Fattah v Minister for Home Affairs
[2019] FCCA 2640
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FATTAH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2640 |
| Catchwords: MIGRATION – Application for extension of time to review a decision of the Administrative Appeals Tribunal – application was sent to the wrong facsimile number – not without reasonable prospects – extension of time granted – subclass TY 444 (Special Category) visa – Applicant charged with offences and granted bail – cancellation of visa on Tribunal’s determination of possibility of risk to community – whether Tribunal decision unreasonable or illogical – Tribunal obtaining a copy of a New Zealand Health Practitioners Tribunal decision – whether Tribunal complied with ss.359A and 359AA of the Migration Act 1958 (Cth) – whether a Class TY Subclass 444 (Special Category) visa is a permanent visa – whether Notice complied with s.119 of the Migration Act 1958 (Cth) – allegation of bias against the Tribunal – no jurisdictional errors established. |
| Legislation: Migration Act 1958 (Cth), ss.116; 117; 119; 189; 359A; 359AA; 476; 477 |
| Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 |
| Applicant: | SHARIF MOHAMMAD ABDUL FATTAH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1293 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 14 August 2018 |
| Date of Last Submission: | 14 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr T Liu |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to s.477(2) of the Migration Act 1968 (Cth), EXTENDS the time for making the application provided by s.477(1) of the Act up to and including 7 May 2018.
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1293 of 2018
| SHARIF MOHAMMAD ABDUL FATTAH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.477 of the Migration Act 1958 (Cth) seeking an extension of time to file an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, made on 19 March 2018, and if the application be allowed, an application pursuant to s.476 of the Act for judicial review of that decision.
The Tribunal affirmed a decision of the Delegate of the First Respondent, the Minister for Home Affairs, made on 16 October 2017 pursuant to s.116 of the Act cancelling the subclass TY 444 (Special Category) Visa held by the Applicant, Dr Fattah.
On 16 October 2017, the Delegate cancelled the Visa under s.116(1)(e)(i) of the Act on the basis that “the presence of Dr Fattah in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community and, in particular, women within the Australian community”. The Delegate cancelled the Visa after NSW Police charged Dr Fattah with multiple counts of sexual intercourse without consent and assault with act of indecency. The charges related to conduct which was alleged to have occurred in the course of his practice as a medical practitioner.
Dr Fattah denied the charges, and instructed his criminal lawyer to enter a plea of not guilty to all charges, and was granted bail on 4 May 2017.
On 30 November 2017, however, he was detained, and placed in immigration detention in the following circumstances. On 20 October 2017 Dr Fattah applied for a Bridging Visa E which was granted on 8 November 2017. The bridging visa was issued with strict conditions including that he must report to NSW Compliance on 30 November 2017, and must not engage in criminal conduct.
On 30 November 2017, when Dr Fattah reported as required, he was given a Notice of the Minister’s intention to cancel his bridging visa, identifying possible grounds for cancellation as a prescribed ground under s.116(1)(g) of the Act. Dr Fattah was then interviewed by a delegate of the Minister who decided to cancel the bridging visa, and did so that evening. On the same day, the delegate cancelled the bridging visa, Dr Fattah was detained pursuant to s.189(1) of the Act and taken to immigration detention. At the time I heard Dr Fattah’s application, he remained in detention.
The decision to cancel that bridging visa was affirmed on review by the Tribunal (differently constituted), and Dr Fattah applied to this Court for judicial review. His application for judicial review of that Tribunal’s decision to cancel his bridging visa was dismissed by a Judge of this Court on 6 July 2018: see Fattah v Minister for Home Affairs & Anor [2018] FCCA 2010. On 13 July 2018, Dr Fattah appealed that decision to the Federal Court. That application was dismissed by a Full Court of the Federal Court (constituted by Perram, Farrell and Thawley JJ) on 27 February 2019: see Fattah v Minister for Home Affairs [2019] FCAFC 31. On 27 March 2019, Dr Fattah filed an application for special leave to appeal in the High Court. On 14 August 2019, the High Court dismissed his application: [2019] HCASL 241.
On 7 May 2018, Dr Fattah self‑lodged in this Court his application for judicial relief of the Tribunal’s decision made 19 March 2018. He did so after unsuccessfully attempting to lodge the application from the detention centre on 15 April 2018, within time, by facsimile to an incorrect facsimile number. The application was filed 2 weeks outside the statutory time limit of 35 days.
When the matter came before me on its first return date on 30 May 2018 I made orders by consent which included listing the matter for hearing of the application for extension of time, and if granted, the hearing of the substantive application on 14 August 2018.
At the hearing on 14 August 2018, Dr Fattah appeared before me unrepresented but with the assistance of a Bengali interpreter. He conducted his case in English fluently, however, with the occasional assistance of the interpreter. Mr Liu of junior counsel appeared for the Minister. Further to the orders made by consent on 30 May 2018, in addition to presenting argument on the application for extension of time the parties fully argued the substantive application.
Grounds of application for extension of time
Dr Fattah relied on the following grounds for an extension of time (without alteration, excepting as I have indicated):
(1)The date of lodgement of application exceeded the date line of 35 days from the day of decision making due to technical mistake. The application with Affidavit form signed by JP and a copy of the AAT decision were faxed to the No. 02-92308535 on 16 April 2018 [corrected to 15 April 2018]. After enquiry with FCC on 03 May 2018 1 came to know that it was not the right fax number therefore had to re-fax with some corrections to the fax No. 02‑92308295.
(2)Personal reasons: I am a self-represented applicant with no previous experience, currently in detention, haven't heard anything yet from Legal Aid re this issue (applied for), could not hire a solicitor due to lack of funding.
The Minister accepts that the delay is not significant, and that Dr Fattah provides a coherent explanation for delay, and does not assert any prejudice. However, Mr Liu submits that none of the grounds or issues raised by Dr Fattah establish jurisdictional error by the Tribunal, and do not have sufficient merit to warrant an extension of time. Should an extension of time be granted, Mr Liu submits that the application should be dismissed in any event.
The principles governing the grant of an extension of time in this Court are well rehearsed: see e.g., the decision of Mortimer J in MZABP v Minister for Immigration & Ors [2015] FCA 1391; (2015) 242 FCR 585, at [58]-[62], approved by the Full Court of the Federal Court in MZABP v Minister for Immigration & Ors (No 2) [2016] FCAFC 138. MZABP and a number of other decisions were considered by Griffiths J in EXU17 v Minister for Immigration and Border Protection [2018] FCA 1675, see esp. at [51]:
[51]The matter is more nuanced, however, than those passages might suggest, as Mortimer J explained in her subsequent observations in MZABP at [62]-[66]. In considering and determining an application for an extension of time, the Court is not required to conduct an exhaustive or detailed analysis of prospects. As the Minister acknowledged here, the task is carried out “at an impressionistic level” (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]). As Wigney J stated in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [82]-[85], a distinction can be drawn between an assessment that the prospects of grounds of review which are hopeless and destined to fail, as opposed to those which may be characterised as being weak. At [84], his Honour said that even where grounds are weak it will seldom be appropriate to refuse to extend time (to similar effect see Seiler at 98 per French J). An appeal from Wigney J’s decision was dismissed in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158. If the Court assesses the prospects as being hopeless or very low, it is unlikely that this will be outweighed by other matters which are in favour of time being expended. But those other considerations may tilt the balance in favour of time being extended even in a case where the Court assesses the prospects as being no better than weak.
Further to [12] above, and having regard to the above referred to decisions, the principal consideration on the application for extension of time before me is whether, considering the substantive application on “an impressionistic basis”, the prospects of success are such that the application for extension of time should or should not be granted.
I am mindful of Mortimer J’s exhortation in MZABP not to travel beyond an examination of the substantive application at a “reasonably impressionistic” level, and of Wigney J’s observation in SZTES of the need to distinguish between grounds that are hopeless and destined to fail, and those which are properly described as weak, and in the latter case that it is seldom appropriate to refuse to extend time.
For the reasons set out in the course of my consideration of the substantive application below, considering the substantive application on an impressionistic basis, I am persuaded that the substantive application is not without reasonable prospects; at least, that it is not hopeless and bound to fail. The extension of time is allowed. I extend time to 7 May 2018.
As the matter was fully argued, I have proceeded to determine the substantive application on a final basis. For the reasons that follow, however, I have concluded that no ground of judicial review is made out, and that Dr Fattah has not established jurisdictional error.
Background
Dr Fattah, born in Bangladesh in 1956, is a citizen of New Zealand. As at the date of the hearing before me he was 62 years of age. He and his wife and son first lived in Australia for several months encompassing 26 February 2001, before moving to New Zealand. Since January 2016 (just over 2 years prior to the Tribunal’s decision) he has lived primarily in Australia, and held the Visa until it was cancelled by the Delegate. He has worked as a general practitioner while in Australia (ceasing on 7 March 2017), and previously as a general practitioner variously in New Zealand, Iran and Bangladesh. His wife and adult son continue to reside in New Zealand, where his wife cares for her elderly, invalid mother.
On 7 March 2017, Dr Fattah was charged by NSW Police with 14 counts of sexually assaulting 3 of his female patients between 28 January 2017 and 6 March 2017. According to the Tribunal decision at [4], following a media release, some 14 further alleged victims identified themselves. Subsequently, on 19 March 2017, Dr Fattah was charged with multiple counts of offences of sexual intercourse without consent and assault with act of indecency in the period September 2016 to March 2017. In all, as noted by the Tribunal (at [4]), Dr Fattah has been charged with offences involving allegations concerning 15 female patients. (I note that inconsistently and erroneously the Tribunal at [56] stated that the charges related to 17 different women who were treated by him.)
As I have said above, Dr Fattah pleaded not guilty to the charges. On 4 May 2017, he was granted bail by a Judge of the Supreme Court of New South Wales on strict conditions, and upon posting $500,000 surety. Those bail conditions included (as at 28 July 2017, on the bail sheet in evidence before me): daily reporting to Campbelltown Police, that he is not to practice medicine, or to be alone with any woman other than his wife, that he is to reside at a particular house with specified persons, that he is subject to a curfew between 8:00pm and 8:00am, and between 8:00am and 8:00pm may not leave the house unless in the company of certain specified persons previously notified to Police, and that he surrender his passport to Police and not apply for any new passport or travel document.
Pending the hearing and determination of the criminal charges against him, Dr Fattah is unable to leave Australia.
Since the hearing before me, Dr Fattah has been tried, and convicted, and in July this year was sentenced to a period of imprisonment. I am not aware whether or not Dr Fattah has appealed his conviction or sentence.
Before the Delegate
On 7 July 2017, the Department of Immigration and Border Protection wrote to Dr Fattah, advising of, and attaching, a Notice of Intention to consider cancelling his Visa under s.119 of the Act. That Notice particularised “the ground for cancellation and information indicating the ground for cancellation appear to exist” as follows:
It appears there is a ground for cancellation at Section 116(1)(e)(i) because it appears that your presence in Australia may be a risk to the health, safety or good order of the Australian community.
The information before me is that on 07 March 2017 you were arrested and subsequently charged by the NSW Police with the following offences:
- Sexual Intercourse without Consent – 8 counts
- Assault with Act of Indecency – 6 counts
Information before me indicates that the alleged offences were perpetrated on multiple victims while you were treating them in the role of their General Practitioner. I consider that the reporting of the alleged offences, including the various serious charges of Sexual Intercourse without Consent from multiple, unrelated women indicates that you may be prone to targeting a particular segment of the community, namely women. I consider that such a pattern of offending and the nature of the alleged offences suggests that you may continue to pose a risk to women despite no longer being employed as a General Practitioner.
Having considered the evidence available to me, it appears there is a ground for cancellation at Section 116(1)(e)(i) because it appears that your presence in Australia may be a risk to the health and safety of a segment of the Australian community, namely women. If this is the case your visa may be cancelled. (emphasis added)
I note that the Notice referred to the charges laid on 7 March 2017 (14 counts, involving claims made by 3 female patients), and not the further charges laid on 19 March 2017.
On 11 July 2017, Dr Fattah requested an extension of time to respond to the Notice, which the Department agreed to on the same day. On 1 August 2017 Dr Fattah’s representative provided the Department with submissions in response to the Notice, along with a statutory declaration dated 28 July 2017 made by Dr Fattah setting out his circumstances, and attaching a copy of his bail conditions.
In that statutory declaration Dr Fattah said that he has been in Australia since January 2016, he has worked at 4 medical centres, that he ceased to work as a general practitioner on 7 March 2017 when charged, that his registration has been cancelled, and that he will not practice as a general practitioner again unless he is cleared of the sexual assault charges. He said that his wife and child were currently in New Zealand looking after his mother-in-law, who became ill in mid 2016, delaying his family’s move to Australia. He said that he had obtained support from members of the Australian and New Zealand community in lodging $500,000 security for his bail. As well as practicing in Australia, he stated that he had worked as a doctor in Bangladesh, Iran and New Zealand. He stated that:
“I do not have any findings of misconduct in practice against me from any of my years of work. I have never been convicted of a criminal offence in any country.”
Dr Fattah’s then representative made submissions that the Notice did not comply with s.119 of the Act, submitting that the Department in the Notice failed to explain the source, nature or date of the “information” before it, did not provide adequate particulars, and as such did not establish a lawful basis upon which the cancellation of Dr Fattah’s Visa may proceed. The representative drew attention to the directive in Procedures Advice Manual (PAM3) that “… Delegates need to articulate the specific details or particulars of the risk”, and submitted that the Notice did not follow that directive.
The representative further submitted that the laying of charges does not, as a matter of course, give rise to the ground for the cancellation of the Visa; even if guilty, this does not mean that there is a risk of future criminal activity; that Dr Fattah had been given bail, upon strict conditions; and that there was no appreciable risk that his presence in Australia may be a risk to women in Australia. She submitted that in the absence of probative evidence demonstrating that Dr Fattah will not abide by his bail conditions, it is not open to find that he may be a risk to women in Australia. The representative submitted that to facilitate the removal of a non-citizen by cancelling his Visa when he was facing criminal charges would be contrary to the purpose of the cancellation procedure and undermine the ongoing criminal law proceedings.
On 16 October 2017, the Delegate cancelled Dr Fattah’s Visa, observing that among the legal consequences that followed were that he would be liable to immigration detention and removal. The Delegate held that there was no failure to comply with s.119 of the Act, because Dr Fattah would have been aware of the alleged offences for which he was charged, and NSW Police would have provided him with a detailed list of the alleged offences. He considered that there was a reasonable expectation that the Police would have followed their procedural duty, and there was no need to break down the alleged offences into individual cases.
Acknowledging the bail conditions, and stating that he did not equate the charges with guilt, the Delegate “nevertheless place[d] significant weight on the advice from the NSW Police that they have decided to charge the visa holder with multiple charges … [and he] consider[s] that the NSW Police’s actions in pursuing the charges outweighs the visa holder’s reasons why he considers that the ground does not exist.” The Delegate stated that the cancellation power does not articulate a spectrum of risk, but rather the risk only has to be a possibility. He considered the risk exists as the court has imposed stringent bail conditions.
The Delegate observed that Dr Fattah had not provided any reasons or an account of the events which may be taken into consideration as mitigating factors. Under the heading “Any other matters”, against Dr Fattah’s statement that he does not have any findings of misconduct in practice against him, and clear criminal history reports for New Zealand, Iran and Bangladesh, the Delegate described a search conducted on the New Zealand Health and Disability Director of Proceedings website (NZ HDDP website), and identified a complaint lodged in 2013 by a woman alleging an inappropriate intimate examination by Dr Fattah. The Delegate said that the case was heard by the New Zealand Health Practitioners Disciplinary Tribunal (NZHPT) and dismissed, but that although the NZHPT cleared Dr Fattah, and he accepted that Dr Fattah’s record in New Zealand may be clear, he considered the allegation was remarkably similar to those made by 15 women in Australia, and so he gave less weight to Dr Fattah’s claim regarding his disciplinary record. In his decision, the Delegate provided a footnote reference to the NZ HDDP website, the NZHPT proceeding name and number, and the full URL address of a case note of the New Zealand proceeding, which address and case note title named Dr Fattah.
The Delegate concluded, cancelling the Visa: “I consider that the offences with which the visa holder has been charged indicate a concerning history of alleged sexual assault against women, and that despite the disruption to his alleged behavioural patterns, this adverse behaviour may be attempted under different circumstances. As such, I consider that the visa holder may pose a risk to women within the Australian community.”
Proceeding before the Tribunal
On 19 October 2017, through his then migration agent, Dr Fattah applied to the Tribunal for review of the Delegate’s decision. On 8 January 2018 the Tribunal invited Dr Fattah to attend a hearing before it. On 15 February 2018 Dr Fattah attended a hearing before the Tribunal. He was represented at the hearing by his migration agent. Dr Fattah called on 8 witnesses during the hearing (some in person, and some by phone), including his adult son, and by telephone from New Zealand, Dr Fattah’s wife. Statutory declarations or sworn statements from those witnesses had been provided to the Tribunal before the hearing. On 1 March 2018, within the time allowed by the Tribunal, Dr Fattah and his wife each provided post-hearing statements, and his agent made a post‑hearing submission.
The Tribunal affirmed the Delegate’s decision to cancel the Visa.
The Tribunal decision
There are a number of instances in the Tribunal decision where the Tribunal either erred in stating the familial witnesses’ evidence, or presented evidence as contradictory with the written statements, when parts of the Tribunal’s hearing, a transcript of which is in evidence before me did not show contradictions claimed by the Tribunal, or where post‑hearing statements explained the apparent inconsistencies. There are also instances where the Tribunal decision is internally inconsistent in its recitation of facts or the conduct of the hearing. Having regard to the caution not to read the Tribunal’s decision with an eye keenly attuned to the perception of error (Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 271-272; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]), and that the Court in its judicial review jurisdiction does not engage in merits review, when referring to the Tribunal’s decision in this part of these reasons I simply note some of those instances which have been identified, and are the subject of submissions before me by Dr Fattah or his family, and evidence tendered in this Court.
The Tribunal first set out the terms of the Notice, summarised the representative’s submissions to the Delegate, and the matters the Delegate took into account in reaching his decision and exercising his discretion, including the matters I have set out above. It then summarised the information before the Tribunal, first summarising the agent’s submissions. At [14], under the heading “Evidence of the applicant”, the Tribunal set out the procedure with which the Tribunal member began the oral hearing, commencing with informing Dr Fattah of the process under s.359AA of the Act that it would be putting information to him which “would be the reason, or a part of the reason, for affirming the decision under review. It would explain why this information was relevant and then invite him to comment on or respond to the information. If he required more time, he could request an adjournment.”
Interposing, I note from the parts of the transcript in evidence, that the Tribunal member then said “I’ll then consider whether granting an adjournment is appropriate”, an explanation and statement that he repeated later when putting certain material relating to, or arising from, the report of the decision of the proceeding before the NZHPT (NZ Decision). Returning to the Tribunal decision, at [14] the Tribunal noted it gave a warning to Dr Fattah about self‑incrimination in respect of his criminal proceedings.
The Tribunal then summarised certain of Dr Fattah’s evidence to the Tribunal.
The NZ Decision
At [22] the Tribunal referred to the findings of the NZHPT (that is, in the NZ Decision), referred to in the Department’s decision, stating: “a copy of which the applicant had provided to the Tribunal”. Whilst this statement may be a transcription error, it is not correct: see Tribunal decision at [11], dot point 10. I note further that this statement is expressly contradicted by the parts of the transcript of the hearing in evidence before me. The transcript at p31 shows that the Tribunal member says “I’m just going to give you a copy of that decision. … It’s referred to as Dr H. The decision number is [Number is then set out], which is the decision that’s referred to in the [D]epartment’s decision. …”. (I note further that the Tribunal at [23] says a copy of the decision was provided to the applicant).
The transcript then reveals that later, after Dr Fattah’s representative brought to the Tribunal member’s attention that the NZ Decision was not in the first material provided to her, and requested a copy, the Tribunal member said (transcript at p40) “I only got it yesterday afternoon or I downloaded from the Internet about – in fact, it was after I got your last submissions …”. In response to the representative’s request for a copy, the Tribunal member said he had one copy made for them, and she could make a photocopy. When she said “Well, that will be after the hearing that I’d be able to photocopy it”, he responded, “Well, what are you going to do with it now? What do you want to do with it now?”
Dr Fattah’s representative explained that she would like to look at the paragraphs which the Tribunal member was putting to Dr Fattah (stated by the Tribunal member on the transcript as being [56], [64], and [87] of the NZ Decision), pointing out that “it’s a complaint that was dismissed and that was on the basis of [she thought], … a two-day hearing, … before at least four – five tribunal members, … [and that he seemed] to be referring back as though it is (indistinct) to people to – well, their evidence was not accepted. So I’d like to look at the decision in detail.” The Tribunal member then responded: “Sure, go for your life.” Whilst Dr Fattah then said “I’m not quite comfortable with the scope and time I had to explain this”, there is no evidence before me that any application for an adjournment was sought.
During the Tribunal hearing Dr Fattah disputed that there were 3 complaints about him of a similar kind (or multiple complaints, as asserted by the Tribunal member). As I have noted (above at [32]) the Tribunal allowed Dr Fattah time after the hearing to respond in writing to certain issues which arose in the hearing, and Dr Fattah’s representative provided post-hearing submissions on what had been put by the Tribunal, and Dr Fattah and his wife each provided statements.
At [22] of its decision, the Tribunal member says he asked Dr Fattah whether he had been subject to any similar complaint while practising as a doctor in New Zealand, and that Dr Fattah said he could not recall any other complaint made against him. In fact, Dr Fattah said “I don’t recall anything similar to that” (transcript at p33 line 1).
At [23]-[26] the Tribunal described what the Tribunal member put to Dr Fattah regarding the NZ Decision, and Dr Fattah’s response as follows (emphasis added):
[23] The Tribunal referred to the process under s.359AA referred to above. The Tribunal referred to the published decision by the NZHPT, decision number [reference omitted]. A copy of that decision was provided to the applicant. The applicant confirmed that the decision was in respect of the case referred to in the Department's decision. The Tribunal referred to the information in paragraph 56 of that decision which indicated that the Clinical Director at the practice where the applicant had been working as a doctor referred to 'an earlier occasion when there had been a complaint which had resulted in the Doctor having being reminded of the practice's chaperoning policy'. This was relevant as it was inconsistent to the information that was provided by the applicant that he had not been subject to any other complaint, and undermined his credibility. It also indicated that there had been previous complaints that he had inappropriately touched a woman during a medical examination. This indicated that he may be a risk to women.
[24] The applicant said that the earlier occasion related to the case that was heard before the Disciplinary Tribunal. He said that he did not recall any similar complaint being made against him.
[25]The Tribunal referred to in paragraphs 64 and 87 of the decision which relates to evidence from the Clinical Director that there had been another or further complaint about the Doctor which had prompted the Clinical Director to contact the complainant, the subject of the Disciplinary Tribunal hearing. This again was inconsistent to the information provided by the applicant as to whether there had been any other complaints as to his inappropriately touching a female patient during examination and undermined his credibility and also indicated that he may be a continuing risk to women.
[26]The applicant said that where he was practising he had a problem with some of the people there and they wanted to get rid of him. He said that he had a 59-year-old patient who did not feel comfortable with him examining her chest and she said something to a nurse at the practice who wanted her to complain about him, but the patient was not willing to do so. She said that the practice investigated the complaint and it was sent to the Health and Disability Commission but nothing came of it. He said that there was another complaint, but nothing came of it.
[27]The Tribunal noted that the allegations that had been made as outlined in the decision were similar to the allegations that had been made Australia by a number of his female patients, which had led to the criminal charges. The applicant said that he did not wish to comment on that issue in light of the pending criminal charges to which he had pleaded not guilty.
Other evidence
The Tribunal at [28] referred to Dr Fattah’s evidence that he was complying with his bail conditions, and that he would always do so, that the charges were complicated, and that it was difficult to prepare his defence whilst in detention. At [29], the Tribunal recorded that Dr Fattah said was his plan to continue to live in Australia; that he would be happy to go back to New Zealand.
The Tribunal at [30]-[36] summarised the evidence of Dr Fattah’s wife and son at the hearing, and, at [37], of 6 other oral witnesses, largely supportive of Dr Fattah, that he was of good character, and would comply with bail conditions, and would not be a risk to anyone in the Australian community.
From [37] the Tribunal summarised oral submissions of Dr Fattah’s migration agent, and the post-hearing statements and submissions, which explained the circumstances of the NZHPT complaint, and emphasised that Dr Fattah had not previously been found to have engaged in misconduct. The Tribunal recorded at [42], inter alia, that Dr Fattah said:
-first, reference to the need for a chaperone in the NZ Decision was in reference to a general discussion with all doctors at the practice and not made specifically to him;
-secondly the complaint about touching a patient on the chest was, for an unknown reason, referred directly to the Health and Disability Commission (HD Commission) and no attempt was made to resolve the alleged complaint in the practice which would be the normal way the complaint would be first dealt with, and no further action was taken with respect to that complaint by the HD Commission; and
-thirdly, that “he answered ‘No’ to the Tribunal’s question as to whether he had inappropriately touched a woman on her clitoris, the vagina ‘or anything else like that’ because he did not believe that such complaints had been made”.
Contrary to what the Tribunal set out at [42] (in the third point above), in fact what Dr Fattah said in his post-hearing statement was (emphasis added):
14. When the Tribunal Member asked me during the hearing if there had been any other complaints by patients against me similar in nature to the charges I am currently facing or the complaint against me in New Zealand that went to the Health Practitioners Disciplinary Tribunal (HPDT) I answered "No".
15. This was the correct answer because after the Tribunal Member asked if there were complaints similar in nature he specified that he meant a complaint that I had inappropriately touched a woman on her clitoris, vagina or "anything else like that". There have never been any other complaints made that I had done something like that.
The Tribunal reported that the representative submitted that the Tribunal relied upon improper means of obtaining and referring to the evidence of the NZHPT, as the applicant’s name was suppressed, and the fact that the Tribunal had obtained access to it “calls into question the Tribunal’s impartiality and objectivity in deciding the matter” (at [44]). The representative further submitted that the basis of the claimed risk is to Dr Fattah’s patients, not women generally, and as Dr Fattah was unable to practice as a doctor, and subject to strict bail, there is no risk that he would treat any female patients. She referred to the character witnesses’ attestations that he will not be any threat to anyone within the Australian community.
Tribunal found s.116(1)(e) ground for cancellation exists
At [48] the Tribunal concluded that the decision to cancel the Visa should be affirmed, for reasons it then set out. It identified the relevant ground as s.116(1)(e) of the Act, and the process that the decision maker must follow, which it then followed – first whether the ground for cancellation exists, and then to proceed to consider whether the visa should be cancelled, having regard to all relevant circumstances. It identified the basis for the Delegate’s decision that the ground for cancellation existed as that Dr Fattah had been charged.
Tribunal decision regarding Notice
At [49] the Tribunal rejected the contention that the Notice was invalid as it did not particularise the allegations sufficiently, or that the manner in which the notification occurred requires the Tribunal to set aside the decision. Dr Fattah was advised in the Notice that the reason to cancel his Visa was based on the charges that had been brought by NSW Police. “As the charges had been brought against the applicant and he had already appeared in court in respect of those charges, he would have already received the Court Attendance Notice which provided details of those offences and the Facts Sheet which provided the allegations made against the applicant. The Tribunal provided these details again to the applicant”. At [50] it concluded that the particulars of the information provided had been appropriately provided to Dr Fattah, and he had been provided the opportunity to comment on that information.
The Tribunal rejected the contention that s.117(2) of the Act (which states that a permanent visa cannot be cancelled under s.116(1)) applied to the Visa. It found that Dr Fattah did not hold a permanent visa. Whilst classed as an eligible New Zealand citizen (because he was in Australia as at February 2001), this does not mean that he holds a permanent visa. The Tribunal observed that if the legislature had intended that the provisions of s.117(2) to apply to eligible New Zealand citizens, it would have said so.
At [52] the Tribunal stated that it “has taken into account the fact that Dr Fattah has been charged with multiple offences of a similar nature and the allegations made by the alleged victims as set out in the Facts Sheet.” At [53] it noted that Dr Fattah has not pleaded guilty to the charges, and is defending the matter and that “He has, at this time, not been convicted of any criminal offence”. At [54] it said that the issue before it was not whether Dr Fattah was guilty, but whether his presence in Australia “is or may be, or would or might be a risk” in the sense provided in s.116(1)(e). The Tribunal referred approvingly to the decision of Judge Smith of this Court in Gong v Minister for Immigration & Anor [2016] FCCA 561; 309 FLR 151 at [51], and then stated “The fact is that the applicant has been charged, and an objective assessment of the factual basis for those charges may lead to the conclusion that the applicant may be a risk to the health and safety of a segment of the Australian community.”
The Tribunal continued at ([56]-[59]):
[56] The allegations that have been raised against the applicant which has led him to be charged with various offences are made by 17 different women who were treated by the applicant and his role as general practitioner. There is no information which would indicate that these 17 individuals have colluded in any way to present the allegations made by them or that they were aware of the particular allegations that had been made by the other women. The allegations that are made are similar in that they alleged the applicant rubbed or massaged their clitoris and digitally penetrated their vaginas whilst receiving treatment for matters which would seem unrelated to the requirement for such examination. At no time when these alleged offences occurred was a chaperone or other person present when the applicant conducted the examinations.
[57] The allegations, which form the basis of the charges brought against the applicant, indicate the applicant was involved in multiple opportunistic actions by the applicant for sexual self‑gratification. It is alleged offences occurred on multiple occasions against different women as it was anticipated that the victims would not be aware that they were being abused in this manner by their treating doctor, or that they would be unlikely to make a complaint because of their continuing relationship with their treating doctor, despite any uncertainty they may have had as to whether or not they had been sexually abused.
[58] It was argued that as the applicant has been granted bail in the criminal proceedings and that he is not able to act as a medical practitioner the applicant would not be a risk to anyone, as the alleged victims are not women in general, but only women who were patients of the applicant in his role as general practitioner. The Tribunal does not accept this submission.
[59] Although the allegations that have been made against the applicant have all been made by female patients of the applicant, the Tribunal finds that the presence of the applicant in Australia may be a risk to the health and safety of Australian women in general. The alleged actions of the applicant may be described as opportunistic and, to some extent, uncontrollable. The allegations indicate that the applicant saw an opportunity to engage in a particular behaviour that would give him sexual gratification without the consent or possible knowledge of the victims. Although the applicant may no longer practice as a general practitioner, this does not mean that he would not in the ordinary course of life come into contact with women in the Australian community where he may take the opportunity to engage in behaviour that would constitute an assault. Although this may not be in the manner or to the extent of the conduct that he has been alleged to do as a medical practitioner, the Tribunal finds that the possibility that the alleged activities occurred in the past indicate that the applicant may be a risk to the health or safety of women by engaging in similar behaviour, even though restricted, in the future. (emphasis added)
At [60] the Tribunal mentioned that various statements “of family and friends” have been submitted to the Tribunal, and quoted from some of them, noting that in most of them it is claimed that Dr Fattah could not have committed the alleged offences. The Tribunal said that it has taken into account these statements when considering whether Dr Fattah may be a risk to Australian women, and that Dr Fattah has appropriately exercised his right not to provide further information in respect of those allegations.
At [62] the Tribunal concluded:
[62]After considering all the information as to whether the visa may be cancelled, the Tribunal finds that the charges that have been brought against the applicant based on the allegations that have been made by multiple alleged victims and the similar nature of the allegations that have been made by those alleged victims against the applicant must be given significant weight. When considering all the circumstances, the Tribunal is satisfied that the presence of the applicant in Australia may be a risk to the health and safety of a segment of the Australian community, that being women. [emphasis added]
The Tribunal was satisfied that the ground for cancellation exists (at [63]).
Tribunal’s consideration of discretion
Noting (at [64]) that there are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of discretion to cancel the Visa, the Tribunal then turned to and considered the discretionary factors in determining whether the power to cancel the Visa should be exercised, saying it had regard to the relevant circumstances, including but not limited to matters identified in the Department’s PAM3, ‘General visa cancellation powers’.
Under the subheading “Purpose of travel to Australia” at [65] the Tribunal noted Dr Fattah’s visa category, that he was lawfully in Australia at 2001 and so qualifies as an eligible New Zealand citizen, and has unrestricted work rights although presently cannot work as a medical practitioner due to his bail conditions. At [66]-[67] it referred to the familial statements, and concluded that Dr Fattah retained significant ties with New Zealand community, and his wife’s and son’s primary ties appear to be in New Zealand and not in Australia.
Turning to the degree of hardship, it found at [72] that if Dr Fattah were required to return to New Zealand that this would not cause any hardship to him or his family. It noted that Dr Fattah is not able to depart Australia at this time because he is facing criminal charges, and although granted bail, his bridging visa has been cancelled. It referred to the separate proceedings in relation to that decision and that it had no information as to a likely hearing date. (See above at [7] regarding the outcome of that proceeding and appeals.)
The Tribunal acknowledged that Dr Fattah is likely to remain in immigration detention until the finalisation of the criminal proceedings, but found that this is only of minor hardship and would be less hardship than a person who was refused bail pending any criminal trial (at [74]). I interpose that the Tribunal did not explain how it reconciled this comparison (detention c.f. remand) with the fact that Dr Fattah had been granted bail.
It noted that the applicant exercised his right, “quite correctly”, not to discuss the charges or make comments in relation to them. It rejected the submission that remaining in immigration detention would amount to arbitrary detention, because the detention period was limited to the time Dr Fattah would be required to remain in Australia pending the finalisation of any criminal proceedings (at [78]).
The Tribunal again stated that the test when granting bail and whether the power to cancel the Visa are different (as it had said at [55]), and observed that the fact that Dr Fattah had been granted bail must be given “some weight” (at [80]-[81]), saying at [81]:
[81] The bail conditions are only in place until the finalisation of the criminal proceedings. They impose restrictions on the activities of the applicant including the hours when the applicant is able to be out of his home and restrictions on whom he can associate with. The fact that the applicant has been granted bail and the conditions of that bail are given some weight when considering whether the applicant's visa should be cancelled.
“Other relevant considerations” and NZ Decision
Turning to “Other relevant considerations” the Tribunal then said (at [82]) that Dr Fattah’s statement that he did not have any findings of misconduct in practice against him was correct, juxtaposing that statement with the Department’s (Delegate’s) noting of the proceeding in the NZHPT, and the finding of the NZHPT “that there was not ‘sufficient evidence of genital or internal vaginal examination, or indeed any inappropriate examination’ by the applicant and the charge was dismissed”. It referred to having obtained a copy of the NZ Decision, set out the proceeding number, stated that it had been de-identified, that it had been provided to Dr Fattah, and he confirmed that it related to the complaint made against him in New Zealand. The Tribunal then said (at [84]-[90]):
[84] As set out above, the Tribunal has not placed any weight on the allegations made as set out in this decision when considering whether the visa may be cancelled because the presence of the holder in Australia may be a risk to the health or safety of women. The Tribunal has based that decision solely on the allegations made by the female patients the applicant treated in Australia which led to the charges being brought by the NSW Police.
[85] The applicant provided a statement after the hearing providing further explanation of those proceedings and the allegations that were made against him. The applicant, in part, indicates that he believed that there was a particular nurse who encouraged the complaints to be made and that a difficulty arose in the practice with him being given a notice of dismissal which he appealed and was eventually settled. It was argued that 'neither of these complaints were of a sexual assault nature'.
[86] The Tribunal is not in a position to comment on the basis of the complaints that were made against the applicant which led to the hearing before the NZHPT. The Tribunal does not accept, however, that the complaints were not of the nature of sexual assault.
[87] The allegation raised by the complainant was that she had consulted the doctor after she had returned from a holiday in India with her fiancé and both had experienced severe diarrhoea. She complained that the applicant had felt her groin area then pushed down her pubic bone towards the clitoris and then touched her vagina. She said she thought the examination was 'a little strange'.
[88] In the Tribunal's decision [that is, the NZ Decision] (at 84) the following is stated:
she also emphasised that the examination of itself did not disquiet her; but rather it was that it appeared to be unnecessary giving her presenting complaint and further that the Doctor did not adequately explain to her what he was doing or why. When questioned about how accurately could have perceived that the Doctor was placing two fingers inside her vagina as alleged she said:
"I mean, it's my - you know, you can't see what's going on so when I was talking - when I first started talking about this they asked me to try and be specific. That's my guesstimate for how I felt, I guess is the best way to explain that. I couldn't see his fingers at the time so that's my ...
Q. So correct me if I'm wrong. You couldn't see and this is an estimate of –
A. Yeah, of how it felt at the time."
[89] The Tribunal does not accept that even if the complainant did not believe that she was being sexually abused and thought that the examination of which she complained of conducted by the applicant was only 'a little strange' the Tribunal does not accept [sic] that the complaint was not of an assault which was sexual nature. The circumstances of the alleged conduct of the applicant that then led to the complaint are similar to many of the allegations that have now been made against the applicant in Australia.
[90] The conclusion of that Tribunal [NZHPT] was that it did 'not find there had been sufficient evidence of genital or internal vaginal examination, or indeed any inappropriate intimate examination' by the applicant and the allegation was not found to be made out. The decision goes on to emphasise to the medical profession and to the doctor in this case specifically that examinations of the kind that he was undertaking which involve physical contact anywhere near the genital area, require clear explanation of exactly what is to happen and the reason behind it. Based on the allegations that have now been made against the applicant in Australia, he does not seem to have followed that advice.
The Tribunal concluded with its “Overall assessment” at [91]:
[91] The Tribunal has considered all the circumstances of the applicant and the allegations against him both individually and collectively. The allegations made in Australia are serious and made by a number of different unrelated women alleging assaults conducted in a similar manner. The allegations are similar to that which was bought by a complainant in New Zealand; however, that complaint was dismissed. The most compelling reason for not cancelling the applicant's visa is that he faces a period of detention pending the finalisation of his criminal proceedings. His wife and son continue to live in New Zealand and, it appears, they would remain there even if the applicant's Subclass 444 visa were not cancelled. The applicant would have no difficulty returning to live in New Zealand.
Finding that the grounds for cancelling outweighed any reasons not to, the Tribunal concluded that the Visa ought to be cancelled and affirmed the Delegate’s decision.
Grounds of review
In his substantive application for judicial review, Dr Fattah relies on the following Grounds (without alteration):
(1)The Administrative Appeal Tribunal (AAT) committed an error of law amounting to a jurisdictional error in finding that the ground of cancellation was established.
Particulars:
The AAT considered that the grounds of cancellation did arise under s.116(I)(e)(i) of the Migration Act 1958 (The Act) of applicant's Visa category of subclass TY 444 contrary to the fact that the applicant's visa category was "Protected Special Category Visa" as applicant lived in Australia prior to 26 February 2001 as a New Zealand Citizen.
(2)The AAT's discretionary decision to affirm the cancellation was unreasonable in that it lacked an evidence and logical justification.
Particulars:
(a)The AAT failed to identify a risk posed by the review applicant based on evidence, rather relied on incorrect information in assessing risk to community.
(b)The AAT failed to give weight to the Supreme Court's bail decision in assessing risk to the community.
(c)The AAT failed to consider the stringent bail conditions as safety factor rather than considering it as a risk.
(d)The AAT failed to give reasonable weight to the testimony of several reputable persons in making the decision.
(3)The AAT's decision to cancel the review applicant's visa miscarried in a manner amounting to a constructive failure to exercise jurisdiction because it failed to recognise the visa category which is equivalent to Australian Permanent residence.
Dr Fattah has also raised additional grounds in his written submissions, contending the Tribunal decision was “flawed with jurisdictional errors due to the reasons”, and setting out 17 numbered paragraphs with sub‑paragraphs, and then 52 further paragraphs of “details” in the course of 17 pages (AS). Those 17 numbered paragraphs are as follows (without alteration):
1.At the outset, the Notice of intention to consider cancellation of applicant's “Protected Special Category Visa” (TY444) by the Department failed to comply with Section 119 of the Migration Act 1958 (The Act) – the respected member of AAT failed to take this matter into consideration.
2.The member considered that the grounds of cancellation of visa arise under s116(1)(e)(i) of the migration act 1958 of applicant's visa category as of subclass TY444 contrary to the fact that the applicant's visa category is “Protected Special Category Visa” which is equivalent to permanent residence as the applicant lived in Australia as a New Zealand citizen prior to 26 February 2001.
3.The AAT's decision to cancel the review of applicant's visa cancellation miscarried in a manner amounting to a constructive failure to exercise jurisdiction because it failed to recognise the visa category which is equivalent to Australian Permanent Residence and the grounds were not made out either.
4.Grounds of cancellation “may be a risk for the Australian community or a part of it” cited by the Department were not made out. It is lacking in evidence and logical justification. The respected Member failed to notice that the Department's reasoning for “risk” and “safety” for the Australian community (or part of it) and their actions Page 2 were not in conformity. The Department cancelled TY444 visa of the applicant on 16 October 2017 on the ground that the applicant is a “Risk” to the Australian community or a part there of. Subsequently on the other hand the Department has granted him Bridging E Visa on a ground of appeal to AAT against cancellation with no visa cease date in the existence of all the conditions. The Department granted a Visa (Bridging E Visa) to the applicant on 08 November 2017 with all the current conditions existing including charges, bail conditions, community commitment and supports, past clear criminal history etc. and the applicant had been living in the community without any adverse event or breach of bail condition since his bail on 4 May 2017 and proved himself to be “safe” not a “risk” for the community.
The Department has allowed the applicant to stay in the community since it served the NOICC on 07 July 2017 and subsequently granting Bridging E visa on 08 November 2017 and allowed him to live in the community until 30 November 2017 indicates that they have had no concern with the applicant in terms of “risk” and “safety of the community”. Logical conclusion should be - had the grounds of “risk” and or “lack of safety” been made out they would not have granted visa to the applicant to allow him to saty in the community.
5.The AAT failed to identify a risk posed by the applicant based on evidence, rather presumed risk relying on incorrect information in assessing risks [Ref; document – incorrect info; see CB: 7c)]. The AAT failed to give reasonable weight to the Bail granted with Conditions by the Supreme Court of NSW after assessing risk. At the same time AAT has failed to give reasonable weight to the testimony of several reputable persons in making the decision.
6.In making decision to affirm the Department's decision of visa cancellation, the respected member of AAT has wrongfully used a document as a “fact instance”(Ref; NZHPDT decision).
7.The respected member of AAT has unlawfully procured the document of NZHPDT ( New Zealand Health Practitioners Disciplinary Tribunal) bearing order of name suppression to use it as a fact instance and reference.
8.The respected member has used dismissed charges as a “fact instance”. As per member himself that information played a vital role in making his decision to affirm cancellation. At the hearing the member said “ I will be putting for you the information which would be the reason or part of the reason for affirming the decision under review” (Ref: Pages 3-4; Lines 45- 49 of Transcript of hearing dated 15 February2018). Also similar statement made in the Decision and reasons dated 19 March 2018 (see CB; Decision ).
9.The respected member of AAT has used incorrect information in the document of Decision and Reasons dated 19 March 2018 in affirming the cancellation decision to discredit and undermine applicant's credibility –[Ref: Docu- Incorrect information; see CB: 22a) ].
10.The member has produced a few years old document during the hearing without prior notice/warning to the applicant – rendering the applicant in a difficult situation expecting him to answer questions without giving chance to prepare, which has Page 3 affected the rest of the hearing significantly. During the hearing the member spent significant amount of time around this document. I believe that was a procedural error.
11.The document of decision of affirmation by the AAT member contains self contradictory statements. In the introduction at the hearing he stated that he was going to produce a document which may play a role in full or in part of the basis of his decision making to affirm the cancellation [see Decision Record; CB: 21c) ] – member used NZHPDT's document in the hearing and also in making his decision to affirm cancellation of visa yet denying that it has had no influence in his decision making (Ref: Decision and reasons dated 19 March 2018).
12.The visa cancellation was done under s116 while the applicant was residing in Australia with clean past criminal record, apparently the member's endeavour was in violation of the s117 of the Migration Act 1958.
13.The respected Member of AAT has cited applicant's Supreme Court of NSW's grant of Bail and it's onerous conditions but did not put any weight on it saying the test for “risk” consideration by Supreme Court Bail is “different” from the department's view of risk. However the member here failed to explain why the “risk factors” would be different regarding the same individual involved in the same circumstances, in the same community with all the same other conditions and factors existing.
14.The respected member of AAT failed to consider and give reasonable weight to the following facts in making his decision of affirmation –
a)NZHPDT issue was not a criminal issue, nor a sexual assault issue however the member considered it as such, ignoring the NZHPDT's valuable opinion to the contrary. AAT member is in no way in a position to ignore NZHPDT's opinion and make his absurd conclusion in this regard.
b)existing valid Police clearance certificate from three different countries
c)considerably large number of community members' commitment and support for the applicant
d)failed to put necessary weight on multiple highly credible witnesses.
15.In making his decision the respected AAT member has relied on incorrect conclusions based on incorrect infomation which indicates possibility of member's deviated focus of intention [Ref: docu incorrect info. See CB: 22a) ].
16.Apparently the member's focus was to collect more information in supporting affirmation of visa cancellation decision of the Department as oppsed to relying on information provided by the Department, based on which information Department has cancelled the visa. In doing so member relied on incomplete, inadequate information procured in a questionable manner to strengthen the Department's reasoning and undermining the applicant's credibilty which leaves with doubt of jeopardising the impartiality of the AAT's role in hearing an appeal.
17.Member's role appeared to be more of an auxiliary agent to the Department rather than an impartial body to look at the issue independently.
Mr Liu, counsel for the Minister, submitted that what appear to be the issues and contentions that arise from Dr Fattah’s Grounds and the AS could be grouped into 7 matters. I consider that by this grouping Mr Liu has fairly identified the grounds and issues that Dr Fattah raises. I group the Grounds, and the 17 issues and contentions raised in the AS, as follows (Dr Fattah’s wording is set out in quotation marks):
Issue 1: Whether the Tribunal erred by finding that the ground for cancellation existed under s 116(1)(e)(i) in circumstances where Dr Fattah held a "Special Category Visa" which, according to Dr Fattah, could not be cancelled under that provision, and whether the Tribunal "failed to recognise the visa category which is equivalent to Australian Permanent residence": Grounds 1 and 3; AS [2], [3], [12].
Issue 2: Whether the Tribunal's decision to cancel Dr Fattah 's Visa was unreasonable because it "failed to identify a risk posed by the review applicant based on evidence, [but] rather relied on incorrect information in assessing risk to community"; failed to give "reasonable weight" to the Supreme Court's bail decision and the stringent bail conditions; and failed to give "reasonable weight" to the statements of supporting witnesses: Ground 2; AS [5], [13], [14].
Issue 3:Whether the Notice provided to Dr Fattah failed to comply with s.119 of the Act and whether the Tribunal failed to take this into account: AS [1].
Issue 4: Whether the finding that Dr Fattah may be a risk within the meaning of the ground for cancellation in s.116(1)(e)(i) was "lacking in evidence and logical justification": AS [4].
Issue 5: Whether the Tribunal "unlawfully procured" the NZ Decision and impermissibly used that information in its decision (Dr Fattah contends “wrongfully used a document as a “fact instance”) "without prior notice/warning to Dr Fattah ... without giving [Dr Fattah] chance to prepare": AS [6], [7], [8], [10].
Issue 6: Whether the Tribunal made "self-contradictory statements" in respect of the NZHPDT information. (Dr Fattah further contends that the Tribunal member “in the introduction at the hearing stated he was going to produce a document [the NZ Decision] which may play a role in full or in part of the basis of his decision, … yet denying that it has had no influence in his decision making”): AS [11].
Issue 7: Whether the Tribunal's conduct of the review or its decision suggested it was not "an impartial body [looking] at the issue independently": AS [15]-[17].
Relevant legislative provisions
Sub-section 116(1)(e)(i) of the Act provides that:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: …
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i)the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii)the health or safety of an individual or individuals;
Section 117 of the Act relevantly provides that:
(1)Subject to subsection (2), a visa held by a non‑citizen may be cancelled under subsection 116(1), (1AA), (1AB) or (1AC):
… or
(d)while the non‑citizen is in the migration zone.
(2)A permanent visa cannot be cancelled under subsection 116(1) if the holder of the visa:
(a)is in the migration zone; and
(b)was immigration cleared on last entering Australia.
Section 119 of the Act provides that:
(1) Subject to Subdivision F (non‑citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a) give particulars of those grounds and of the information (not being non‑disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
(4) The other provisions of this Subdivision do not apply to a cancellation:
(a) under a provision other than section 116; or
(b) to which Subdivision F applies.
Proceeding in this Court
As I have stated at [10] above, Dr Fattah appeared at the hearing before me unrepresented but with the assistance of a Bengali interpreter. He conducted his case in English, however, with the occasional assistance of the interpreter.
Prior to the hearing, in accordance with the pre-hearing orders, Dr Fattah filed written submissions, certain pages of the transcript of the hearing before the Tribunal, and 2 statements to the Tribunal made after the decision – as I have identified above, one each from his wife and his son correcting factual errors in the Tribunal’s decision. In those statements Dr Fattah’s wife submitted that the error raised questions of the Tribunal member’s focus and credibility, whilst the son said that the error made it seem like Dr Fattah was not telling the truth.
The day before the hearing Dr Fattah filed a further submission purportedly in reply. He corrected some timing matters in his attempts to file documents, and corrected some timing details of his 2001 residency in Sydney. I have incorporated these corrections in these reasons.
Within the bundle of relevant documents (Court Book) tendered in evidence before me by counsel for the Minister was material before the Tribunal, and earlier, the Delegate. Among that material was a “Court Attendance Notice” recorded as served on Dr Fattah on 7 March 2017 which sets out details of offences, redacted to obscure any reference to the claimants, a document entitled “Facts for the Accused [Dr Fattah]”, which is redacted of any identifying details of the 3 alleged victims, a NSW Police Force “Criminal History – Bail Report” created 20 June 2017, and a NSW Police “Facts Sheet” generated on 8 July 2017 which lists 30 offences as “sexual intercourse without consent Si” and “assault with act of indecency T2”.
The material before the Tribunal relating to the offences of which Dr Fattah was charged – as revealed by the Court Book – is limited to documents created by NSW Police setting out the allegations giving rise to the charges. The material does not include any patient victims’ or other witness’ statements, or statements of any patient or personnel at the medical centre.
The parties submissions and consideration
Dr Fattah submitted that the findings were unsupported by evidence, referring to Minister For Immigration and Citizenship v SZMDS & Anor [2010] HCA 16; 240 CLR 611, that the Tribunal relied on the charges and did not consider the possibility of the risk to eventuate, and referred to the other factors such as bail, bail compliance, and pleading of not guilty. He made submissions about the Tribunal member’s impartiality in his selective use of parts of the NZ Decision, and asserted procedural unfairness in his reference to incorrect information. Dr Fattah also described difficulties he experienced in detention in preparing his defence, and submitted that the Tribunal failed to put reasonable weight on them. Dr Fattah’s oral submissions before me substantially reflected the written submissions of his representative before the Delegate and the Tribunal and drew attention to the inaccurate references to the familial audience. I will refer to other of Dr Fattah’s submissions relating to particular issues in the course of my consideration of the 7 Issues that I have summarised above.
Inconsistencies in the Tribunal decision
First, however, I address some concerns raised by Dr Fattah and his family in evidence, and in his oral and written submissions, about the Tribunal decision.
As I have noted, and as Dr Fattah emphasised, the Tribunal decision sets out several factual inconsistencies between the evidence of Dr Fattah, his wife and his son, which inconsistencies are not substantiated when reference is had to the transcript of hearing, and the witnesses’ statements.
As I have already noted at [34], the reasons of the Tribunal are not to be construed with an eye keenly attuned to the perception of error. The [reviewing] court has no jurisdiction simply to cure administrative injustice or error, nor to engage in merits review of the Tribunal’s decision. I am conscious that the Court must be careful not to intrude into the fact finding function of the Tribunal.
There are, however, several misstatements in the Tribunal’s decision which have troubled Dr Fattah and his family. The Tribunal has erred in recording such matters as the number of years that Dr Fattah’s wife said her husband started living in Australia and reflected in her situation (3 or 2 years – see decision at [35] and [43]), and by stating that his son worked as an accountant rather than in an architectural firm, and as to the son’s qualifications (see decision at [19] and [30]). Having regard to the Tribunal’s decision overall, however, I do not consider that these misstatements were material to the Tribunal’s focus, its consideration of Dr Fattah’s credibility, or its decision. I consider the errors Dr Fattah’s family are concerned about to be matters of looseness of language, or transcription errors. In my opinion the Tribunal’s decision is not founded on, and does not turn on, any of the erroneous facts and the inconsistencies identified by Dr Fattah in the familial evidence as among Dr Fattah, his wife and their son.
Tribunal’s obtaining of NZ Decision (Issue 5)
Although both the Delegate and Tribunal state that the complaint before the NZHPT was made in 2013, in fact it was made in 2012, and was dismissed in 2013. I do not consider that this error is material.
The orders of the NZHPT were that the publication of the name and identifying details of the doctor the subject of the complaint be permanently prohibited, however, a case note about the NZ Decision entitled “Director of Proceedings v Fattah” identifying Dr Fattah, and details of the complaint, was accessible on the NZ HDDP website. The case note had been obtained by the Delegate and the file path to the case note was footnoted in the Delegate’s decision.
Whilst I consider that it is deeply unfortunate that the orders of the NZHPT were traduced in this way by the publication of the case note on the NZ HDDP website, there is no evidence before me that the Department acted in an untoward manner in obtaining the NZ Decision. The transcript of the Tribunal hearing in evidence before me shows that the Tribunal member was able to source the NZ Decision very shortly before the Tribunal hearing, and he suggests, but does not clearly say, that he did so via the internet. The printout of the case note in evidence states that the NZ Decision can be found on a page on the NZHPT website and sets out the URL address of the published decision. It is reasonable to infer, and I do infer, that the Tribunal member located the NZ Decision by entering, or causing to be entered, that address in a web browser.
The Tribunal in its decision says that the NZ Decision identified the doctor only as “Dr H”. The copy of the NZ Decision in the Court Book in evidence is de-identified as the Tribunal states. There is nothing in the material before me to support any claim that the Tribunal unlawfully procured the NZ Decision. Further, the Tribunal has not published the URL of the source website, or the page address. I do not consider that the Tribunal fell into error in rejecting Dr Fattah’s representative’s complaint of the manner of obtaining the Decision.
Documents in the Court Book show that a copy of the case note of the NZ Decision (although not the decision) had been provided by the Tribunal to Dr Fattah’s representative on 16 January 2018, and again on 8 February 2018, before the Tribunal hearing. As I have already noted, after requesting the Tribunal member provide her with a copy of the NZ Decision, the Tribunal member gave Dr Fattah’s representative a copy of the decision during the hearing.
Characterisation of evidence in the NZ Decision (Issue 6)
Dr Fattah complains that the Tribunal had been “self‑contradictory” by on the one hand saying (at [14]) that the information [complaint in the NZ Decision] was going to be the reason or part of the reason why the Visa cancellation decision would be affirmed, and subsequently saying (at [83]-[84]) that it has not placed any weight on the allegations made in the NZ Decision, and that the Tribunal wrongfully characterised complaints as “sexual assaults”.
In this Court (and in a post-decision submission to the Tribunal) Dr Fattah disputes the Tribunal’s characterisation as “complaints” against him of certain material set out in the NZ Decision, and the exchanges and propositions described by the Tribunal at [22]-[27] of its decision. He submits that the subject matter of the NZ Decision was neither a criminal issue, nor a sexual assault issue, by which I understand him to intend that he was not being accused of sexual assault or a criminal offence.
He contends that the Tribunal member treated it as such, ignoring the valuable opinion of the NZHPT. He submits that the complaints referenced in the paragraphs of the NZ Decision upon which the Tribunal placed emphasis (see Tribunal decision at [23] – [26]) are not complaints of a similar fact instance to the charges he faces in NSW, and that they were not established.
Dr Fattah says (as he said in his post-Tribunal hearing statement) that he was subject to the one complaint that was dismissed (the complaint the subject of the NZ Decision), that there was a (separate) complaint by a 59-year old women about her chest and heart examination undertaken by him further to her presenting with a cough and chest pain, and that the same nurse who had spoken to the chest exam patient also convinced the patient who gave evidence to the [NZHPT] to make a complaint to the HD Commission. As the complaints were investigated by the same investigation team at the HD Commission at the same time (which team found he had not committed any misconduct or acted inappropriately and the complaint did not proceed any further), he usually thought of them as the one complaint.
As to the third instance (see Tribunal summary at [42] dot point 2), Dr Fattah could only recall chaperoning policy being discussed when a general reminder about chaperoning policy was given during a weekly clinical meeting to all doctors (that is, in the practice), and that he was not singled out in any way. Whilst he was not sure why the policy was raised at that time, he did “know that it was not because there had been a complaint against me”.
I consider that Dr Fattah’s complaints of confusion and mischaracterisation principally arise from the manner in which the Tribunal member debated with Dr Fattah the information the member put to him during the hearing, and Dr Fattah’s undeviating literality in his understanding and use of English in responding to the Tribunal member.
The Tribunal member took the view that the assertions of the clinical director made when appearing before the NZHPT all related specifically to Dr Fattah and evidenced at least 3 “similar” complaints, and were “sexual assaults” and “sexual [in] nature”. Dr Fattah emphasised that the conduct the subject of complaints in New Zealand were not “a similar fact instance”. I apprehend that the distinctions Dr Fattah makes owe first, that the complaint relating to the chest examination is different in character to the complaint of genital examination, the subject of the NZ Decision, and secondly, that the complaints made in New Zealand did not result in charges being laid/were dismissed and thus they were not “similar” to the allegations resulting in the criminal charges in Australia.
At [22] – [27] of the Tribunal decision, the Tribunal member was describing the course of the hearing before him, what he put to Dr Fattah, and Dr Fattah’s responses. Whilst the Tribunal member considered that Dr Fattah’s response in the hearing undermined his credibility – see at [25] of the decision set out at [42] ‑ [43]above, the Tribunal did not rely on that comment subsequently in its decision. The Tribunal did record Dr Fattah’s clarification given in his post Tribunal submission, see decision at [42].
Whilst there are inaccuracies in the Tribunal member’s recitation of the exchanges between him and Dr Fattah during the hearing, and a difference in opinion whether there was the one complaint or were other “similar” complaints about Dr Fattah that had been made in New Zealand (see above at [43]), I do not consider that those differences between the transcript and the decision in recording the exchanges between the Tribunal member and Dr Fattah, and differences of opinion as to what constituted similar complaints had any material bearing on the Tribunal member’s subsequent consideration in the decision of claims and evidence and his conclusions.
It is apparent from [47] – [63] of the Tribunal decision that in determining that the ground for cancellation existed, the Tribunal had regard to the allegations made by persons in Australia (see at [56]), and not allegations made in New Zealand. I do not find in the Tribunal’s consideration that the ground for cancellation existed any suggestion that the Tribunal’s view of the New Zealand complaints (in the NZ Decision, before the HD Commission, and the chaperone policy reminder), formed any part of the consideration.
When the Tribunal then turned to consider the exercise of discretion, and “other relevant considerations” the Tribunal confined its detailed consideration to the single complaint that was before the NZHPT (see at [85] – [90], and the reference to that complaint in the overall assessment at [91], set out above at [63]-[64]).
Whilst at [85] the Tribunal stated that [it] “does not accept, however, that the complaints were not of the nature of sexual assault”, a fair reading of the subsequent paragraphs of the decision reveal that the Tribunal’s focus thereafter was on the description of the complaint the subject of the NZ Decision (which the Tribunal sets out at [87] – [88]), and not on the chest examination incident.
As to whether or not the allegations referred to in the NZ Decision were of complaints that were or were not of the nature of sexual assault (Tribunal decision at [86]), the Tribunal formed the view that the complaint described at [87] and [88] was of an assault that was sexual [in] nature.
The material before the Tribunal included the descriptions of the New Zealand complaints (including Dr Fattah’s explanations, and the NZ Decision) and the descriptions of the allegations forming the basis of the charges laid against Dr Fattah in the material from NSW Police in the Court Book (see above at [75]). It was open to the Tribunal on the material before it to not accept that the New Zealand complaints were not in the nature of sexual assault. It was within the Tribunal’s fact finding function, on the material before it, to form the view it took of the similarity of the allegations made in New Zealand and those made in Australia which had led to the charges (see decision at [27]). In so doing it was open to it to form a different view of the allegations made by the complainant to the NZHPT in New Zealand than the New Zealand decision makers (see decision at [89]).
It was a matter for the Tribunal as to the weight it gave to the subject matter of the complaint the subject of the NZ Decision. I consider Dr Fattah’s complaint about the Tribunal being self-contradictory further in my consideration Issue 5 and 6 below.
Issue 1
Although his Visa is designated a Class TY Subclass 444 (Special Category) visa, Dr Fattah argues his Visa is a “permanent visa” within the meaning of s.117(2) of the Act, and therefore s.117(2) applies to his case to prevent cancellation of the Visa under s.116(1)(e)(i).
Dr Fattah argues his Visa is a “Protected Special Category Visa”, and whilst the Visa is known as a temporary visa, his status was not that of an ordinary temporary resident. As a New Zealand citizen in Australia on 26 February 2001, he meets the definition of being an eligible New Zealand citizen. He submits that such persons are given equal status to permanent resident visa holders in being able to sponsor family unit members, and under legislation such as the Australian Citizenship Act 2007 (Cth) and the Social Security Act1991 (Cth). Therefore, he says, he is the holder of a permanent visa within the meaning of s.117(2) of the Act.
Section 30 of the Act provides as follows:
30Kinds of visas
(1)A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.
(2)A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:
(a)during a specified period; or
(b)until a specified event happens; or
(c)while the holder has a specified status.
Section 31(1) then provides that there are to be prescribed classes of visas. Subsection (2) then provides that as well as the prescribed classes there are the classes then set out, one of which is: “(a) section 32 (special category visas)”. Section 32(1) and (2) relevantly provide:
(1)There is a class of temporary visas to be known as special category visas.
(2)A criterion for a special category visa is that the Minister is satisfied the applicant is:
(a)a non‑citizen:
(i)who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and
(ii)is not …
The Tribunal addressed Dr Fattah’s arguments about his visa status at [52], as follows:
52.The Tribunal has taken into account the fact that the applicant has been charged with multiple offences of a similar nature and the allegations made by the alleged victims as set out in the Facts Sheet.
It is not in dispute that Dr Fattah is a New Zealand citizen, and holder of an in‑force New Zealand passport. Sections 30 and 32(1) of the Act make clear that Dr Fattah’s Visa – a Class TY Subclass 444 (Special Category) visa granted on 8 December 2016 - was not a permanent visa. First, s.30 provides for alternatives – temporary visas, and permanent visas. As is apparent from its terms, s.32(1) then makes clear the type of visa held by Dr Fattah by providing for “a class of temporary visas to be known as special category visas” (emphasis added), and in succeeding subsections in detailing the circumstances in which a New Zealand passport holder may be eligible for a special category visa under the section. Given the terms of the relevant statutory provisions, the Tribunal did not fall into jurisdictional error in rejecting Dr Fattah’s arguments concerning the characterisation of his Visa. Issue 1 (Grounds 1 and 3 of the Grounds, and AS [2], [3], and [12]) fails.
Issue 2 and Issue 4
Issues 2 and 4 can be addressed together. They concern Dr Fattah’s criticisms of the approach the Tribunal took to the evidence before it. Dr Fattah submits that the Tribunal’s decision to cancel his Visa was unreasonable or illogical on three bases: (issue 2) (i) it failed to identify a relevant risk based on correct evidence, but relied on incorrect evidence, (ii) it failed to give reasonable weight to the bail conditions and supporting witnesses’ evidence, and (by issue 4) (iii) that its finding of risk was illogical – lacking in evidence and logical justification.
I have addressed Dr Fattah’s concerns with the inaccuracies concerning his family’s evidence above at [79] – [81] and the Tribunal’s discussion of the New Zealand complaint above at [87] – [101]. For the reasons I set out there, I reject Dr Fattah’s contention that the Tribunal made its decision on incorrect evidence.
I am mindful that it is not the role of this Court to engage in merits review. The weighing of various pieces of evidence is a matter for the Tribunal: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [33]. The issue before me is not whether or not this Court would form a different view on the evidence, or if it were exercising discretion, than the Tribunal.
In Fattah the Full Court dealt with grounds of legal unreasonableness and illogicality at [42] – [50]. Although the Court was there addressing the reasons of a differently constituted Tribunal, and the decision of the primary judge on judicial review from that Tribunal, the Court’s summary of the principles of legal unreasonableness and illogicality at [45], and what is required for the applicant to show to make good the grounds at [46], are relevant to the issues, argument and material before me. The evidence disclosed in the Criminal History – Bail Report before that Court, and the arguments that having been granted bail on the conditions imposed and that Dr Fattah had not breached those conditions proved that Dr Fattah was not a risk to the community (see Fattah at [47] – [48]), are evidence that was before, and arguments made to, the Tribunal in the present case. I consider that the Full Court’s reasoning in Fattah in the paragraphs I have referenced above relevant to the reasoning of the Tribunal in the present case.
The Tribunal in the decision before me identified the basis of its decision that the ground for cancellation existed at [62] as “all the information” before it that had identified and discussed in the preceding paragraphs [49] – [61]. That identified information was limited to Australia. There was credible evidence of the charges, and the nature of the allegations from the Facts Sheets, Bail Report and Court Attendance record (see above at [75].) In the course of written and oral submissions to the Delegate and Tribunal (as evidenced in the Court Book) Dr Fattah and his representative had confirmed the charges laid, and that he was defending them.
The bail conditions (including varied as to the persons in whose company Dr Fattah could be present) were before the Tribunal, and it referred to them and witnesses’ views that Dr Fattah would not breach them (see at [4], [6], [7], [11], [28], [30], [37], [40], [44]), and addressed them in relation to whether the ground for cancellation existed, at [58] and [59], and in relation to discretion, at [65], [80] – [81].
In relation to whether the ground for cancellation existed, [49] – [61] reveal that the Tribunal took into account the nature of the allegations, that there were multiple allegations from unrelated women, the similarity of those unrelated allegations, that the alleged conduct occurred over a period of time, as I have referred to above, that Dr Fattah had been granted bail and the particular bail conditions, and the statements from supporting witnesses, and Dr Fattah’s and his representative’s submissions. It was a matter for the Tribunal as to the weight it gave the bail conditions and Dr Fattah’s compliance, and the statements of supporting witnesses.
In relation to the exercise of its discretion, the Tribunal considered the evidence before it guided by the matters it identified in PAM3 (see at [64], and following). It weighed the evidence and arguments for and against the exercise of discretion (see at [65] – [90]). Its overall assessment at [91] – [92] reveals that it has brought those circumstances and allegations into its consideration.
The Tribunal was concerned with a possibility of risk. The reasoning of the Tribunal demonstrates a logical connection between the evidence and the inferences that the Tribunal drew: see at [57] – [59] in relation to the ground for cancellation, at [80] – [81] in relation to bail, and [86] – [90] in relation to the allegations in the complaint before the NZHPT, and at [91] in relation to similarity of that allegation and the allegations made in Australia). The Tribunal’s conclusions were open on the evidence.
Dr Fattah additionally submits that the Department acted inconsistently by serving a Notice of intention to cancel and cancelling his Visa but then granting him a bridging visa “with no cease date” on a ground of appeal to the Tribunal and under that visa allowing him to stay in the community. This submission is misconceived. It is to misunderstand the bridging visa which enabled Dr Fattah to lawfully remain in Australia through the process regarding cancellation of his Visa and review by the Tribunal. Although it may not have specified a date on which it ceased, it is incorrect to say that it had no cease date, as it was associated with that process. There is no inconsistent act.
The Tribunal’s analysis at the centre of this proceeding provided more reasons to support its findings than the Tribunal decision in relation to the bridging visa with which the Full Court in Fattah was concerned. The Tribunal decision at issue in the present proceeding considered that Dr Fattah’s actions were “opportunistic” (at [59]). The Tribunal based this finding on evidence of the alleged facts on which the Applicant was charged and conducted an objective assessment of the basis of those factual charges.
At [59] the Tribunal identifies the relevant risk as “a risk to the health and safety of Australian women in general” and not merely a risk to women who were patients of the Applicant in his role as general practitioner. The Tribunal found there was a possibility that the Applicant may be a risk to the health and safety of women by engaging in similar behaviour based on his past conduct. The Tribunal based its findings on the justification that Dr Fattah may “in the ordinary course of life come into contact with women in the Australian community where he may take the opportunity to engage in behaviour that would constitute an assault”.
I agree with, and adopt, mutatis mutandis, the Federal Court’s findings in Fattah that the Tribunal’s findings were not illogical or unreasonable as to lead to jurisdictional error. For the same reasons, the Tribunal’s analysis was logical, and the findings have an intelligible justification and were open to it on the evidence.
For the above reasons, I find that each of Issues 2 and 4, and the Grounds and AS paragraphs to which they relate, fail. No jurisdictional error is established.
Issue 3
Dr Fattah contends by this issue that the Notice provided to him failed to comply with s.119 of the Act and that the Tribunal failed to take this into account.
This contention is misconceived as a matter of law and fact. Even if there was a lack of compliance with s.119 by the Delegate, it "neither destroys the power under s.116(1)(b) [the relevant sub‑paragraph in that case], nor governs the identification of the context of the decision": Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; 143 FCR 314 at [38] per curiam (Hely, Gyles and Allsop JJ). Moreover, as the Full Court stated in Ahmed at [39], the Tribunal's processes in conducting a de novo review cure any procedural defects before the Delegate. This Court does not have jurisdiction to review the decision of the Delegate: see s.476 of the Act.
Further, as a matter of fact, the Tribunal did consider Dr Fattah and his representative’s complaints about the Notice: see at [49]. Dr Fattah was again provided with the details of the Court Attendance Notice, and given an opportunity to respond, including by the making of post‑hearing submissions.
The Tribunal did not fall into error. No jurisdictional error is disclosed by Issue 3.
Issues 5 and 6
Dr Fattah submitted that the Tribunal unlawfully obtained the NZ Decision, and that the Tribunal had been “self‑contradictory” and wrongfully characterised the New Zealand complaints as “sexual assaults”. I have considered and rejected the submissions as to the obtaining of the NZ Decision and the characterisation of the complaints above at [87] – [101].
Mr Liu submits that Dr Fattah appears to be asserting that the Tribunal did not comply with s.359A or s.359AA of the Act because it put the content of the NZ Decision and case note to Dr Fattah, that it asked for responses during the hearing (although noting that the Tribunal member offered an adjournment if required), and that the Tribunal member did not comply with the purpose and spirit of s.359AA, and had made unreasonable use of the NZ Decision.
The Tribunal records the steps it took in informing Dr Fattah of the process under s.359AA at [14], and at [22] - [25] of the information disclosed in the NZ Decision and the case note, and by giving a copy of the NZ Decision during the hearing. I have considered the extracts of transcript of the hearing tendered by Dr Fattah (see above at [36], [38] ‑ [40])
Although the manner in which the Tribunal addressed Dr Fattah’s representative when she asked for a copy of the decision is brusque and pre‑emptory, and could have been more courteous (transcript at pp40-41), having regard to the transcript at pp31-34, I find that the Tribunal complied with s.359AA by giving particulars of potentially adverse information to Dr Fattah and his representative, and informing them of other matters required by s.359AA(1)(a) and (b) of the Act, and at pp40-41 by giving a copy of the NZ Decision, as it records at [23] of its decision. Dr Fattah and his representative were given an opportunity to comment on or respond to that information, and the option of seeking additional time to do so, by the making of post‑hearing submissions, which option was taken up.
At [11] of Dr Fattah’s written submissions, he claims that the Tribunal decision contained self-contradictory statements:
In the introduction at the hearing he stated that he was going to produce a document which may play a role in full or in part of the basis of his decision making to affirm the cancellation [see Decision Record; CB: 21c) ] – member used NZHPDT's document in the hearing and also in making his decision to affirm cancellation of visa yet denying that it has had no influence in his decision making (Ref: Decision and reasons dated 19 March 2018).
Mr Liu submits that the Tribunal’s findings must be read in context and that the Tribunal has not placed any weight on the allegations made in the NZ Decision. I agree with the first submission. I do not agree with the second part of his submission.
I reject, however, Dr Fattah’s submission that the Tribunal was self‑contradictory. First, the Tribunal was complying with its obligations in undertaking the steps it records at [14] and [22] – [25], see also [27]. As I have said above, the Tribunal’s determination at [62], read in context is based on the allegations in Australia. The Tribunal's subsequent statement at [84] is correct. The Tribunal is not being self‑contradictory. Its subsequent analysis and discussion leads to its observation at [90].
Section 359AA provides that the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review. The section does not impose an obligation on the Tribunal to consider the information that is put to an applicant.
I find that the Tribunal complied with its obligations under s.359A and s.359AA. The Tribunal has not fallen into jurisdictional error. Each of Issues 5 and 6 fail.
Issue 7
Mr Liu submitted that reading Dr Fattah’s assertions at AS [15] and [17] beneficially to him, and taking them at their highest, they appear to contend that the Tribunal was not impartial and did not consider the issues independently. He submits that to the extent Dr Fattah alleges apprehended bias it cannot succeed. As Mr Liu submits, any such allegation must be distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69]. He then submits that the evidence does not support any such allegation or meet the tests in Jia Legeng or more recently in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] – [36]; ‑ Authorised reference.
I have discussed above the factual inaccuracies concerning Dr Fattah’s wife and son’s evidence in the Tribunal’s decision (at [30] and [35]), and Dr Fattah’s and his family’s concerns that this raised questions as to the Tribunal member’s focus and attentiveness to the evidence, and that it made it seem like Dr Fattah is not telling the truth.
Additionally, Dr Fattah raised concerns about the Tribunal’s dealings with evidence concerning the reasons Dr Fattah moved to Australia. At [20], the Tribunal observed that Dr Fattah said one of the main reasons for moving to Australia was that the family wanted to arrange a suitable marriage for his son, and as Australia had a larger Bangladeshi community there would be more opportunities in Australia to arrange a match for him. At [38], the Tribunal said that in his post-hearing statement Dr Fattah could not provide an explanation why his wife and son did not refer to this reason for the plan to live in Australia. At [43] it described the wife’s post-hearing statement, but there only partially set out her explanation why she did not mention that reason, the Tribunal member stating: “as she believed that this was less important than the other reasons …”, whilst her statement was that “Finding a suitable wife for [her son] … was for me only a very small reason … To me it was just one small part of having a better life there. That is why I did not mention it specifically …” (emphasis added).
The importance, or otherwise, of Dr Fattah and his family’s motivations in planning to come to Australia, however, do not appear on the face of the Tribunal’s decision to be an operative factor in the decision to affirm the cancellation of the Visa.
It is not disputed by Dr Fattah, as found by the Tribunal at [66] – [67], that his wife and son continue to reside in New Zealand, that he retains significant ties with [the] New Zealand community (sic), and that his family’s primary ties appear to be in New Zealand and not in Australia. The reference to the family’s continued life in New Zealand and future plans Tribunal’s overall assessment at [91] reflects the findings at [66] – [67].
That the Tribunal accepted Dr Fattah’s truthfulness is evident from the decision at [82], that it took into account the familial and friends’ statements of Dr Fattah’s character and reputation is evident from [60] and [61], and [71].
I do not consider that any allegation of apprehended bias is made out. The inaccuracies in the evidence to which Dr Fattah points do not establish any allegation of want of impartiality or any apprehended bias. The conclusions that the Tribunal reached at [66] about Dr Fattah’s family and their connections with New Zealand are not expressed as informed by or dependent upon Dr Fattah’s truthfulness in relation to his son’s qualifications or work experience, or knowledge of his state of health, nor what the son’s qualifications were, or the timing misstated regarding his wife’s evidence, or the family’s motivations in Dr Fattah moving to Australia. I consider that it was reasonably open to the Tribunal, on the evidence before it, to reach those findings.
I find that the Tribunal did not fall into jurisdictional error in relation to Issue 7.
Conclusion
I have concluded that none of the grounds of the application, or the additional numbered grounds and issues are made out. It follows that the application must be dismissed, and the Applicant pay the First Respondent’s costs as fixed, and I so order.
I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date:20 September 2019
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