David Tuimaseve v Minister
[2017] AATA 413
•31 March 2017
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2016/1304
GENERAL DIVISION )Re:David Tuimaseve
Applicant
And:Minister for Immigration and Border Protection
Respondent
CORRIGENDUM TO DECISION
The Tribunal amends its decision of 31 March 2017 by deleting 2016 and inserting 2017 in the Date shown as the date of the decision.
…[sgd]………..
S A FORGIE
Deputy President
Tuimaseve and Minister for Immigration and Border Protection (Migration) [2017] AATA 413 (31 March 2017)
Division: GENERAL DIVISIONFile Number: 2016/1304
Re: DAVID TUIMASEVE
APPLICANT
And:MINISTER FOR IMMIGRATION AND BORDER PROTECTION
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Senior Member A Nikoliċ
Member A BurkeDate 31 March 2016
Place Melbourne
The Tribunal decides to:
affirm the decision of the respondent dated 17 May 2016 not to revoke the decision dated 3 August 2015 to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
…[sgd] S A Forgie…….
Deputy President
CATCHWORDS – MIGRATION - mandatory cancellation of visa as applicant failed to pass character test due to substantial criminal record - whether discretion to revoke mandatory cancellation of visa should be exercised – decision affirmed
CATCHWORDS – MIGRATION – PRACTICE AND PROCEDURE – administrative review – surveillance material – ongoing obligation imposed by s 38AA of the Administrative Appeals Tribunal Act 1975 – confidentiality application can be made over evidentiary material – application for confidentiality itself to be disclosed, not the material over which application for confidentiality is made and for which confidentiality is sought
LEGISLATION
Administrative Appeals Tribunal 1975 ss 2A, 18B, 33, 35, 37, 38AA, 39
Freedom of Information Act 1982
Judiciary Act 1903 ss 55ZF, 55ZG
Law and Justice Legislation Amendment (No. 1) Act 1995; s 2(1) and s 3(2), Schedule 2, Item 19
Migration Act 1958 ss 499, 501(3A), 501(6), 501(7), 501CA, 501CA(4)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 s 3, Sch 1, Items 13-17; s 2, Items 2 and 3, Item 22(5)Tribunals Amalgamation Act 2015 s 3(1), Sch 1, Item 87
Direction No. 65
Legal Services Direction 2005 cl. 4.2, Appendix B
CASES
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian Postal Corporation v Bessey [2001] FCA 266; 32 AAR 508
Australian Postal Commission v Hayes [1989] FCA 176; (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135; 10 AAR 303
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 286 ALR 501Boyes v Colins [2000] WASCA 344; 32 WAR 123
Brown v Metro Meat International Ltd [2000] WASCA 123
Collins v Military Rehabilitation & Compensation Commission [2005] FCA 1862; 147 FCR 570; 225 ALR 558; 89 ALD 51Comcare v Labathas [1995] FCA 1702; (1995) 61 FCR 149
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Killick v The Queen (1981) 147 CLR 565
Kingham v Cole [2002] FCA 45; 118 FCR 289
Morton v Colonial Mutual Life Assurance Society Limited [2013] FCA 681
Proprietary Trade Association v Attorney-General for Canada [1931] AC 310
R v Jerome and McMahon [1964] Qd R 595
R v Maxwell (1996) 184 CLR 501
Ramsay v Australian Postal Commission [2005] FCA 640; (2005) 147 FCR 39
S v Recorder of Manchester [1971] AC 481
Shaw v The Queen (1952) 85 CLR 365
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re Williams and Australian Electoral Commission and The Greens [1995] AATA 160; (1995) 38 ALD 366OTHER MATERIAL
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
Practice Direction – Lodgement of Documents under Sections 37 and 38AA of the AAT Act of President Duncan Kerr J dated 30 June 2015
REASONS FOR DECISION
On 3 August 2015, a delegate of the Minister of Immigration and Border Patrol (Minister) revoked Mr David Tuimaseve’s Class TY Subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act 1958 (Migration Act). The basis of the Minister’s decision was that Mr Tuimaseve did not pass the character test as he had a substantial criminal record as a result of his having been sentenced to a term of imprisonment of 12 months or more. Mr Tuimaseve applied under s 501CA(4) for the revocation of that decision but another delegate of the Minister decided on 26 February 2016 to refuse his application. A differently constituted Tribunal heard Mr Tuimaseve’s application for review of that decision. It affirmed the Minister’s decision on 17 May 2016 but, when Mr Tuimaseve appealed to the Federal Court against that decision, the appeal was allowed by consent. Justice Moshinsky quashed the Tribunal’s decision by an order dated 24 August 2016 and remitted the matter to determine Mr Tuimaseve’s application according to law. We have decided to affirm the decision to refuse to revoke the cancellation of Mr Tuimaseve’s visa.
BACKGROUND
Mr Tuimaseve was born on 27 October 1991 in New Zealand where he was the youngest of three children born to Mr Posese Tuimaseve and Mrs Fiaese Tuimaseve. Mr and Mrs Tuimaseve had moved to New Zealand from Samoa at some earlier time. Their eldest child is his sister, Ms Sina Tuimaseve, and Mr Jonathan Tuimaseve is their middle child. The family left New Zealand in 2001 to come to Australia when Mr Tuimsave was nine years of age.
Mr Tuimaseve enjoyed science and maths at school. He also found that he had strong practical skills and enjoyed building and physical education. After completing secondary school, Mr Tuimaseve obtained an apprenticeship and holds a Certificate II in plastering.
Mr Tuimaseve’s parents suffer from a range of serious ailments. His mother’s include unstable diabetes, kidney disease, chronic back pain, hypertension, depression, hypercholesterolaemia and gout. Mr Tuimaseve’s father has undergone two heart operations and continues to suffer from diabetes and hypertension.
CONVICTIONS
Mr Tuimaseve has been convicted of the following offences on the following dates. The date on which the offence was committed is also shown.
Court
Date of Conviction
(Date of Offence)
Offence
Court Result
Melbourne Magistrates’ Court
29 February 2012
1. Intentionally Cause Injury
2. Affray
On both charges: convicted. Community Correction Order for 12 months. To perform 100 hours of community work.
Moorabbin Magistrates’ Court
19 April 2012
1. Recklessly Cause Injury
Convicted. Community Correction Order for 12 months. To perform 100 hours of community work.
Dandenong Magistrates’ Court
17 July 2014
(18 January 2014)
1. Recklessly Cause Serious Injury
Imprisonment 15 months
2. Recklessly Cause Injury
Imprisonment 10 months, 5 months to be served concurrently
3. Act As A Security Guard Without Licence
Convicted. Fined $750
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
“The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.”
Section 501(6) sets out eleven sets of circumstances in which a person does not pass the character test. The first, set out in s 501(6)(a), is that the person has a substantial criminal record as defined by s 501(7). Section 501(7) sets out six sets of circumstances in which a person is taken to have a substantial criminal record. Only s 501(7)(c) is relevant in this case. It provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”. As Mr Tuimaseve was sentenced to a term of 15 months’ imprisonment on being convicted of an offence of Recklessly Cause Serious Injury, he has a substantial criminal record by virtue of that provision.
Section 501CA is relevant if the Minister has made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[1] Section 501CA(4) provides that:
“The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.”
[1] Migration Act; s 501CA(1)
In representations made on his behalf by his then migration agent on 30 October 2015, Mr Tuimaseve sought revocation of the Minister’s decision. He did so in accordance with the invitation extended to him under s 501CA(3)(b)[2] and has satisfied the requirements of s 501CA(4)(a). In the circumstances of this case, Mr Tuimaseve cannot rely on the provisions of s 501CA(4)(b)(i) as he cannot pass the character test set out in s 501(7). That follows from the fact that he had been sentenced to a term of imprisonment of 12 months or more. The only relevant provision is that in s 501CA(4)(b)(ii), which asks us to consider whether “… there is another reason why the original decision should be revoked.” The way in which we are to consider this issue was addressed by North ACJ in Gaspar v Minister for Immigration and Border Protection:[3]
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[4]
[2] The Minister is obliged to extend that invitation to him after making a decision under s 501(3A).
[3] [2016] FCA 1166
[4] [2016] FCA 1166 at [38]
REASONS FOR ADMITTING THE DVD OF CCTV RECORDING OF INCIDENT AT CHRISTMAS ISLAND
It is common ground that, before the first day of the current hearing, the Minister had not produced either to Mr Tuimaseve or to the Tribunal a DVD of the CCTV recording taken of the incident in which Mr Tuimaseve was involved at the Norh West Point Immigration Reception and Processing Centre (Christmas Island) on 20 July 2016. Mr Aleksov, of counsel, objected to the DVD’s being admitted in evidence when Ms Helsdon, lawyer representing the respondent, sought to put it to Mr Tuimaseve and to tender it. We decided to admit it and to adjourn the matter so that Mr Tuimaseve could view the DVD and give instructions. As requested by Mr Aleksov, we now set out our reasons for doing so.
The course of events and submissions
Ms Helsdon sought to rely on the DVD at the hearing on 19 January 2017. She did so at a point during the course of her cross-examination of Mr Tuimaseve but not as part of her cross-examination. She raised it in this way:
“… I didn’t intend to tender this and I haven’t advised my friend of this at all but I have a copy of the CCTV footage from the incident that occurred in the detention centre and so my friend may object to me tendering that but I think that it should be before the tribunal.”[5]
[5] Transcript (19 January 2017) at 55
Mr Aleksov objected to her doing so on grounds to which we will return. After initially retracting her tender of the DVD, Ms Helsdon subsequently pressed its tender submitting:
“… the Minister initially did not intend to rely on the CCTV footage, because of the way that the matter is outlined in the Serco report. However, the evidence which has come out this morning suggests that, for the tribunal to be fully aware of the incident and to be fully appraised of the facts, that this footage should be before the tribunal. The Minister, therefore, in order to make it procedurally fair, seeks an adjournment to enable the applicant to consider the footage and consider how that would impact on their case, and that is the basis for our adjournment. …”[6]
[6] Transcript (19 January 2017) at 57
Mr Aleksov objected to the DVD’s being admitted in evidence on several grounds. One was that he had completed his examination in chief of Mr Tuimaseve on the best evidence that was available to him at the time. That evidence had not included the DVD as the Minister’s Department had not provided it to his client. Mr Aleksov developed his objection on three fronts. One concern related to the preparation of his case:
“… [I]t would seem to be a clear example of unreasonable forensic behaviour by the Minister, in that they had this document a long time ago, and they have just given it to us. It also seems forensic decisions were made not to use the document – the document in the CCTV footage. I haven’t seen the document, I haven’t reviewed the footage, but I can observe as a practitioner with some experience, that when one prepares their case, when one gives advice, when one develops a case theory, when one develops their questions in examination-in-chief, one does so based on an understanding of the case for them and against them. It is essentially, then, put by the Minister now that there is an additional piece of evidence, effectively, against us. That will precipitate a need for us to make an application to reconstitute the tribunal, because a case theory that we’ve developed – if it is true, if the Minister’s identification of something in that is actually against us, there will have to be a reconstitution of the tribunal.
…
I heard and I understand it that the Minister had this last week and that there was a forensic decision made not to rely on it. Because of that forensic decision, it wasn’t provided to us. Perhaps that was not the best decision to have been made by the Minister at that stage, but having made that decision, now choosing to flip flop on that is, with respect, not something that the Tribunal should entertain.”[7]
[7] Transcript (19 January 2017) at 60
Implicit in his submissions on this point was Mr Aleksov’s second submission. Production of the DVD of the CCTV footage during the hearing breached the rules of procedural fairness. The Minister should have given a copy to Mr Tuimaseve at an earlier stage if he was acting in accordance with those rules. His Department did not provide it even though Mr Tuimaseve had made requests for access under the Freedom of Information Act 1982 (FOI Act). Had Mr Tuimaseve seen the CCTV footage before giving his evidence in chief, it might have jogged his memory and he might have remembered the incident more clearly.
Mr Aleksov’s third submissions centred on Mr Tuimaseve’s having made a further statement after viewing the footage and correcting certain aspects of his previous statement. In view of that further statement, Mr Aleksov continued, it was unnecessary for us to view the DVD and, furthermore, we should not have done so. There is a very real risk of our forming a view as to the accuracy of Mr Tuimaseve’s recall of events and allowing that view to undermine our assessment of his ability to be trusted to lead a law-abiding life if permitted to live in Australia.
The fourth basis of Mr Aleksov’s submission is that Mr Tuimaseve suffered extraordinary prejudice by the production of the CCTV footage after the hearing had commenced. It was a prejudice that could not be remedied by our granting an adjournment to give Mr Tuimaseve an opportunity to view the DVD. The prejudice was in the form of costs to him and in the form of his remaining in immigration detention for a further period. Mr Tuimaseve had also suffered a forensic disadvantage because his counsel had not been able to develop his case theory with the benefit of all of the evidence.
The fifth basis is that the Minister made a strategic decision not to produce the DVD of the CCTV footage and to proceed without it. This engages the principles of Aon Risk Services Australia Ltd v Australian National University[8] and the Minister cannot be allowed the liberty of changing tactics because it has become convenient to do so. He cannot be permitted to do so on an argument that he has to be accorded procedural fairness. His choices were made and he cannot be heard to complain about the outcome of his choices. An analogy can be made with criminal jurisprudence, Mr Aleksov continued. Both criminal proceedings and the proceedings in this case both lead to serious consequences. Therefore, he submitted, the Tribunal might be informed by knowing that the discretion of a trial judge to call further evidence after evidence has been given for the defence should only be exercised in very special or exceptional circumstances. Generally speaking, Mr Aleksov submitted, the discretion should not be exercised if the occasion for calling further evidence ought reasonably to have been foreseen: Shaw v The Queen[9] and Killick v The Queen.[10]
[8] (2009) 239 CLR 175
[9] (1952) 85 CLR 365 at 378-380 and 383-384
[10] (1981) 147 CLR 565 at 568-571 and 575-576
The sixth basis on which Mr Aleksov advanced his submission was that of the Legal Services Direction 2005 (LSD). The Minister is in breach of his obligations under the LSD as well as under s 33 of the Administrative Appeals Tribunal Act 1975 (AAT Act). He has attempted to give himself an advantage and to ambush Mr Tuimaseve. It is not enough to call upon the Tribunal to deprecate the Minister’s conduct. The Minister must be seen to suffer real and adverse consequences for his action in failing to produce the DVD before the hearing.
Legal Services Direction 2005 and section 33 of the AAT Act
We will begin with s 33 of the AAT Act. Section 33(1AB) imposes an obligation on a party to a proceeding before the Tribunal, and his or her representative, to use best endeavours to assist the Tribunal to fulfil its objective under s 2A. Section 2A provides that:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.”
Clause 4.2 of the LSD requires claims to be handled and litigation is to be conducted by the agency in accordance with the Directions on The Commonwealth’s Obligation to Act as a Model Litigant at Appendix B. Before setting out specific ways in which it can meet its obligation, cl 2 of Appendix B sets out the general principle that:
“The obligation to act as a model litigant requires that the Commonwealth and its agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or an agency …”.
The LSD is made under s 55ZF of the Judiciary Act 1903 (Judiciary Act). Compliance with the LSD is not enforceable except by, or upon application of, the Attorney-General.[11] Of greater relevance in this case is s 55ZG(3), which provides:
“The issue of non-compliance with a Legal Services Direction may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth.”
[11] Judiciary Act; s 55ZG(2)
In Australian Securities and Investments Commission v Hellicar,[12] the High Court considered a conclusion by the New South Wales of Court of Appeal that the Australian Securities and Investments Commission (ASIC) had an obligation to call a particular witness in the case. As it had not done so, its failure meant more than a disinclination to draw inferences favourable to ASIC’s case. It counted against satisfaction on the balance of probabilities. The High Court rejected that reasoning. In a separate judgment, Heydon J did so saying:
“… The Commonwealth has the same rights as any other litigant. … It has the same powers to enforce those rights. … That is so whether the Commonwealth is suing or being sued. And is so even where, as here, no other person could have brought the proceedings. … Nothing in the Legal Services Directionssuggests that the Commonwealth’s obligations as a model litigant extend to the question of which witnesses it should call. And nothing suggests that if the Commonwealth fails to call a particular witness, the evidentiary consequences are those that the Court of Appeal’s reasoning contemplated. The Solicitor-General of the Commonwealth correctly submitted that the duty to act as a model litigant requires the Commonwealth and its agencies, as parties to litigation, to act fairly, with complete propriety and in accordance with the highest professional standards, but within the same procedural rules as govern all litigants. But the procedural rules are not modified against model litigants — they apply uniformly.”[13]
[12] [2012] HCA 17; (2012) 286 ALR 501; French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ
[13] [2012] HCA 17; (2012) 286 ALR 501 at [240]; 561 and see also [147]-[155]; 539-541 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ regarding the issue more generally and rejecting the notion of discounting the weight to be accorded to inferences drawn from other evidence.
The principle is equally applicable in this Tribunal. The Minister is subject to the same procedural rules as other parties in the Tribunal and the LSD does not alter or vary his obligation as a party in a proceeding. Part of his duty is to comply with s 33(1AB) but that duty must be seen in the context of the other duties imposed on him by the AAT Act and the nature of the Tribunal’s task to reach the correct or preferable decision before its parameters can begin to be drawn. We will return to this below.
Freedom of Information Request
Mr Aleksov’s submitted that the Minister’s Department had not produced the DVD in response to a request Mr Tuimaseve had made to the Department of Immigration and Border Protection (DIBP) under the FOI Act for access to:
“… a full copy of all documents relating to Mr Tuimaseve’s s 501 cancelation [sic] including but not limited to file notes, recordings, interviews, documents from the Tribunal or Federal Court level and any documents relating to the location of Mr Tuimaseve within the detention network.”[14]
[14] Exhibit H
In a letter dated 22 November 2016, an officer of the DIBP acknowledged Mr Tuimaseve’s request. She advised that the statutory time limit for processing requests made under the FOI Act was 30 calendar days but that, although the DIMBP endeavoured to meet that time limit, it was not practicable to do so at that time. Mr Tuimaseve’s request would be processed in the order in which it was received and it was not possible to give an exact date for the finalisation of his request.[15] In the course of the hearing, Mr Aleksov indicated that some 1,200 documents had ultimately been received from the DIBP in response to the request. A copy of the DVD was not among those documents and nor was reference made to a DVD in refusing access to any document. Mr Aleksov seemed to draw a conclusion from that situation that a recording did not exist.
[15] Exhibit I
We have not seen the letter advising of the decision made on Mr Tuimaseve’s request and so do not know whether exemptions were claimed. As far as we know, an application for review of the decision made on behalf of the DIMBP has not been made to the Information Commissioner or then to this Tribunal. If it had been, one of the issues might well have centred on the scope of the documents described. On its face, the request is limited to two classes of documents: those relating to the cancellation of Mr Tuimaseve’s visa under the Migration Act; and those “relating to the location of Mr Tuimaseve within the detention network.” The meanings of the word “location” include “a position or situation. … the act of locating or the process of being located …”.[16] Arguably that would mean that the second class of documents includes those relating to decisions whether to locate Mr Tuimaseve at, for example, the Maribyrnong Immigration Detention Centre or at the Christmas Island Detention Centre. If that were correct, it would not encompass the DVD of CCTV footage of an incident happening at one location or another.
[16] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
It is clear from the documents in Exhibit A, which are a selection of documents to which the DIBP gave access to Mr Tuimaseve, that some, at least, go beyond those relating to mere location. They include documents that relate to matters such as his progress as well as to his personal details and assessment tools. Even if the range of documents to which access was given is wider than that suggested by a strict reading of the request, we do not think that it can be inferred from DIBP’s failure to mention a DVD in its response to Mr Tuimaseve’s request that there was no such DVD. An Incident Detail Report might, as we have indicated, be thought to lie outside the scope of the request.
We also note that the Incident Detail Report provides a space for the CCTV Recording Number. Although a number is not recorded, the location clearly is. Even without a number, the format of the Incident Detail Report could be regarded as an indicator that there might be CCTV footage available. These sorts of matters would have been explored had an application been made in the first instance for internal review of the decision by the DIBP under Part VI of the FOI Act.
We can understand that a party to the proceeding in the Tribunal might think to rely on the FOI Act to obtain relevant documents and to do so because it appears to be a cheap option. There are, however, traps in taking this course. One trap lies in the drafting of the scope of the request to ensure that it matches the parameters of what is relevant to the substantive application before the Tribunal. Another trap lies in the exemptions that can be claimed under the FOI Act. Some of the exemptions set out in Part IV of the FOI Act are based on public immunity principles and a Commonwealth agency or Minister would not be required either to grant access to documents coming within their scope under the FOI Act or to produce them to this Tribunal. There are other exemptions, though, where exemption might be claimed by an agency or a Minister under the FOI Act in response to a request but that same agency or Minister would be required to produce them in response to a direction made by the Tribunal or in response to obligations imposed by s 37 of the AAT Act. Furthermore, the Minister would be required to produce those documents within the time limit specified by the Tribunal. That is likely to be a much shorter period than that provided for under the FOI Act and particularly so if the person requesting the documents is not satisfied with the initial decision on his or her request.
Administrative Appeals Tribunal Act 1975
A. Obligations under ss 37 and 38AA of the AAT Act
That brings us to the Minister’s obligations to produce documents and evidentiary material such as the DVD. What we have to say in this section of our reasons has currency for decisions made under s 501CA(4) before 23 February 2017 but not for those made on or after that date. That is the day on which the amendments made to s 500 of the Migration Act by the Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (MACCCP Act) come into effect.[17] After that date, amendments made to ss 500(6D) and (6F) of the Migration Act will mean that the provisions of ss 37 and 38AA of the AAT Act will not apply to applications for review of decisions made under s 501CA(4).[18]
[17] MACCCP Act; s 3 and Schedule 1, Items 13-17
[18] MACCCP Act; s 2, Item 2 and s 3, Item 22(5)
Section 37 of the AAT Act imposes certain obligations on the person who made the decision to lodge certain documents with the Tribunal. As well as a statement setting out the decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons, those documents include every other document that is in the person’s possession or under the person’s control and is relevant to the Tribunal’s review of the decision. The general obligation is found in s 37(1) and it applies notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.[19] Generally, the decision-maker must also give those documents to other parties to the proceeding.[20] The decision-maker must comply with the obligation imposed by s 37 within 28 days or within any further period the Tribunal may allow.[21]
[19] AAT Act; s 37(3)
[20] AAT Act; s 37(1AE)
[21] AAT Act; ss 37(1), (1AE) and (1A)
B. Application of provisions to DVD of CCTV footage
The DVD of the CCTV footage would not have come within the range of documents to which s 37(1) applies for the events it records had yet to occur. They occurred after the documents were lodged on 1 April 2016. That is not to say that the DVD should not have been lodged at a later date when it did come into the possession of the Minister’s Department. It was obliged to lodge it under s 38AA of the AAT Act. The effect of that section is that the obligation under s 37(1) is ongoing. The obligation is that:
“at any time after the end of the applicable period under the subsection and before the Tribunal determines the review:
(i) the person obtains possession of a document; and
(ii) the document is relevant to the review; and
(iii)a copy of the document has not been lodged with the Tribunal in accordance with the subsection;
the person must, subject to any directions given under section 18B, lodge a copy of the document with the Tribunal as soon as practicable after obtaining possession.”[22]
[22] AAT Act; s 38AA(1)
As Mr Aleksov submitted, the Minister was in possession of the CCTV footage at some time in the week before the first day of the hearing or at least before its resumption. The events it depicted had occurred on 20 July 2016. Generally, the Minister’s obligation under s 38AA(1) was to lodge the DVD “as soon as practicable after obtaining possession” of it and to give a copy to Mr Tuimaseve. Therefore, the date on which it came into the possession of the Minister’s Department is relevant in determining when his obligation to lodge the DVD with the Tribunal would have arisen. We are not in a position to know when that date was.
Putting aside whether the Minister had, or had not, complied with his obligations under ss 37(1) or 38AA(1), we note that the Minister would not necessarily have been obliged to give Mr Tuimaseve a copy of the DVD had he followed the procedure set out in s 37(1AF) of the AAT Act. Section 37(1AF) provides for circumstances in which a person otherwise obliged to lodge a document under s 37(1)(b) or s 38AA(1)[23] is not required to lodge that document with the Tribunal. If, within the 28 day time limit provided by ss 37(1)(b) or 38AA(1) or any extension of that period:
“… the person:
(i)applies to the Tribunal for a direction under subsection 35(3) or (4) in relation to the document and lodges with the Tribunal, together with the application for the direction, a copy of the document; and
(ii)gives a copy of the application for the direction to each party to the application for review;
the person is not required to comply with paragraph (1)(b) or subsection (1AAB) in relation to the document unless and until the Tribunal, after hearing the application for the direction, directs the person to do so.”
[23] AAT Act; s 38AA(2)
Section 35(3) confers power on the Tribunal to give directions prohibiting or restricting the publication or disclosure of information tending to reveal the identity of a party or a witness to a proceeding, of a person related or otherwise associated with a party or a witness or otherwise concerning a witness or a party. Section 35(4) provides that:
“The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a) relates to the proceeding; and
(b) is any of the following:
(i) information that comprises evidence or information about evidence;
(ii) information lodged with or otherwise given to the Tribunal.”
Although we do not regard CCTV footage as a video surveillance video, we note that, in a Direction[24] made under s 18B of the AAT Act on 30 June 2015, the President directed at [2.13] that:
“ If video surveillance material is in the possession of, or under the control of, a decision-maker and is relevant to the review of the decision, the decision-maker must lodge a copy of that material with us.”
[24] Practice Direction – Lodgement of Documents under Sections 37 and 38AA of the AAT Act dated 30 June 2015 by President Kerr J
This passage is expanded upon later in the Direction:
“9.4 Subject to any other direction or order we may make, if a decision-maker intends to rely on video surveillance material at the hearing of an application and that material has not already been lodged with us and given to any other party, the decision-maker must give a copy of the material to us and to any other party at least 28 days before the day on which the hearing is listed to commence.
9.5 If video surveillance material has not been given to us and any other party prior to the hearing in accordance with this Direction, or such other direction or order that we may make, the decision-maker may not rely on the material as evidence in the application without the leave of the AAT.
9.6 We will not make a direction under section 35 in respect of video surveillance material unless there is a persuasive reason, in the particular circumstances of an individual case, which requires us to make such a direction. The fact that the credibility of another party may be in issue will not, of itself, be a sufficient reason to make such a direction.”
The Direction does not refer specifically to the procedure set out in s 37(1AF) in relation to video surveillance material but does state at [3.1] that:
“In accordance with subsection 37(1AF), a decision-maker may apply for a direction under section 35 of the AAT Act that all or part of the contents of one or more of the Section 37 documents not be disclosed to the applicant or another party.”
That clause must apply equally to video surveillance material for the Direction cannot override the AAT Act except to the extent permitted by s 18B.
C.Previous Federal Court authorities
A Direction made under s 18B cannot override the interpretation of the AAT Act by the Federal Court[25] but there is a very real question whether those Federal Court authorities remain relevant or whether their application must be modified or be of a more limited application in view of more recent amendments to the AAT Act. We will set them out and return to their relevance at a later time.
[25] “… It is plain that a practice directioncannot confer on the AAT a power which it does not otherwise have under the Act, or under authority conferred by statute: see Comcare v Labathas [1995] FCA 1702; (1995) 61 FCR 149 at 154. See also Re Murray [and Repatriation Commission [1998] AATA 631] at [22] where Senior Member Lewis cites Re Williams and Australian Electoral Commission and The Greens [1995] AATA 160; (1995) 38 ALD 366 at 373.”: Collins v Military Rehabilitation & Compensation Commission [2005] FCA 1862; 147 FCR 570; 225 ALR 558; 89 ALD 51 at [27]; 578; 566; 58 per Jacobson J
The circumstances in which a party must reveal video surveillance material to the other party was considered by Wilcox J in Australian Postal Commission v Hayes[26] (Hayes). Senior Member Hayes had directed the Australian Postal Commission (APC) to screen a video of Ms Barnbrooke’s activities before she gave evidence in chief in support of her claim for compensation. The APC had intended to screen it following her evidence and before it commenced cross-examination.
[26] [1989] FCA 176; (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135; 10 AAR 303
In deciding the issue, Wilcox J began by stating that the Tribunal is bound to accord the parties procedural fairness. An essential ingredient of procedural fairness is the opportunity of presenting one’s case.
“… In Sullivan v Department of Transport (1978) 20 ALR 323 at 342 Deane J expressed the view that s 39 of the Administrative Appeals Tribunal Act ‘constitutes statutory recognition of an obligation which the law would, in any event, imply. Where a tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe.’’’[27]
[27] [1989] FCA 176; (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135; 10 AAR 303 at 326; 288-289; 140; 309
Counsel for the APC submitted that testing of opposing relevant material by cross-examination is a relevant feature of the opportunity to correct or contradict that material. To fetter cross-examination so that a witness’s evidence cannot be properly tested is to deny procedural fairness. The case of Hayes involved a dispute about the existence of a physical disability whose existence could not be determined by objective independent evidence and in relation to which Ms Barnbrooke’s description of her symptoms and the acceptance of her description or otherwise was likely to be crucial in the resolution of the case.
Wilcox J accepted the submission saying:
“… It is the everyday experience of those who attend courts that cross-examination is at its most effective when the evidence of a witness is able to be confronted by documents. But, as with any other cross-examination, it is normally necessary for the cross-examiner first to have the witness commit himself or herself to a precise version of relevant matters; the process which the late Smyth QC called ‘closing the gates’: see ‘The Art of Cross Examination’ (Autumn 1988) Bar News at 12-13. It is important, in that process, that a mendacious witness not be aware of the material available to the cross-examiner to contradict the evidence under manufacture.
In writing the above, I make no assumption as to the veracity or otherwise of Ms Barnbrooke. That is a matter to be determined by the tribunal, not by this court. I simply observe that to deny the cross-examiner the opportunity of having Ms Barnbrooke commit herself to a version of relevant facts is to deny the right fully to test her evidence; and, therefore, to deny the Commission a reasonable opportunity of presenting its case.”[28]
[28] [1989] FCA 176; (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135; 10 AAR 303 at 327; 290; 141; 310
As to any prejudice to Ms Barnbrooke, Wilcox J observed that he could see none.
“… Having regard to the nature of the issue it seems likely that much will depend on the Tribunal’s assessment of Ms Barnbrooke’s credit. If, without the benefit of having first seen the film, she gives evidence which is consistent with the film, or if, after that evidence, counsel for the Commission chooses not to tender the film, Ms Barnbrooke’s credit can only be enhanced. It seems to me that, if she gives accurate evidence, Ms Barnbrooke has nothing to fear from the film. If she were to be tempted to give false evidence, she may have something to fear; but a course which is likely to expose falsehood cannot be properly be described as prejudicial.”[29]
[29] [1989] FCA 176; (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135; 10 AAR 303 at 327; 290; 141; 310
Since Hayes was decided in 1979, s 37 of the AAT Act has undergone some amendments. We refer, for example, to the addition of the requirement not only to lodge but to give the documents to the other party or parties. That was a requirement that did not appear in s 37 when Hayes was decided. It was a requirement when Ramsay v Australian Postal Commission[30] was decided and, by that time, provisions such as s 37(1AF) had been added to s 37. The principle that there is an obligation to ensure procedural fairness for all parties was underlined in that case. In Australian Postal Corporation v Bessey,[31] Gyles J observed that the “authorities establish that, absent special circumstances, Australia Post was denied natural justice or procedural fairness at least in not being able to show the video to the respondent in cross-examination and ask questions based upon that”.
[30] [2005] FCA 640; (2005) 147 FCR 39
[31] [2001] FCA 266; 32 AAR 508 at [16]; 512
Other cases have followed Hayes but, in deciding Kingham v Cole,[32] Heerey J declined to do so saying that it:
““appears to elevate a useful forensic technique to the status of a mandatory legal rule binding an administrative decision-maker”.”[33]
[32] [2002] FCA 45; 118 FCR 289
[33] [2002] FCA 45; 118 FCR 289 at [26]; 297
Various authorities both supporting and not supporting the approach taken in Hayes were considered by Flick J in Morton v Colonial Mutual Life Assurance Society Limited.[34] He concluded that the principles set out by Ipp J in Boyes v Colins[35] were equally applicable to the proceedings before him. Flick J summarised them as:
[34] [2013] FCA 681
[35] [2000] WASCA 344; 23 WAR 123
“· the potential for plaintiffs giving dishonest evidence and the view there expressed that ‘the court should be biased towards disclosure, subject to there being persuasive grounds by reason of the particular circumstances of the individual case to make an order in terms of the rule’: [2000] WASCA 344 at [60]. In doing so, Ipp J referred with approval to the observations of Mathews J in Re Taxation Appeals NT 94/281-291 [1995] AATA 95, 30 ATR 1279 that the situations in which evidence could be withheld would be ‘rare indeed’ and that it ‘would certainly not be sufficient for a party merely to show that the material was capable of contradicting another party’s version, even accepting that the credibility of that other party was critical to the case’;
·the need to take into account the potential unfairness to both parties and not merely the interests of the party seeking to withhold the video surveillance material;
·the fact that the appellant in that case had already committed herself as to the nature and extent of her disabilities;
·the policy that had been pursued by the Supreme Court of Western Australia, and other Courts, which endorsed the practice of parties putting their ‘cards on the table’;
·the fact that it is erroneous to reason that there is an absence of prejudice and that the Court should give no protection to a claimant who has failed to properly and accurately advise her legal advisers as to their physical capabilities;
·the need for consideration to be given to ‘case management and related considerations’; and
·‘unfairness in regard to settlement negotiations’.”[36]
[36] [2013] FCA 681 at [28]
In Boyes v Colins, Ipp J developed each of the principles summarised by Flick J. Of particular relevance in this case is his Honour’s development of his statement that it is erroneous to reason that there is an absence of prejudice and that the Court should give no protection to a claimant who has failed to properly and accurately advise her legal advisers as to their physical capabilities. Ipp J took the view that this type of reasoning was erroneous and referred to a judgment of Wheeler J in Brown v Metro Meat International Ltd[37] where Wheeler J observed (at [23]):
“[D]isclosure of the videotaped material allows the worker and his or her advisers to consider the possibility of settlement without the spectre of some action which is forgotten or able to be innocently explained being produced at trial in a manner which has a disproportionate impact. It is not an answer to this last contention that the worker ‘must know what she/he did’, since very few individuals can recall every action undertaken over the period which usually precedes litigation of this kind ...”.[38]
[37] [2000] WASCA 123
[38] [2000] WASCA 123 at [23]
While we note that more recent authority suggests a move in the general position taken by the Federal Court, we also note that the more recent authority does not address the differences between the task of the Tribunal and that of a court be it the Federal Court or the Supreme Court of a State. Our task is to review administrative decisions on their merits on the evidence and material before us and, in doing so, to arrive at the correct or preferable decision.[39] That is to say, it must reach the decision that is correct in law and on the evidentiary material. If the decision is a discretionary decision there is more than one decision that may be made. Having regard to the legislative framework within which the decision must be made and having regard to the evidentiary material, the decision that we must choose must be the preferable decision of those correct decisions that may be made. Unless changed by a particular legislative context, no party bears a burden of proof to persuade the tribunal which decision should be made.
[39] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 at 589; 68, 419 per Bowen CJ and Deane J
It is clear from the nature of our task that we are not limited in our consideration to the cases pleaded by the parties as a court would be in adversarial proceedings. We are not limited to the case theory of either party. The rules of the criminal court where the prosecutor carries a burden of proof and presents a case against an accused who generally carries no such burden, have no analogy in a merits review tribunal. Our task is to arrive at the correct or preferable decision on the evidence and material before us and not to choose this party’s case or that party’s view of the decision we should make. Provisions such as ss 37 and 38AA support the process that enables us to do that by ensuring that the decision-maker is generally obliged to put all evidentiary material on the table. The Tribunal uses its directions power under s 33 of the AAT Act to ensure that the applicant or other parties are generally under a similar obligation.
Similar powers and practices have been introduced into the courts with an expectation that, like the Tribunal, the evidentiary material will generally be available to the parties before the hearing. That similarity, however, does not alter the different nature of the tasks carried out by the Tribunal and by the courts. Given that essential difference, it seems to us that we are bound by the judgment of Gyles J in Bessey but that we should pay careful regard to the principles enunciated in subsequent authorities in relation to proceedings in the courts as well as subsequent amendments to the AAT Act. We refer particular to the objectives stated in s 2A of the AAT Act. When we do that, it seems to us that we must bear in mind our fundamental duty to ensure that we accord procedural fairness to each of the parties and that, in so far as it is consistent with that duty, we ensure that parties have access to all evidentiary material when it comes to hand.
D. Amendments to the AAT Act re sections 35, 37 and 38AA
These authorities were all decided before s 38AA was inserted in the AAT Act by the Tribunals Amalgamation Act 2015 (TAA).[40] They all related to material obtained after the decision-maker had complied with the obligation to lodge documents relevant to the review of the decision under s 37(1)(b), which, with one or two variations, has been drafted in terms that are broadly consistent throughout. That meant that the decision-maker was not obliged to comply with the requirements of, for example, s 37(1AF) in the AAT Act as that related only to the obligation to lodge documents under s 37 (T-documents) and not to those lodged in accordance with a direction of the Tribunal under s 33 or at the behest of the parties themselves.
[40] TAA; s 3(1), Schedule 1, Item 87
To explain this, we will begin with s 37(1) of the AAT Act which we have referred to at [31] above and we note that s 37(1AAB) makes similar provision when the decision under review is of a particular sort in the social security jurisdiction.
Section 37(1AE), which was inserted with effect from 16 December 1995,[41] provides that:
“A person who is required under subsection (1), (1AAB) or (1AB) to lodge a copy of a statement or document with the Tribunal within a particular period must, unless the Tribunal directs otherwise, also give a copy of the statement or document to each other party to the proceeding, within the same period.”
[41] Law and Justice Legislation Amendment (No. 1) Act 1995; s 2(1) and s 3(2), Schedule 2, Item 19
Section 37(1AF) was also inserted with effect from 16 December 1995[42] and provides:
[42] Law and Justice Legislation Amendment (No. 1) Act 1995; s 2(1) and s 3(2), Schedule 2, Item 19
“If:
(a)a person who has made a decision that is the subject of an application for a review by the Tribunal would, apart from this subsection, be required under paragraph (1)(b) or subsection (1AAB) to lodge a copy of a document with the Tribunal in respect of the application; and
(b)within the period applicable under subsection (1) the person:
(i)applies to the Tribunal for a direction under subsection 35(3) or (4) in relation to the document and lodges with the Tribunal, together with the application for the direction, a copy of the document; and
(ii)gives a copy of the application for the direction to each party to the application for review;
the person is not required to comply with paragraph (1)(b) or subsection (1AAB) in relation to the document unless and until the Tribunal, after hearing the application for the direction, directs the person to do so.”
That procedure has, and continues to be, regularly followed in relation to T-documents in applications made, for example, under the Freedom of Information Act 1982 where disclosure or otherwise of certain documents is the very point in issue.
In addition to the obligation under s 37, decision-makers were expected, as were all parties, to lodge all material relevant to the resolution of the application for review. That expectation might be underpinned by directions or, in the case of a decision-maker, by the general obligations under the Legal Services Direction. If a decision-maker wished to keep evidentiary material, such as a video recording, from the applicant, he or she could lodge the video recording and apply to the Tribunal for a direction under s 35. If the Tribunal was minded to do so, the application for a direction under s 35 could itself be the subject of a confidentiality order for s 35(2)(c) was broad enough in its terms to permit that to be so. It provided:
“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)…
(b)…
(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.” (emphasis added)
An application for a direction under s 35 was a “document lodged with the Tribunal … in relation to the proceeding” being the application for review. Therefore, a confidentiality order could be made in relation to the application seeking an order in relation to evidentiary material.
From 1 July 2015, amendments made by the TAA changed not only the obligations imposed on decision-makers to lodge material but the Tribunal’s powers in relation to maintaining confidentiality of material lodged with it. Beginning with the lodgement of material, an obligation was imposed on decision-makers in addition to the obligation imposed by s 37(1) to lodge documents within a certain time period assessed by reference to their being notified of an application for review. The additional obligation was set out in s 38AA. Its practical effect is to extend the obligation imposed by s 37(1) so that it becomes an ongoing obligation until the resolution of an application for review. Section 38AA(1) provides:
“If:
(a)subsection 37(1) or (1AAB) applies to a person in relation to an application for review of a decision; and
(b)at any time after the end of the applicable period under the subsection and before the Tribunal determines the review:
(i)the person obtains possession of a document; and
(ii)the document is relevant to the review; and
(iii)a copy of the document has not been lodged with the Tribunal in accordance with the subsection;
the person must, subject to any directions given under section 18B, lodge a copy of the document with the Tribunal as soon as practicable after obtaining possession.”
The DVD in this case would have been a document, to which s 38AA(1) applied so that it had to be lodged with the Tribunal.[43] Section 38AA(2) then imposes an additional obligation. It provides that:
“Subsections 37(1AA), (1AE), (1AF) and (1AG) apply in relation to the requirement in subsection (1) of this section as if:
(a) that requirement were the requirement referred to in those subsections; and
(b)the references in subsections 37(1AE) and (1AF) to lodging or giving within a period were references to lodging or giving as soon as practicable.”
[43] A DVD would be encompassed within the obligation imposed by s 37(1)(b) to lodge with the Tribunal “every other document” coming within its description. The interpretation of the word “document” as encompassing records beyond traditional printed records or pieces of writing would be consistent with its modern interpretation as including files maintained on computer (Chambers) as well as by obligation imposed by s 37(1)(a) to refer to the “evidence or other material” on which a decision-maker’s findings were based.
We note that s 37(1AF) of the AAT Act applies equally to documents that a decision-maker must lodge in the Tribunal either under s 37 or under the continuing obligation imposed by s 38AA.[44] If a decision-maker does not want to disclose a document to the applicant or to another party, s 37(1AF)(b)(i) requires the decision-maker to first lodge a copy of the document with the Tribunal and to apply for a direction under ss 35(3) or (4) in relation to that document. Section 37(1AF)(b)(ii) also requires the decision-maker to:
“give… a copy of the application for the direction to each party to the application for review”.
[44] AAT Act; s 38AA(2)
The relevant provision in s 35 is s 35(4):
“The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i) information that comprises evidence or information about evidence;
(ii) information lodged with or otherwise given to the Tribunal.”
Clearly, s 35(4) is broad enough to encompass the DVD but is it broad enough to encompass an application made under s 35? Such an application is a “proceeding”[45] and it “relates to a proceeding” in the sense that it is an application that relates to an application for review of a decision and such an application is itself a “proceeding”. That means that s 35(4)(a) is met but one or other of the criteria specified in s 35(4)(b) must also be met.
[45] AAT Act; s 3(1)
An application for a direction made by order under s 35 is not “information that comprises evidence or information about evidence” within the meaning of s 35(4)(b)(i) and nor is it “information lodged with or otherwise given to the Tribunal” within the meaning of s 35(4)(b)(ii). The ordinary meaning of the word “information” is “… knowledge gained or given; facts; news. …”.[46] The ordinary meaning of “evidence” is “… information, etc that gives grounds for belief; that which points to, reveals or suggests something. 2 written of spoken testimony used in a court of law. …”.[47] The fact that an application for an order under s 35 has been lodged is information as such but the application itself is more properly described as a “proceeding” than as “information”. In an enactment that uses words such as “proceeding”, “application”, “document”, “submissions” and “case” with care, it seems to us that it would not choose the word “information” as a generic word to include an “application” or a “proceeding”.
[46] Chambers
[47] Chambers
That would mean that the Tribunal does not have power to make an order under s 35(4) giving directions prohibiting or restricting disclosure of information that an application for that order has been made to it. That interpretation is consistent with the obligation that is imposed by s 37(1AF)(b)(ii) to give a copy of the application for the direction under s 35 to each party to the application for review. An obligation of that sort would be at odds with the grant of a power to make an order directing that publication or disclosure of that very application be kept from those other parties. It would be so much at odds that we do not think that Parliament intended that outcome. We are reinforced in our view by a reading of s 18B of the AAT Act. It permits the President to give directions dealing “… with matters relating to the provision of documents under sections 37 and 38AA …”. Sections 37 and 38AA are both concerned with the lodgement and giving of “documents”, which is interpreted broadly in practice. Section 37(1AF)(b) specifically refers to an application for a direction under ss 35(3) or (4) in relation to the document and to the requirement to give a copy of that application to each other party to the application for review. The distinction is made between an “application” and a “document” and, on our understanding, the power given by s 18B to make directions dealing with matters relating to the provision of documents could not be read as extending to a variation of an obligation to give notice of an application for confidentiality under s 35(3) or (4).
E. Effect of amendments to the AAT Act
The amendments made to the AAT Act by the TAA have changed, or at least changed the emphasis of, a tenet of cross-examination as it has applied in the Tribunal. No longer is it possible to keep knowledge of a video recording, DVD or the like until all of the gates have been shut in cross-examination. All that can be kept from an applicant, if the Tribunal decides that it is appropriate to make an order under s 35(4) of the AAT Act, is knowledge of the contents of the document be it a video recording, DVD or the like but not knowledge of the existence of that document. The obligation imposed on the Tribunal under s 39 to ensure that every party to a proceeding is given a reasonable opportunity to present his or her case must be read in light of the changes in the provisions of ss 37 and 38AA and of s 35(4). So too, we respectfully suggest, must the authorities to which we were referred and have referred for they were decided at an earlier time and certainly before the most recent addition of s 38AA and amendments to s 35. Their principles would remain relevant to a consideration of whether an order should be made under s 35 as to disclosure of the contents of a document. They would not extend to a consideration of whether an application for an order under s 35 should be disclosed for, on our view, s 35 does not permit the Tribunal to make such an order in relation to the application for it.
Reasons for granting an adjournment and viewing the DVD
There is no doubt in our minds that the Minister should have lodged the DVD of the CCTV in the Tribunal under s 38AA. Had he wanted to keep it from Mr Tuimaseve and his legal advisers, he should have made the appropriate applications under s 37(1AF) and s 35 of the AAT Act. He should have done so as part of the process of lodging all material relevant to the review of the decision. It cannot be said that the DVD of CCTV footage of an incident in which Mr Tuimaseve was alleged to have been involved is not relevant to the review of the decision. Certainly, Serco has prepared an Incident Report and Mr Tuimaseve has prepared a statement before he viewed the DVD and another statement after. The Incident Report records how Serco officers viewed the CCTV footage. Mr Tuimaseve’s statements set out his memory of events. The only material that depicts events as they occurred within the range of the CCTV camera is the CCTV footage. That seems to us to be material relevant to the review of the Minister’s decision and so too is that of the Serco Incident Report and Mr Tuimaseve’s evidence regarding his recollection of events.
We adjourned the matter so that Mr Tuimaseve could view the CCTV footage and we could hear submissions as to whether we should also view it. In a statement prepared after he had viewed it, Mr Tuimaseve addressed some differences between what he saw and what he wrote in his earlier statement. We do not accept Mr Aleksov’s submission that we should simply accept Mr Tuimaseve’s view of events just as we do not accept that we should simply accept the version in the Serco Incident Report. As we have said, the only objective evidence of events is on the CCTV footage but then only regarding the events within range of the CCTV camera. It is the best evidence of events that it captured. It does not, however, capture all relevant events or what was going through Mr Tuimaseve’s mind or the wider events on Christmas Island that can give context to incidents that are captured.
We do not accept that viewing the DVD of the CCTV footage puts us in a difficult position or that we are influenced in some way by the concessions that Mr Tuimaseve has made. He has made those concessions quite apart from whether we view the DVD or not. If there is a risk that Mr Tuimaseve’s explanation as to why there has been a disparity between his statements is undermined by our viewing the DVD, the risk is no greater than his having changed his statement at all.
As we consider the DVD of the CCTV footage to be the best evidence of the events it depicts and as we adjourned[48] the matter to give Mr Tuimaseve an opportunity to view it and to consider it before answering questions about its contents, we decided to view it. In making that decision, we are not of the view that Mr Tuimaseve is prejudiced. He has always had the Serco Incident Report, which Mr Aleksov acknowledged was made on the basis of CCTV footage. The existence of the CCTV footage has always been known even if it was not produced prior to the hearing.
[48] On the first day of hearing, we note that Mr Aleksov expressed concern about the cost that the adjournment would cause to his client. Although we did not continue with Tuimaseve’s cross-examination on the day, we note that we sat well beyond normal hearing hours to hear as many of his witnesses as possible on that first day. No additional costs were incurred by our adjourning the matter to give Mr Tuimaseve an opportunity to view the DVD of the CCTV footage and to consider his position.
DIRECTION No. 65
Under s 499 of the Migration Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[49] The person or body to whom the directions are given must comply with them[50] but there is one proviso. That is found in s 499(2), which reflects the common law, to the effect that the Minister is not permitted to give directions that would be inconsistent with the Migration Act or with regulations made under it.[51] If he were to do that, it would follow that the person or body is not bound to follow the directions to the extent of the inconsistency.
[49] Migration Act; s 499(1)
[50] Migration Act; s 499(2A)
[51] Migration Act; s 499(2)
The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction No. 65” and applies to the decision made in relation to Mr Tuimaseve’s visa.
Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[52]
[52] Direction No. 65 at [6.1(1)]
The objectives are followed by passages described as “General Guidance” and “Principles”. The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form and pattern and raison d’être. The Principles set out in paragraph 6.3 are:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non‑citizen’s visa should be cancelled, or their visa application refused.”
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
Parts A and B do not apply in this case for they apply, respectively, when a non-citizen’s visa has been cancelled and when his or her application for a visa has been refused. Part C does apply in Mr Tuimaseve’s case for it is directed to revocation requests made in relation to cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[53] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
[53] Direction No. 65 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[54] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[55] I will expand upon the primary and other considerations in the course of considering them.
[54] Direction No. 65 at [8(2)]
[55] Direction No. 65 at [8(4)] and [8(5)]
CONSIDERATION
Part C begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in paragraph 13 of the Direction.
Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is determined.”[56]
[56] Direction No. 65 at [13.1(1)]
That statement makes clear that the persons’ conduct, past and future, is relevant. That is stated expressly in paragraph 13.1(2) when decision-makers are told that they:
“… should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”
A. The nature and seriousness of Mr Tuimaseve’s conduct
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/ or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeat offending;
f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;”.[57]
A.1. When is a “crime committed”?
[57] Section 197A of the Migration Act states that “A detainee must not escape from immigration detention. Penalty: Imprisonment for 5 years.”
Although there is no suggestion that Mr Tuimaseve has escaped from immigration detention, we have set paragraph 13.1.1(1)(h) out in full as its construction is a little confusing. What we think it means is that a crime is serious if it fits into one or other of four categories being a crime committed by a non-citizen: (1) in immigration detention; (2) during an escape from immigration detention; (3) after escape from immigration detention and before being returned to immigration detention; or (4) being the escape from immigration detention itself.
In Mr Tuimaseve’s case, only the first crime identified in paragraph 13.1.1(1)(h) could be relevant for he has never escaped from immigration detention. What is meant by a “crime”? Is conviction required before a non-citizen can be said to have committed a crime? What amounts to a crime is:
“… ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished.”[58]
[58] Proprietary Trade Association v Attorney-General for Canada [1931] AC 310 at 324 The designation in an enactment of prescribed behaviour as a crime or as an offence is important for the mere imposition of a penalty for prescribed behaviour will not characterize that behavior as a crime. The enactment will be a criminal enactment in the former and a penal enactment in the latter.
For the purposes of the criminal law, a person is not convicted of an offence until a court determines his or her guilt and convicts him or her of that offence. That is so even if the person has pleaded guilty to the offence as charged and so confessed to the offence. A court may show that it has made a determination of guilt in a number of ways:
“… The court might do that by imposing a punishment; by discharging a prisoner on his own recognisances; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained. …”[59]
[59] R v Jerome and McMahon [1964] Qd R 595 at 604 and see also R v Maxwell (1996) 184 CLR 501 at 509 per Dawson and McHugh JJ
What is clear is that a simple confession does not mean that a person is guilty of a crime:
“ It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise.”[60]
[60] S v Recorder of Manchester [1971] AC 481 at 488 cited with approval by Dawson and McHugh JJ in R v Maxwell (1996) 184 CLR 501 at 509
It seems to us that, when paragraph 13.1.1(1)(h) refers to a “crime committed”, it is referring to a crime of which a person has been convicted by determination of a court. That is consistent with the structure of Direction 65. Although paragraph 13.1.1 refers to the broader term of “offending” and “offences”, its emphasis is upon offences of which a person has been convicted. That is apparent from the reference “criminal offending” in paragraph 13.1.1(1)(f), the regard that paragraph 13.1.1(1)(c) requires to be had to the sentence imposed for a “crime or crimes” and the weight to be given to “crimes” against the vulnerable members of the community in paragraph 13.1.1(1)(b). Paragraph 13.1.1(g) refers to whether a person has “re-offended” since being formally warned in writing about the consequences of “further offending” in terms of his or her migration status. A non-citizen’s migration status is able to be changed by the Minister if he or she does not pass the character test as set out in s 501(6) as expanded upon by s 501(7). He or she may not pass it on grounds other than having a substantial criminal record, having been convicted of an offence while in immigration detention, while escaping from immigration detention or before being returned to immigration detention or having been convicted under s 197A, there is a clear line drawn in s 501(6) between behaviour culminating in a conviction and behaviour “constituting” certain offences or crimes and conduct otherwise[61] and behaviour generally.
[61] Migration Act; s 501(6)(ba)
It follows that, even though Mr Tuimaseve has made certain admissions during the hearing regarding his conduct on Christmas Island, he cannot be said to have committed a crime so that his behaviour is brought into consideration at paragraph 13.1.1(1)(h). We will consider it under paragraph 13.1.2 in the context of “serious conduct”.
A.2 The evidence
The only evidence that we have regarding the first two sets of offences of which Mr Tuimaseve was convicted on 29 February 2012 and 19 April 2012 is that of Mr Tuimaseve himself. There is additional evidence in relation to the third set of offences but we do not have the sentencing remarks of the Magistrates in any instance. With regard to the Community Corrections Orders (CCOs), we have only Mr Tuimaseve’s evidence regarding the manner in which he was required to comply with them.
A.2.1 Recklessly Cause Injury and Affray: 29 February 2012
We will begin with the convictions Intentionally Cause Injury and Affray, of which he was convicted in the Melbourne Magistrates’ Court on 29 February 2012. In his statement given to the Minister’s delegate, Mr Tuimaseve said that:
“… there was a fight on the dance-floor and a man was being beaten up, so I pulled him out, and then the people who were fighting tried to jump me. …”[62]
[62] G documents; G13 at [21]; 107
In cross-examination, Mr Tuimaseve and Ms Helsdon had the following exchange:
“… [T]here was a fight on the dance floor and a man was being beaten up so you pulled him out. Now, can you tell me about that? --- Yes, we were at Chelsea Heights Club and I remember just being on the dance floor and there was a massive fight that happened right in the middle and there was just one guy versus all these other fellows and no-one was jumping in – not even the bouncers so I jumped in and grabbed him out of there.
Did you know the people who were fighting? --- No.
And so why did you get involved? --- Because he needed help.
But you didn’t know the person who was being beaten up? --- No. That’s why I jumped in and then my friend that was working as a bouncer, he was ejecting these patrons out – the ones who were beating up this one fellow and then – yes, my mate gets cheap-shotted and then we chased them, yes, we were just standing outside having a smoke and then he gets cheap-shotted by one of them and then chased them down – down the car park.
…
And your friend was the one who gave the hit to this person? --- No, my friend got hit.
Your friend got hit? --- Yes.
As then the person ran? --- Yes.
And you chased? --- Yes.
And this person sustained injury? --- Well, I didn’t get him in the race – like he came back.
Okay, so let’s talk about that. You ran after him when he was leaving the nightclub because he hit your friend? --- Yes.
And then did you catch him? --- No.
So he ran away? --- Yes.
And then he came back? --- No, it wasn’t like that – like when we turned around there was another guy there – there was another guy, that’s the guy I hit.
Okay? --- So this guy, he hits my mate, he runs.
Yes? --- I started chasing him and then when I turned around my mate is arguing with another guy.
Right? --- Yes, and then I walked up to them and then he started like – he starts swearing at him and then I just hit him.
You hit him. Did you once or did you hit more than once? --- Just once.
And did he fall to the ground? --- Yes.
Did he sustain any injuries? --- I don’t know.
And so you didn’t wait around – you left? --- Yes.
So how did you become involved with these people? You said in the nightclub you pulled someone out of a fight and you didn’t know anyone, then how did you end up in an altercation out the front? --- No, because I went to the club because my mate was a bouncer there so I went to go have fun while he was working and there was a big fight that happened there, so no-one was jumping in so I just jumped in and helped the – helped some random fellow.
You didn’t want to leave that to your friend? --- No, my friend wasn’t over there.
Your friend wasn’t? --- He wasn’t there – I think he was outside smoking.
Right? --- Yes, and then so they’ve all got radioed that there was a fight on the dance floor they all came in and took out all the troublemakers.
And so why did you think that was your business to jump in to someone else’s fight? --- There was like – he was getting beaten up by a whole bunch of guys and no-one was there to help him. I don’t know – instinct just kicked in, I just jumped in.”[63]
[63] Transcript at 45-46
A.2.2 Recklessly Cause Injury: convicted on 19 April 2012
In an undated statement made before the Minister’s decision to revoke his visa, Mr Tuimaseve explained how these offences had come about:
“… A family member told me that a gang had trashed my aunty’s house because her son (my cousin) didn’t want to join them – they were trying to recruit him. My brother and I told him not to join: we are really against gangs. They tried to beat him up – he was fourteen, and the guy was twenty-eight. We ran into them at a shopping centre and there was a small fight. We wanted to protect our cousin. …”[64]
[64] G documents; G13 at 107; [21]
In answer to his counsel, Mr Aleksov, at the hearing before us, Mr Tuimaseve gave the following evidence regarding the events leading up to his first two convictions:
“Do you remember that incident? --- Yes.
What happened? --- I got into a scuffle at the shopping centre.
And what was the – what happened – what was the background circumstances to that scuffle? --- We got misled. I got misled, into thinking that this guy, the victim, was after my family.
When you say after your family, what do you mean? --- He was after my cousin, like was going to get him.
Yes? --- Yes so - - -
Do you know why? Or, did you know why? --- It was some gang related stuff. I’m not too sure.
And so, you – what happened? You thought they were after your cousin when you went to the supermarket, or sorry to the - - - ? --- No, I finished work and I was at the supermarket already and then I bumped into them.
Into? --- Into the victim.
Yes? --- Yes.
And these were the people trying to get your cousin? --- Yes.
Or that you thought were trying to get your cousin? --- Yes. And then I asked him what happened and then he said, ‘No, it’s all over’. So when I bumped into him at the shopping centre again, rumour was going around he wanted to take me on.
What do you mean, take you on? --- In a fight.
Yes? --- So, when I saw him, I just went for it and started fighting.
Were you scared of him? --- No.
Did you think he was going to fight you at the time? --- Yes.”[65]
[65] Transcript at 12
Pastor Viliamu Finau is the Pastor of the Dandenong Branch of the CCCS. He has known Mr Tuimaseve since approximately 2000. Pastor Finau spoke highly of Mr Tuimaseve’s help in undertaking maintenance work at the church and in assisting with the youth groups. When he is home, Pastor Finau said, Mr Tuimaseve goes to the Church every day to work with the young people and he is always helping them in whatever ways he can. The young people like and respect Mr Tuimaseve very much and to him with their troubles. None of the young people had been in trouble for being violent. The Church community feels incomplete without Mr Tuimaseve among them. Pastor Finau said that he would work hard with Mr Tuimaseve were he to return as he still needs help to continue his journey as a young man. Despite the most recent incident on Christmas Island, Pastor Finau believed the Mr Tuimaseve can still be a role model for young members of the community. As his pastor, Pastor Finau would keep on teaching him about Christian morals and the way to grow up and live as a good person.
“So, in that way, we believe that where there is hopeless, there is still hope. Where there is impossible, there is still possible.”[85]
[85] Transcript at 73
The Reverend Apineru Apineru baptised Mr Tuimaseve as a baby in New Zealand and renewed his contact with him and his family when he came to Australia in 2004 to found a new parish. He spoke highly of Mr Tuimaseve’s willingness to help and of his generous spirit.
With regard to his youth work, Mr Luke Wilson spoke very highly of Mr Tuimaseve. Mr Wilson is a Certified Therapeutic Residential Care Worker, who has worked with Berry Street in the past and also works with Christian Youth Camps (CYC). He is currently working for a youth organisation in Cambodia and has been engaged by the Cambodian People’s Party. For the past ten years he has known Mr Tuimaseve, is aware of his past history and has visited him in prison. Mr Wilson has mentored or life-coached Mr Tuimaseve to assist him to achieve his passion for helping troubled youth. They have partnered each other in their volunteer work in youth camps where he has played a “huge role”[86] in helping to keep a roof over their heads and food on the table let alone laughter to get them through difficult times. With the right leadership and guidance, Mr Wilson believes that Mr Tuimaseve will have a significant positive impact on the community. That is so even though and because he has been in prison. The most effective youth workers have come from troubled backgrounds. Mr Tuimaseve has life experience and has learned lessons from his experience. They have made plans for working together in the future in youth camps and undertaking speaking engagements in schools and youth groups. In that way, he can become part of the solution and not part of the problem.
[86] Exhibit A4
The evidence of Mr Finau, Mr Taeleipu and Mr Wilson is consistent with reports of Mr Tuimaseve’s behaviour on Christmas Island. Reports written before the incident with the Iranian man are reflected in the following sample written by various Serco officers:
“David is polite and well mannered towards fellow detainees and officers”[87]
[87] Exhibit A; Serco Detention Dossier 27 April 2016
“… Dave appers to be an easy going man who enjoys a laugh. He has a positive attitude and engages well with both detainees & staff alike. – Behaviour: Nil issues with behaviour he is easy to talk to & friendly. He is polite and shows respect to others. …”[88]
“David is a very polite & respectful person towards staff & his fellow detainees. David is a leader amongst his peers. He is good at diffusing bad situations between other detainees. David is also a jovial man who likes to look on the positive side of life.
…
David participates in as many structured activities as he can. He is a talented home grown musician & artist. He is often sketching drawings late in the evening.”[89]
[88] Exhibit A; Serco Detention Dossier 16 May 2016
[89] Exhibit A; Serco Detention Dossier 17 June 2016
Following his return from the White One compound after his participation in the incident on Christmas Island, a sample of Serco’s reports regarding Mr Tuimaseve state:
“… David has settled back in to the compound well. David has a strong social network in Green One, he is probably closest to … & … David is generally a compliant, conversational and helpful detainee. He isn’t abusive or aggressive and has a very positive and cheerful demeanour. David gets along well with detainees and officers often sharing jokes. … “[90]
“David has a positive attitude and always welcomes and socialises with staff and fellow detainees. He is often seen in B block playing cards with fellow detainees and asking staff to come join in and socialise. …
David usually is well behaved and respectful. On 23-10-2016 he confronted an ERT member wanting to know about the room search conducted the previous day wanting to discuss why that officer had completed an SIR. The staff member wouldn’t respond which agitated David but he remained calm. He was spoken to by … and … to which they both stated there was no issue to arise. David later approached compound staff and appeared his normal happy vibrant self afterwards.”[91]
[90] Exhibit A; Serco Detention Dossier 7 August 2016
[91] Exhibit A; Serco Detention Dossier 23 October 2016
We have taken account of the evidence of Dr Cunningham who expressed his view in a report dated 29 April 2016 that Mr Tuimaseve presents with minimal risk factors for future violence. He gave his reasons for that conclusion in the following paragraph:
“… He does not present with relationship problems, employment problems, substance abuse, major mental illness, personality disorder, prior traumatic experiences, violent attitudes, supervision failure, lack of insight, violent ideation, lack of support and lack of engagement in treatment. Mr Tuimaseve’s risk is largely based on his prior offence behaviour. Mr Tuimaseve’s prior offence behaviour occurred in specific contexts that increased the risk of violence. Two of his offences occurred in nightclubs whilst his other offence occurred in the context of believing he was protecting his cousin from people who wanted him to join a gang. In my opinion, Mr Tuimaseve’s lack of maturity contributed to his decisions and difficulty de-escalating conflict. In my opinion, Mr Tuimaseve has taken steps to address his risk by engaging with prison based rehabilitation programs related to problem solving and anger management. Further, Mr Tuimaseve’s recent incarceration presented as a significant consequence for his offence behaviour. Mr Tuimaseve’s prior incarceration was the first time he was disconnected from his family and community. In my opinion, this contributed to him reflecting on his behaviour and resolving to make better choices in the community.
Mr Tuimaseve appears to have several current protective factors that may reduce his risk factors, stabilise him within the community and improve his psychological functioning. Mr Tuimaseve presents with family supports. He is connected to a larger prosocial group with his local Church. He has prosocial motivation to work and support his family. He presents as remorseful and has insight into the consequences of his offending on the victims and his family.
… In my opinion, Mr Tuimaseve’s risk can be managed in the community by maintaining prosocial peer engagement, employment and family support. Further, Mr Tuimaseve would benefit from continuing psychological intervention to improve his ability to manage conflict and emotional states. … Maintaining stability in the community and engaging with supports would manage his risk of reoffending and positively predict rehabilitation.”[92]
[92] Exhibit E
We have set out quite lengthy passages from the evidence of the Serco officers for they are consistent with the evidence given by members of the CCCS congregation and by his family and friends testifying to Mr Tuimaseve’s good qualities as a son and brother, friend and member of the communities comprising the CCCS congregation and the community on Christmas Island. There is an element of structure in these relationships with that on Christmas Island being the most structured and those of his family and that of the congregation being supportive and available to him but not limiting of his behaviour. Within those communities, his caring nature is apparent. He is able to keep his calm even when appearing to be agitated by a search on Christmas Island. Serco officers have written of his ability to defuse situations and we regard Mr Tuimaseve’s role in the incident that began with an altercation between the Russian man and the Vietnamese man as an example of his skill in that regard. That would seem to be an example of his ability to use verbal skills to defuse a situation. The skills he displayed on the soccer ground when African and Vietnamese men began to fight appear to have been more physical.
Mr Tuimaseve has shown admirable qualities in many parts of his life and we have no doubt that, but for his behaviour that led to his being convicted and to his involvement in the subsequent incident on Christmas Island, Mr Tuimaseve could well have found his place in youth work with the CCCS or in the wider community. The problem that we have is that, as fine as his qualities are, he has moments or occasions when he forgets all of his anger management training and all of his natural skills as a negotiator. He turns to his fists seemingly without thought in situations where others are fighting or he perceives a friend or family member needs protection. Whether that is a conscious or an intuitive response, we do not know on the evidence. What we do find on the evidence is that the problem solving programmes and anger management courses that Mr Tuimaseve undertook in prison have not assisted him in dealing with the latest incident.
Dr Cunningham is of the opinion that Mr Tuimaseve has sufficient supports in place and has taken steps to address his risk of re-offending. His report was, however, written shortly after Mr Tuimaseve was transferred to Christmas Island and before the latest incident. Dr Cunningham prepared a further report dated 28 February 2017 in light of that most recent incident. In summary, Dr Cunningham was of the opinion that Mr Tuimaseve’s risk of re-offending is based on peer associations and his decision to stand in a protective role. Mr Tuimaseve reported understanding the importance of not engaging in violent behaviour and instead being present for his family. Engaging with family, maintaining employment and ceasing association with negative peers will reduce his risk and “positively predict rehabilitation”.[93]
[93] Exhibit J at 3
Given the tensions on Christmas Island, it could be said that Mr Tuimaseve has done well to avoid trouble in all but one instance and particularly so as he is there without the factors that Dr Cunningham identified as being capable of reducing the risks of his engaging in further violent behaviour. It might also be said that, were he in Australia, those factors would be present and reduce his risk of violent behaviour but we do not agree that will always be the case. He had the supports of church and family when he committed the three sets of offences and that did not stop him. He was not stopped by the cancellation of his visa. Other factors came to the fore. As committed as Mr Tuimaseve is to his Church and to his family, he cannot live life by ensuring that he is always working, socialising or engaging in everyday activities in their sphere of influence.
We accept that Mr Tuimaseve is deeply remorseful and that he would like to stop his violent behaviour. The recent incident on Christmas Island leads us to conclude that there remains a real risk of his engaging in that behaviour in the future. All of his fine qualities and his anger management and problem solving training seem to be forgotten in a moment as he acts, as Dr Cunningham describes it, “in the defence of peers”. The risk of his forgetting on another occasion his finer qualities and the need to show restraint remains a very real and not inconsiderable risk. He showed it when he was on his own and asked the Serco officers about the search of a room on Christmas Island. His ability to contain his anger was under greater strain when he understood a psychologist to say that he was wasting his time in trying to fight to stay in Australia but he did not resort to physical violence.[94] Mr Tuimaseve used some physical force to separate his friends on the soccer field but not violence and he has shown his skills in defusing situations.
[94] Exhibit A1 at [6]
The occasion on which he did not exercise restraint occurred when his friends were involved in an altercation with Mr L. His action in that incident was a single blow to Mr L but it was a blow that was itself a violent act and that enabled his friends to inflict violence upon Mr L. That is so regardless of whether Mr L was, or was not, blameless in the events that led to the altercation. There is a significant risk that any repetition of his violent behaviour will have serious consequences in the future. Those consequence flow from the force of the blows that Mr Tuimaseve lands upon his perceived adversaries. His blows generally put his victims on the ground immediately. In the incident at Warragul, he rendered two people unconscious with a single blow. That is very serious indeed. The possibility of killing a person with a blow of that sort is very high indeed. The risk of Mr Tuimaseve’s repeating that conduct remains high as is indicated by his involvement in the incident on Christmas Island.
C. Best interests of minor children in Australia affected by the decision
Paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the bests interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[95] In considering the best interests of the child, paragraph 13.2(4) provides:
[95] Direction No. 65 at [13.2(2)]
“In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.”
A. Consideration
Mr Tuimaseve’s brother, Jonathan, and sister in law, Candice De Cerff, have two children. On the basis of Mr Jonathan Tuimaseve’s evidence, we find that his brother has a very close relationship with the children. He would buy nappies, clean and feed the elder child, take her to childcare and pick her up, help his sister in law at other children’s birthday parties and generally help his brother’s partner with their care. That was particularly so when he, Mr Jonathan Tuimaseve, was convicted of robbery and was imprisoned for 15 months. On his release, he was placed on a 20 month Good Behaviour Bond for his part in a riot that occurred when he was in gaol. During his incarceration, Mr Tuimaseve cared for his brother’s family and his brother resumed his role on his release from prison. Mr Jonathan Tuimaseve was released on 7 July 2014 and so ten days before Mr Tuimaseve was sentenced to imprisonment.
Mr Tuimaseve has been a father figure for his brother’s elder child although the younger child was only one when he went to Christmas Island a year ago. Mr Tuimaseve’s younger niece does not know him now but we accept that his nieces’ parents see him in the role of a “fun uncle” who, given his experiences, is in an excellent position to teach them how to stay out of trouble. Mr Jonathan Tuimaseve and Ms Candice Cerff regard their children as being like his children as well.
Should Mr Tuimaseve not be permitted to remain in Australia, the nieces will not be able to travel to see him as we accept that their parents could not afford it. He will not be part of their lives as they grow up and will not benefit from experiencing at first hand his fine qualities, some of which we identified earlier or, more generally, from the love he has for them as their uncle. As good as communications systems such as Skype are, they do not take the place of human contact.
D. Expectations of the Australian community
Paragraph 13.3(1) states:
“The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
D.1 How are those expectations determined?
Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non‑citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. A consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that:
“… The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in any sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.[96]
[96] The reasons for this view are set out in Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72]
D.2 Consideration of the expectations of the Australian community
The Australian community expects its members to be able to carry out activities of normal living without fear of attack. As Mr Tuimaseve himself said, they expect to be able to go out and to return home safely. It does not distinguish among different groups in the community so that it is all right if, for example, people who frequent a particular type of venue are potentially subjected to violence but those who go to another type of venue are not. The Australian community expects that all of its members should be safe from violence. That is so even when the perpetrator of the violence may think there is justification for the attack. In recent times, there is general concern in the Australian community about violence in the form of a “king hit” or a “one punch” attack. It is not tolerated and it is of a type of violence in which Mr Tuimaseve has engaged during each of the circumstances leading to his convictions and in which he was involved on Christmas Island. We say “of a type” because he used that expression only in relation to the Warragul offences but he is shown as delivering a single punch on the CCTV footage and he hit the man outside the Chelsea Heights Club with a single punch. In each of those cases, the victim was knocked to the ground. Given the risks that arise from a single hit of that nature and the circumstances in which we find that Mr Tuimaseve has delivered punches of that sort, we consider that the risk of his causing future harm if he were permitted to remain in Australia is unacceptable.
Despite its harsh view of violence, the Australian community also expects that it will give people a chance to redeem themselves and to modify and change their behaviour so that it accords with accepted behaviour. It offers assistance to do that in the criminal justice system through the variety of sentences that may be imposed and the conditions to which CCOs and the like may be subject. It does not glean any satisfaction from seeing families broken apart but the pain caused to the family by separation does not determine whether the risk of future harm to the Australian community is unacceptable.
Other considerations
The five other considerations are summarised in paragraph 14(1):
“a) International non-refoulment obligations;
b)Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.”
A non-refoulment obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. There is no suggestion that Mr Tuimaseve is at risk of harm of the sort that raises Australia’s non‑refoulment obligations under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol (Refugees Convention). Therefore, we find that this consideration does not arise on the evidence in this case.
A. Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No. 65 states:
“… Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).”
Mr Tuimaseve’s ties are with Australia. He has been in Australia since he was nine years of age. His parents, sister, brother, sister in law and nieces all live in Australia. His Church community is in Australia and he has close ties with its members. They are part of his family. All members of the family regard themselves as Australians and not as New Zealanders. When Mr Tuimaseve visited New Zealand some years ago with his parents and sister, Mr Tuimaseve felt no affinity with that country. His family still has some friends there but he does not.
B. Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 65 states:
“Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivers an important service in Australia.”
We find that, if he were to stay in Australia, Mr Tuimaseve’s cousin, Mr Ioritana Faaiuaso, has promised to employ him as a plasterer. That would be a good outcome for Mr Tuimaseve and a good outcome for Mr Faaiuaso who speaks highly of Mr Tuimaseve’s skills as a plasterer. It will not have any effect on Australian business interests.
C. Impact on victims
At paragraph 14.4(1), Direction No. 65 states:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
We have no information regarding the effects upon the victims in the first two incidents leading to Mr Tuimaseve’s being convicted of offences. Some information is available regarding the effect on the two victims of the third incident and we have referred to their injuries earlier. We have no evidence to suggest that there would be an ongoing impact on the victims of Mr Tuimsave’s offences, were the cancellation of his visa to be revoked. We have addressed the potential risks to members of the Australian community above.
D. Extent of impediments if removed from Australia/not permitted to return
Direction No. 65 also states in paragraph 14.5(1) that:
“The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.”
Mr Tuimaseve will be heartbroken if he has to face life without his family as will his family. He has relatives in New Zealand but not relatives with whom he has had regular, if any, contact. He does not know them and we have no evidence that he could turn to them to help him to find accommodation and work should he be required to return to New Zealand. Services provided by the New Zealand Government would be as available to him as to any other New Zealander to provide assistance to him in his search for work and accommodation.
Even when those matters are attended to, Mr Tuimaseve will find it very difficult to deal with the fact that he is not living with his parents and so cannot assist in their day to day care. We accept that they have debilitating health issues and, until his imprisonment, he has been closely involved in their care and general maintenance of the home as was his sister. Until his imprisonment, Mr Tuimaseve had given all of his income to his parents to augment their Centrelink payments so that they could pay for the household bills and medication. At the moment, the major part of the burden of caring for his parents falls upon his sister, Sina, and brother, Jonathan. As his brother has his own family to care for, the greater part must necessarily fall upon his sister, Sina, although Jonathan gives money when he can and provides transport and emotional support. Sina still lives at home with her parents, pays the mortgage on the house, pays the bills that her brother would have previously paid and pays for his legal fees. She has been placed in the position of living from week to week and only just makes ends meet. Life is a struggle for her and it is a life that is focused entirely on maintaining her family. The CCCS community also contributes to the family’s care and welfare and, although she is grateful, having to accept help is clearly something that Sina struggles to cope with.
Although he would find it difficult to live without his family in New Zealand, we note that Mr Tuimaseve has lived without physically seeing his family for ten months or so due to his being placed in immigration detention on Christmas Island. We accept the evidence of his sister, which supports his own, that he has found it an extremely difficult environment in which to live. He has been scared and run down. At the same time, we find on the evidence of the Serco notes that, generally, he has presented a positive and cheerful demeanour. He is conversational and cheerful and has engaged in activities that are available to him. Special note was made of his place as the lead singer with the band that has been formed on Christmas Island and of his pride in the way it has improved over time. These things do not in any way discount his feelings of being scared and run down or of his suffering from, as Dr Cunningham has diagnosed, symptoms of depression and anxiety. What they do show is that Mr Tuimaseve has developed strategies to deal with his situation and to make the best of it. They are strategies that will stand him in good stead whether he lives in Australia or in New Zealand.
Conclusion
Having regard to all of these matters, we find that the decision of the delegate of the Minister should be affirmed. In reaching that decision, we acknowledge the many fine qualities that Mr Tuimaseve has and, his dedication to, and mutual dependence upon, his family and members of his Church. We acknowledge the considerable pain that he and his family and members of his wider family in the sense of the Church community will endure and the difficulties that he will face in New Zealand and that they will face in Australia. Given that the underpinning policy of the Direction is to protect the Australian community, we have reached the view that the risk of harm to the Australian community beyond Mr Tuimaseve’s immediate family and Church community is at an unacceptable level. His propensity to engage in violence has not been tempered and the risk of his causing serious injury to another person is unacceptable.
DECISION
For the reasons we have given, we have decided to affirm the decision of a delegate of the Minister dated 17 May 2016 not to revoke an earlier decision dated 3 August 2015 to cancel Mr Tuimaseve’s Class TY Subclass 444 Special Category (Temporary) visa.
I certify that the one hundred and fifty six preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie.
Signed: ………[sgd]....................................
Associate
Date of Hearing 2 March 2017
Date of Decision 31 March 2017
Counsel for the Applicant Mr Angel Alexsov
Solicitor for the Applicant Ms Hannah Dickinson
Carina Ford Immigration Lawyers
Solicitor for the Respondent Ms Leith Helsdon
Sparke Helmore
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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Statutory Construction
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