Brown v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 917
•16 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brown v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 917
File number: MLG 557 of 2023 Judgment of: JUDGE BLAKE Date of judgment: 16 October 2023 Catchwords: MIGRATION – Whether findings of the Administrative Appeals Tribunal (‘Tribunal’) were unreasonable, irrational, or illogical – whether Tribunal denied Applicant procedural fairness – whether refusal to grant an adjournment was legally unreasonable – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 12.01.
Migration Act 1958 (Cth) ss 116, 116(1)(e), 116(3), 360(1), 363(1)(b).
Cases cited: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 27 September 2023 Place: Melbourne Counsel for the Applicant: Ms Brumby Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Ms Lucas Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 557 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TYSON BUCK JAMES BROWN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
16 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Amended Application filed 12 September 2023 be dismissed.
2.The Applicant pay the First Respondent’s costs of the proceeding fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 2 March 2023. In that decision, the Tribunal affirmed a decision of a delegate of the Minister (‘delegate’) to cancel the Applicant’s Subclass 444 (Special Category) visa (‘visa’).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a New Zealand national. The Applicant arrived in Australia on 14 October 1998. He was then eight years old. Now an adult, he is functionally illiterate.
On 3 February 2020, the delegate issued to the Applicant a Notice of Intention to Consider Cancellation of his visa (‘Notice’). In the Notice, the delegate stated that there appeared to be grounds for cancellation of the visa under section 116 of the Migration Act 1958 (Cth) (‘Act’). The Notice set out particulars of the grounds for cancellation which relevantly included a summary of the Applicant’s criminal history in Australia. The delegate also informed the Applicant that the Applicant’s criminal history, alongside his ongoing violent behaviour, indicates the likelihood of re-offending which may pose a risk to the safety of the Australian community, and therefore grounds existed to consider the cancellation of his visa under section 116(1)(e)(i) of the Act as his presence in Australia is, or may be, a risk to the safety of the Australian community.
That Notice was sent to the Applicant at the Melbourne Metropolitan Remand Centre. The Applicant did not respond to the Notice.
On 7 January 2021, the delegate cancelled the Applicant’s visa.
On 5 October 2022, the Applicant applied to the Tribunal for review of the delegate’s decision (‘Tribunal Application’). That application was lodged out of time. The Tribunal subsequently accepted that the Notice had been sent to an incorrect email address. The Tribunal therefore accepted the application filed by the Applicant.
A directions hearing was subsequently held by the Tribunal on 18 November 2022 (‘directions hearing’).
On 23 January 2023, the Tribunal wrote to the Applicant, inviting him to a further hearing.
On 24 February 2023, the Tribunal heard the Applicant’s Tribunal Application. The Applicant attended the hearing.
On 2 March 2023, the Tribunal affirmed the decision to cancel the Applicant’s visa (‘Reasons’).
The Applicant filed his originating application and a supporting affidavit in this Court on 31 March 2023.
Given the Applicant is illiterate, on 3 August 2023, I made orders issuing a pro bono referral certificate to the Applicant, pursuant to rule 12.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) to enable him to obtain legal representation. As it happened, before that certificate needed to be acted on, Victoria Legal Aid, of its own accord, entered an appearance for the Applicant. The Court is grateful to Victoria Legal Aid, and Ms Brumby of Counsel for the assistance they have given to the Applicant.
At the hearing, the Applicant relied on his Amended Application filed 12 September 2023 (‘Application’), an affidavit of his solicitor Lawson Bayly filed 12 September 2023, and a written outline of submissions filed 12 September 2023. The Minister relied on the Response filed 12 April 2023, and a written outline of submissions filed 25 September 2023. The Minister also prepared a Court Book, and a Supplementary Court Book for the purposes of the proceeding.
THE APPLICATION
Ground 1
The first Ground of Review in the Application is:
1.The Tribunal’s decision was legally unreasonable, irrational and illogical, or based on findings that were irrational and illogical or for which there was no evidence, and constituted a denial of procedural fairness to the Applicant or was otherwise made other than in accordance with law.
Particulars
a. The Tribunal purported to consider the “circumstances in which ground of cancellation arose”: Tribunal’s reasons, [74].
b. A dispositive adverse finding by the Tribunal, which the Tribunal considered enlivened the discretion to cancel the Applicant’s visa under s 116(1)(e) of the Migration Act 1958 (Cth) (Act), was that the Applicant had not seen a psychologist or otherwise “grappled with his past”: at [53].
c. The Tribunal further found at [75]-[76] of its reasons that:
The circumstances in which the grounds for cancellation arose are that the applicant committed offences. As noted above, the root causes for the applicant’s ongoing offending may include his upbringing by the state and the abuse he received at the hands of his stepfather. While some weight can be placed on this past, along with the more practical circumstances in which the ground of cancellation arose such as an inability to access a driver’s licence, ultimately, though, some responsibility must be borne by the applicant for the choices he made.
The applicant has a long history of offending such that he has had numerous engagements with professionals including during his youth. …
d. The Applicant claimed that “he saw a psychologist once when he was younger”: Tribunal’s reasons, [48].
e. In conducting the review, the Tribunal was required to identify to the Applicant any issue critical to the decision which was not apparent from its nature or the terms of the Act and which would not obviously be open on the known material.
f. The Applicant was never put on notice that the Tribunal may make a finding that his limited engagement with professionals, such as psychologists, including during his periods of incarceration, would be a reason for the Tribunal affirming the decision under review. Nor was this a finding made or a factor considered by the delegate, such that the Applicant cannot be said to have been on notice that this was an issue critical to the Tribunal’s review.
g. Further, there was no evidence or rational or logical and probative basis for concluding that he had had “numerous engagements” with professionals during his youth, and the Tribunal adopted an unwarranted assumption that his contact with the criminal justice system must have involved such engagements.
h. In the premises:
i. the Applicant was denied procedural fairness; and
ii. the Tribunal’s decision lacked an evident and intelligible justification or evidentiary foundation.
i. The error was material, because:
ithe Tribunal discounted the “root causes” of the Applicant’s offending as a factor militating against cancellation at least in part on the basis of the finding at [76] of its reasons; and
ii. there is a realistic possibility that, had the Applicant been given an opportunity to provide evidence or submissions relevant to the reasons for his limited past engagement with professionals, including during his periods of incarceration, the Tribunal’s decision could have been different.
In order to consider this Ground of Review, it is necessary to analyse what the Tribunal said, and did.
The Tribunal was concerned with determining whether the presence of the Applicant in Australia is, or may be, or would or might be, a risk to the health, safety or good order of the Australian community, or a segment of the Australian community, so as to enliven the cancellation power under section 116(1)(e) of the Act. In approaching that task, the Tribunal, among other things:
(a)set out the history of the Applicant’s criminal offending at paragraph [27] of its Reasons, and the pending charges against the Applicant included in the Notice at paragraph [28] of its Reasons;
(b)considered evidence about the Applicant’s intention to stop offending at paragraphs [34]-[44] of its Reasons;
(c)examined the Applicant’s past, and how it contributed to his offending. In examining these matters, the Tribunal:
(i)noted the Applicant’s history of abuse, and being placed in state care at paragraphs [45]-[47] of its Reasons;
(ii)recorded that the Applicant had seen a psychologist once when he was younger, and they put him on some medicine, so he didn’t go back, at paragraph [48] of its Reasons;
(iii)recorded the Applicant’s claim that he had mental health issues, and that, among other things, he would manage it by smoking marijuana, and training in the gym, at paragraph [50] of its Reasons;
(iv)stated at [52] that ‘In considering the applicant’s circumstances I note that he has a long history of offending that began when he was 13 years old. Despite having a wide array of interventions including entering in an accountable undertaking, community corrections orders, fines and bonds, he continued to offend. The type of offending also appears to have escalated over the years’;
(v)noted at [53] that the Applicant’s journey through state care had not served him well, and matters may have been different had the Applicant identified his past challenges as a source of his problems, and was working to mitigate the influence they could have on his future ‘such as seeing a psychologist, undertaking reading and writing lessons, or seeking help to get a license. But other than acknowledging that he has anger management issues and his strategy of going to the gym to deal with them, he has not grappled with his past and as such there is little that can weigh in his favour as an indicator that he is less likely to offend in the future and in turn be a risk to the community’;
(vi)stated at [55] that ‘when I consider the applicant’s past offending, the repeated and escalating nature of it, noting that he has undertaken very limited efforts to break with his past and that there is little that he could concretely identify as being a driver that would change the direction of his life, I find that the ground for cancellation in s 116(1)(e) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled’;
(vii)proceeded to consider whether it should exercise its discretion to cancel the visa at paragraphs [56]-[97];
(viii)noted at [76] that the ‘applicant has a long history of offending such that he has had numerous engagements with professionals including during his youth. Opportunities to reflect on his life and his choices were available after each encounter with the law. Yet, for twenty years he continued to turn to a life that would put others in the community at risk or in harm’; and
(ix)stated at [78] that ‘For the reasons of his extensive offending and choices he made along this pathway, I find that any weight that can be placed on his past circumstances as being out of his control, is outweighed by his ongoing and repeated disregard for others through his behaviour and a lack of an effort to remedy the situation’.
In submissions, the Applicant took aim at the statement by the Tribunal at paragraph [76] of its Reasons that he had had ‘numerous engagements with professionals including during his youth’. The Applicant contended that the reference to ‘professionals’ could only be a reference to persons who provide support services to persons who come into contact with the criminal justice system. The Applicant submitted there was no known, or widespread, or established basis warranting any assumption that all persons who come into contact with the criminal justice system in Victoria are afforded an opportunity to benefit from professional support services. Moreover, and importantly, it was submitted that that finding was directly contradicted by the Applicant’s own evidence to the Tribunal (the transcript of what occurred at the Tribunal was before me) which was that he had not had extensive engagements with professionals, and had seen a psychologist once. Given these matters, the Applicant submitted that the Tribunal had made a finding of fact in the absence of any evidence, and that constituted jurisdictional error. It was also submitted by the Applicant that the error was compounded because the Tribunal did not put to the Applicant that his failure to seek treatment for mental health, anger management, and substance abuse was to be a critical factor that enlivened both the discretion to exercise the power in section 116(1)(e) of the Act, and that weighed heavily in favour of its discretion.
Critical to resolving the present issue is what the Tribunal meant when it stated at paragraph [76] of its Reasons that the Applicant had ‘numerous engagements with professionals including during his youth’. The Applicant’s contention that this was a reference to persons providing support services within the criminal justice system is said to be supported contextually by the fact that the Tribunal in reaching its conclusion referred to the Applicant only seeing a psychologist once (at [48]), and the reference by the Tribunal in paragraph [55] that the Applicant had made limited efforts to break with his past.
I have considered these submissions closely. There is no doubt that the use of the word ‘professionals’ by the Tribunal is apt to cause some confusion. I am not persuaded, however, that read in context and fairly, the reference by the Tribunal to engagements with professionals is limited in the manner contended for by the Applicant. In this respect, it is relevant to note the following.
First, the Applicant has had various dealings with others throughout his life. This is a matter that was addressed by the delegate in the delegate’s decision. The delegate expressly noted that ‘The visa holder’s offending does not appear to be restricted by his numerous dealings with Victoria Police, family violence interventions, community corrections orders or by bail conditions’.
The point above was a point picked up by the Tribunal at paragraph [52] of its Reasons, and expressed in a similar way. I have referred to the relevant passage from paragraph [52] of the Tribunal’s Reasons earlier.
The matters I have referred to above provide significant context when considering what the Tribunal meant in paragraph [76] of its Reasons. In my view, when read fairly, and in context, there is no reason to limit the reference to ‘numerous engagements with professionals’ to those professionals identified by the Applicant, being his visit to a psychologist. The better view is that the statement by the Tribunal refers to the numerous interactions the Applicant has had with others throughout his life. That conclusion is supported, in my view, by the matters I have referred to above. The expressions used, and sentiments expressed in paragraph [76] of the Reasons reflect what the delegate was referring to at Court Book (‘CB’) 107, and what the Tribunal itself referred to at paragraph [52] of the Reasons. Those paragraphs refer to the Applicant’s history of offending. They refer to numerous interactions with other parties throughout the course of the Applicant’s life. They refer to the fact that the Applicant has continued to put others at risk.
It is then necessary to consider the other submission advanced by the Applicant. That submission was that the Tribunal considered that the Applicant’s failure to seek treatment for mental health, anger management, and substance abuse was a critical factor in its decision, yet at no time did the Tribunal specifically put that proposition to him. I accept the Tribunal member made what can only be described as a brief enquiry as to whether the Applicant had seen a psychologist. The Applicant’s contention was that this inquiry fell well short of the disclosure required to satisfy the principle articulated by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32], and in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592. There is not any dispute that the principles referred to in these decisions apply in the present matter.
The Tribunal was, of course, reviewing afresh a decision of the delegate. The delegate identified that the issue before the delegate was whether the visa should be cancelled pursuant to the power contained within section 116(1)(e) of the Act. In approaching its task, the delegate considered, among other things, the Applicant’s criminal history, and the charges pending against him. As part of the consideration, the delegate also considered the following:
(a)that the Applicant’s offending did not appear to be restricted by his numerous dealings with Victoria Police, family violence interventions, community corrections orders or by bail conditions (CB 107);
(b)that the Applicant had numerous dealings with these persons or situations, and that those dealings ‘are not reducing the frequency of his offending’ (CB 109); and
(c)that the Applicant had not responded to the Notice or provided any information that mitigates the grounds or reasons for cancellation. This in turn caused the delegate to state ‘I do not consider the circumstances to be outside his control’ (CB 111).
It can be seen from what I have set out that in deciding the matter before it (whether grounds existed to exercise the power in section 116 of the Act), the delegate gave consideration to the risk of the Applicant re-offending.
The Tribunal identified at paragraphs [24]-[27] of its Reasons the issue before it being whether it could be satisfied that the presence of the Applicant in Australia is, or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community or the health or safety of an individual or individuals. In approaching its task, the Tribunal then considered the Applicant’s offending (at paragraphs [27]-[33]), the Applicant’s intention to stop offending (at paragraphs [34]-[44]), and the Applicant’s past, and how it contributed to his offending (at paragraphs [45]-[55]), before considering whether it should exercise its discretion to cancel the visa. Importantly, the Tribunal at [29] explained to the Applicant ‘the material suggests he is or may be an ongoing risk to the community as his offending has continued and escalated, and in addition that the nature of the offending may outweigh all other factors that need to be considered…’. It is plain from the Tribunal’s Reasons that in deciding whether section 116 of the Act was enlivened, it considered the risk of the Applicant re-offending.
The Applicant’s contention is that the finding by the Tribunal that the Applicant had failed to seek treatment for mental health, anger management, and substance abuse was dispositive of his case, and that the issue should have been put to the Applicant. Having considered the issues before the Tribunal, I am unable to accept that submission. The dispositive issue before the Tribunal was not whether the Applicant had failed to seek treatment for mental health, anger management, or substance abuse. Rather, the issue before the Tribunal (as it was before the delegate) was the risk or likelihood of the Applicant re-offending. That this was the issue before the Tribunal can be seen from what I have set out above. It can also be seen from paragraph [53] of the Tribunal’s Reasons. At paragraph [53], the Tribunal considered the Applicant’s past challenges, and whether he was working to mitigate them. In reaching the conclusion that he had not grappled with his past, the Tribunal expressly identified things the Applicant had not done, but might have done, ‘such as seeing a psychologist, undertaking reading and writing lessons, or seeking help to get a licence’. As can be seen, the Tribunal references a broad range of matters, not just the Applicant’s visit to a psychologist. That the issue was the Applicant’s risk of re-offending is underscored by what then follows at paragraphs [76], and [78] of the Reasons. At paragraph [76], the Tribunal, as noted, references not only the long history of the Applicant’s offending, and his numerous engagements with the law, but also notes that he has had opportunities to reflect on his life but has continued for 20 years to put others in the community at risk or in harm. At paragraph [78] the Tribunal once again makes express reference to the ‘choices he made along this pathway’, and his ‘lack of an effort to remedy the situation’. As can be seen from the above, the focus of the Tribunal’s Reasons was not on whether the Applicant had sought treatment for his mental health, anger management, or substance abuse issues, but rather whether he had undertaken a broader range of measures, including treatment, such that his risk of re-offending may be less likely. The Tribunal ultimately concluded that he had not done so.
To the above may be added also the following. First, it was apparent from the decision of the delegate that the likelihood, or risk of the Applicant re-offending was an issue before the Tribunal. Second, it is apparent that the Tribunal went to great lengths to ensure the Applicant was aware of the issues he needed to address. At the directions hearing, the Tribunal explained to the Applicant that it needed to consider ‘whether you pose a risk or may pose a risk to the Australian community. To do that, I will consider all of your criminal offending and anything that has occurred since that letter in 2020’. Third, the Tribunal expressly questioned the Applicant about whether he had seen a psychologist, whether he had anger management problems, and how he had dealt with those anger management problems.
When the above matters are considered, I do not accept the Applicant’s submissions that he was not put on notice that a dispositive issue in the review was his failure to seek treatment for mental health or anger management issues. The critical issue which the Tribunal needed to grapple with, as part of its overarching consideration as to whether section 116 of the Act was enlivened, was whether the Applicant presented a risk of re-offending, or was likely to re-offend. The Applicant was on notice that that was an issue. Moreover, in arriving at its conclusion that the Applicant continued to present a risk, the Tribunal took into account a range of matters that were not limited to the Applicant’s failure to seek treatment for mental health or anger management issues. To require the Tribunal to put the Applicant on notice about any issue to do with his failure to seek treatment for mental health or anger management would be akin to requiring the Tribunal to disclose its thought processes, see: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18].
For all of these reasons, Ground One of the Grounds of Review is dismissed.
Ground 2
The second Ground of Review in the Application is:
3.The Tribunal erred by unreasonably refusing to adjourn the review under s 363(1)(b) of the Migration Act 1958 (Cth).
Particulars
a. The Tribunal noted at [18]-[19] of its reasons that:
The applicant requested on several occasions assistance in finding a lawyer to represent him or additional time to find one himself. Based upon the applicant’s request at the case management hearing for additional time to find a lawyer the Tribunal postponed the hearing until 24 February 2022 [sic].
A further postponement request was made prior to the hearing but rejected it for the reason that it appeared unlikely that the applicant would be able to find representation, his ongoing detention was in of itself a reason to progress the matter and the requirement for the Tribunal to adhere to a wide array of procedural fairness obligations.
b. There was no reason for the Tribunal to infer the Applicant was “unlikely” to find representation and he had indicated his willingness to remain in detention until he was able to do so.
c. Despite repeated attempts, the Tribunal had been unable to obtain relevant documents (including an updated AFP Police Check) from the Department or the Applicant, due to the Applicant’s lack of legal representation and the Applicant’s own illiteracy: see [15] of the Tribunal’s reasons. The Tribunal considered these documents to be “pivotal” to the review: at [16].
d. The kinds of records and evidence the Applicant would likely have been able to obtain, including from State corrections facilities, if he was granted more time to obtain legal representation would likely have been directly relevant to the Tribunal’s critical unsubstantiated assumption referred to in paragraph (c) to the particulars of Ground 1.
e. The Tribunal erroneously proceeded on the basis that it had already granted an adjournment to permit the Applicant time to obtain legal representation, when in fact, only one adjournment request had been made, and it was refused by the Tribunal: cf Tribunal’s reasons at [18]-[19].
f. In the premises, the result bespeaks error, such that the Tribunal’s decision to refuse to grant an adjournment was legally unreasonable and/or had the consequence that the Tribunal failed to discharge its function of deciding whether to grant an adjournment according to law.
Under this Ground of Review, the Applicant contended that in failing to grant the adjournment sought by him, the Tribunal failed to properly weigh the need for efficiency against the purpose of section 360(1) of the Act which is to provide an applicant with an opportunity to present evidence, and arguments relating to the issues arising in relation to the decision under review. The Applicant contended, consistently with the approach taken in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (‘Li’) at [31], that the approach of the Tribunal in this matter revealed a degree of ‘arbitrariness’ which rendered the decision to refuse to adjourn the matter legally unreasonable. In advancing this argument, the Applicant relied on the following:
(a)the Tribunal had been unable to obtain from either the Applicant or the Department, an updated Police Check, and the Applicant was unable to obtain one himself as a direct consequence of his illiteracy, and lack of representation. This, despite the fact that the Tribunal considered those documents would play a ‘pivotal role’ in the proceeding;
(b)the kinds of evidence, and records the Applicant may have been able to obtain from corrections facilities and the like were likely to have been directly relevant to matters the Tribunal needed to consider, including whether the Applicant had numerous engagements with professional support services;
(c)contrary to what it stated at paragraphs [18]-[19] of its Reasons, the Tribunal had not granted any previous postponement of the hearing to permit the Applicant to obtain legal representation; and
(d)in circumstances where the Applicant had requested the adjournment, reliance on his detention as a basis for refusing to postpone the hearing was itself irrational, or illogical.
It is convenient to deal with the last points first.
It was not illogical or irrational for the Tribunal to take into account the Applicant’s detention as a basis for refusing to postpone the hearing. The Applicant’s detention was plainly a relevant factor to consider, it having a direct effect on his liberty.
The Tribunal did use the words ‘postponed’, and ‘postponement’ in its Reasons, and referred to the Applicant’s request for a further postponement. I accept that the Tribunal did not postpone or adjourn any initial hearing. What the Transcript of the directions hearing reveals, however, is that the Tribunal, in setting a date for the review hearing, took into account that the Applicant needed time to find a lawyer. The hearing date was therefore set by the Tribunal with that fact in mind. The hearing date ultimately set by the Tribunal meant that the Applicant had 3.5 months to find a lawyer. In my view, nothing turns on the issue raised by the Applicant. The Tribunal may have referred to previously postponing or adjourning the matter, but what it referred to, not unreasonably, was that the hearing date had already been set to allow time for the Applicant to find a lawyer.
Related to this issue is the criticism made by the Applicant of the Tribunal statement that he would be ‘unlikely’ to find representation. There was a basis for the Tribunal to draw the inference. It had set the date of the hearing in order to allow enough time for the Applicant to obtain a lawyer. He had not done so.
The Applicant refers to records, evidence, and documents he claims he would have been able to obtain with the assistance of legal representation. I accept he may have been able to obtain such documents or records, but there are two issues with that submission. First, it assumes the Applicant would have been able to secure a legal representative who was prepared to act for him. He had been unable to do so, despite being given time to do so. Second, it assumes that such records would have been obtained by the legal representative. There is no certainty any of this would have occurred. This submission by the Applicant is speculative, particularly in circumstances where the hearing date was set to allow sufficient time for the Applicant to obtain a legal representative.
There are two other matters to note about the submission the Applicant now advances. First, the Applicant did not submit to the Tribunal that he needed more time in order to obtain documents such as his Police Check. Second, the Tribunal was acutely aware of the fact that it did not have the Police Check in front of it. At paragraphs [30]-[33] of its Reasons, it summarised the Applicant’s criminal record, questioned him about it, and ultimately accepted his evidence on these matters as being credible.
As I have noted earlier, the Applicant submitted that the decision of the Tribunal to refuse the adjournment should be considered in light of what occurred in Li, and the comments of the High Court in that matter. In Li, the High Court was, among other things, critical of the Tribunal for not properly weighing efficiency against the purpose in section 360 of the Act. Those comments were made in circumstances where an applicant had sought the Tribunal delay its decision following a hearing to enable the applicant to obtain a further skills assessment, and place that assessment before the Tribunal. The Tribunal refused to delay its decision. The High Court ultimately held that the Tribunal’s decision could not stand.
It is important to observe what the Full Court of the Federal Court of Australia said in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Allsop CJ, Robertson and Mortimer JJ) at paragraphs [41] -[42]. Li is not a checklist to be followed. Rather legal unreasonableness is invariably fact dependent, and in any given case, a careful evaluation of the evidence is required.
The facts of this case do not disclose any unreasonableness. The Applicant attended the directions hearing. He asked for time to engage a lawyer. He was given that time – a period of 3.5 months. Despite being given that time, he did not engage a lawyer. It was reasonable for the Tribunal to infer, given the time that had elapsed, that it was unlikely the Applicant would engage legal representation. In seeking the further adjournment, the Applicant said nothing about wanting to obtain the Police check. The circumstances of this matter are different from Li, where the applicant there indicated specifically that she wished to provide a further skills assessment.
For all of the reasons above, I dismiss Ground Two of the Grounds of Review.
CONCLUSION
The Application must be dismissed. The Minister seeks costs of $8,371.30. Given the Applicant has been entirely unsuccessful, I will award the Minister costs in the amount claimed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 16 October 2023
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