character test” under section 501(6) (a) or (e) and the person was serving a sentence of imprisonment on a full-time basis. The applicant did not dispute that he did not pass the character test or that his visa was invalidly cancelled under section 501(3A). The issue was whether the Tribunal fell into legal error by operation of section 501CA(4)(b)(ii).

Applicant’s contention:

  • Ground 1: The Tribunal had failed to consider representations as to a reason why the cancellation decision should be revoked, being to the effect that he would be exposed to serious harm in Somalia arising from his mental health conditions.
  • Ground 2: The Tribunal had failed to consider the consequence of its decision (or evidence as to the consequence of its decision), being that the applicant would be subject to indefinite detention.

Considerations:

  • Ground 1: The Tribunal had failed to engage meaningfully with the applicant’s claims as to the risks of harm he would face if returned to Somalia. The Tribunal’s statutory task under section 501CA(4) of the Act required an evaluative process and, had the Tribunal truly engaged in an act of intellectual process with the significant matters put forward by the applicant on the likelihood of harm, there was a realistic possibility that the Tribunal’s decision could have been different if it had given proper and meaningful consideration to the applicant’s claims: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 445 [45] ‑ [50] per Justices Bell, Gageler and Keane.
  • Ground 2: The Court held that the Tribunal had not considered the material contained in the DFAT report, but the applicant did not rely on the DFAT report before the Tribunal and no claim was made. To the contrary, the applicant expressly put to the Tribunal there was no evidence that there was any obstacle to the immediate removal of the applicant to Somalia if the decision under review was affirmed. Thus, it was not put into issue that there might be obstacles to the applicant’s removal. The Tribunal did not err by not considering the parts of the DFAT report to which it was not taken and which had not been relied upon. Accordingly, this argument failed.

Decision: As the applicant succeeded on Ground 1, the decision of the Tribunal was set aside and remitted to the Tribunal for consideration in accordance with the law.

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