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Jang Eun Lee - Lawyer Consultant, Korea

  • Visa Plan Australia

Not all Tribunal's decisions can be heard by the Courts

Updated: Feb 10

Summaries of Recent Cases

1. Umi v Minister for Home Affairs [2019] FCA 2148 - Appeal dismissed - where new material was submitted less than two days before the hearing

This refers to an application for judicial review of a decision of the Administrative Appeals Tribunal to cancel the Applicant’s permanent visa. By that decision, the Tribunal affirmed the Department’s decision.

Background: Approximately an hour before the hearing commenced, the Tribunal received an email from the Applicant’s partner. The partner subsequently sent an additional email when the hearing had commenced. The Tribunal declined to consider the correspondence from the partner lodged in the morning of the hearing because:

  • It was precluded by s 500(6H) of the Migration Act;

  • It was procedurally 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 Contentions: 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 Tribunal’s 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, and identified four kinds of errors as follows:

  • was a legally unreasonable non-exercise of the Tribunal’s adjournment power in s 40(1)(c) of the AAT Act 1975;

  • involved a failure to correctly construe the procedural fairness provisions in the AAT Act leading the Tribunal to misunderstand its own task;

  • denied Mr Umi the reasonable opportunity to present his case as required by s 39(1) of the AAT Act; and

  • failed to afford Mr Umi procedural fairness,

with the consequence that the Tribunal constructively failed to conduct its review.

The focus of the ground was on the Tribunal’s decision not to adjourn the hearing. The Applicant contended that only a two day adjournment was required, so that the prohibition in s 500(6J) – which it is common ground was the applicable provision, despite the Tribunal’s mistaken reference to s 500(6H) – could be avoided.

Resolution: The court regarded that aside from the misunderstanding error two out of the four bases identified in the application related to procedural fairness arguments and the other basis was legal unreasonableness.

  • Misunderstanding of the available options: The court rejected the contention that the Tribunal had failed to understand the options available to it and failed to understand it could adjourn the review.

  • Denial of procedural fairness: The court considered that there was no denial of procedural fairness at all because the Applicant was not denied the opportunity to put before the Tribunal the issues which might have rise to “another reason” why the visa cancellation should be revoked; and in particular, he was not denied a meaningful opportunity to persuade the Tribunal that it should give the most weight to the best interests of his children and that this should outweigh the other adverse considerations which might tend to support the maintenance of the visa cancellation. The court therefore concluded there was no denial of procedural fairness to the applicant in the Tribunal failing to adjourn his review for a period of at least two days.

  • Legal unreasonableness: In the circumstances facing the Tribunal in the proceedings, it could not be said that any Tribunal acting reasonably would inevitably have adjourned the review hearing.

  • Materiality: Even if there was a denial of procedural fairness to the Applicant, in order for such a denial to be characterised 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 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.

2. Matthews v Minister for Home Affairs [2019] FCA 2184 - Appeal dismissed - where the Applicant’s mother and three brothers provided letters but the Tribunal only referred to the evidence of the mother and one brother

This refers to an application for judicial review of a decision of the Administrative Appeals Tribunal to cancel the Applicant’s permanent visa. By that decision, the Tribunal affirmed the Department’s decision. The Applicant challenged the Tribunal’s decision on the basis that the Tribunal erred by failing to have proper regard to the strength of the applicant’s ties to Australia in considering whether or not to revoke the cancellation of the applicant’s visa. In particular, the applicant alleged that the Tribunal did not have adequate regard to the evidence from the applicant’s family about the father-like role that the applicant held in their family. In summary, the Court accepted that the Tribunal had apparently overlooked letters provided by two of the applicant’s younger brothers.

Resolution: Nevertheless, in circumstances where the Tribunal considered and accepted separate evidence from the applicant’s mother, and the applicant’s other brother, regarding the role of the applicant to their family, the Court considered that the Tribunal’s apparent failure to have regard to two of 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 and the application for judicial review of the Tribunal’s decision was accordingly dismissed.

3. XMBQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2134 - Appeal allowed - where the Tribunal affirmed the Minister’s decision without sufficient regards to the Applicant’s mental health conditions

The applicant, a Somali national, had sought judicial review of a decision of the Tribunal to affirm the decision of the Minister under section 501CA(4) of the Migration Act 1958 not to revoke the cancellation of his Subclass 200 Refugee visa. The visa was cancelled under section 501(3A) of the Act, which required the Minister to cancel a visa if 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 validly cancelled under section 501(3A). The issues were whether the Tribunal fell into legal error in determining that it was not satisfied there was another reason why the original decision should have been revoked: section 501CA(4)(b)(ii).

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.

  • The Court held that 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 Tribunal had failed to consider the consequence of its decision (or failed to consider evidence as to the consequence of its decision), being that the applicant would be subject to indefinite detention.

  • The applicant submitted that the DFAT report contradicted the finding of the Tribunal and raised the possibility that the applicant might, in the event that repatriation was not reasonably practicable, be subject to indefinite detention, but this possibility was not expressly considered in the Tribunal decision. It was submitted further that the failure of the Tribunal to consider the consequence that the applicant would be subject to indefinite detention was material.

  • The Court held that the Tribunal had not considered the material contained in the DFAT report, but the applicant’s representative did not rely on this part of the DFAT report before the Tribunal and no claim was made that there might have been an obstacle to the removal of the applicant to Somalia if the decision under review was affirmed. To the contrary, the applicant’s representative 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. The submission was consistent with the statement of facts, issues and contentions filed on behalf of the applicant in support of his application to the Tribunal for review where it was stated that the applicant was liable to be returned to Somalia immediately should he be unsuccessful in the review. Thus, it was not put into issue that there might be obstacles to the applicant’s removal. Nevertheless, the Tribunal should have had regard to the material in that report which indicated that there may be an obstacle to the applicant’s removal to Somalia. The submission disregarded the purpose and function of the statement of facts, issues and contentions, which was to inform the Tribunal of the issues in dispute and of the case to be presented by the applicant. In circumstances where it was never flagged as an issue that there may be obstacles to the applicant’s removal, and indeed where the thrust of the submission was that the consequence of affirming the decision under review would be that the applicant would return to Somalia, 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, ground 2 fails.

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.