AMITESH BALI CHAND JAGROOP v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:
VID 199 of 2014
Judges:
DOWSETT, MURPHY AND WHITE JJ
Date of judgment:
23 September 2014
Catchwords:
MIGRATION – appeal from dismissal of judicial review application from Administrative Appeals Tribunal – procedural fairness – whether appellant was denied procedural fairness by Tribunal’s refusal to re-open case to receive evidence – whether appellant was denied procedural fairness by Tribunal’s reference to adverse material to which appellant was not alerted – whether statutory provisions precluded any response from appellant to said adverse material – whether relief would be futile.
SZBYR v Minister for Immigration and Citizenship (2007) HCA 26; [2007]
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123
Case
[2014] FCAFC 123
Decision Date
CaseChat Overview and Summary
The appeal in Jagroop v Minister for Immigration and Border Protection involves the appellant challenging the decision of the Administrative Appeals Tribunal (AAT) regarding the cancellation of his visa under the Migration Act. The appellant argued that the AAT denied him procedural fairness by refusing to reopen the case to receive evidence and by referring to adverse material without alerting him, thereby preventing him from responding. The Federal Court was required to determine whether the appellant was indeed denied procedural fairness and whether the statutory provisions precluded any response from him to the adverse material.
The court found that while the appellant's contention about the Tribunal's refusal to reopen the case was not upheld, the argument regarding the adverse material was valid. Specifically, the AAT's reference to adverse material to which the appellant was not alerted and the statutory provisions that precluded any response from him constituted a denial of procedural fairness. The evident purpose of subsections (6H) and (6J) of the Migration Act is to provide the Minister with an appropriate opportunity to meet the case presented by the applicant, thus avoiding the need for adjournments. However, these provisions also prevent the appellant from responding to the adverse material, which undermines the fairness of the proceedings.
The court concluded that the appeal should be allowed, and the decision of the AAT was quashed. The matter was remitted to the Tribunal for hearing and determination by another Tribunal member. Additionally, the Minister was ordered to pay the appellant's costs of the appeal and the proceedings before the primary judge. This decision highlights the importance of procedural fairness in administrative law and the necessity for decision-makers to ensure that all parties have an opportunity to respond to the material being considered.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders of Marshall J of 29 November 2013 be set aside.
3. In their place there be an order that the decision of the Administrative Appeals Tribunal of 19 April 2013 be quashed, and the matter be remitted to the Tribunal for hearing and determination according to law by another Tribunal member.
4. The First Respondent pay the Appellant’s costs of the appeal and of the proceedings before Marshall J.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
We reject the first of these contentions, but uphold the second. It follows that the appeal should be allowed.THE AAT DECISION In conducting the review, the AAT was required by s 499 of the Migration Act to comply with a direction, known as Direction 55, issued by the Minister for Immigration and Citizenship on 25 July 2012. At one stage, the appellant had disputed that the AAT was bound to comply with this Direction, but that contention was not pursued before this Court. The stated purpose of Direction 55 is to guide decision-makers when exercising the power, amongst other things, to cancel the visa of a person who does not pass the character test (cl 6.1(3)). The general principles contained in cl 6.3 indicate, amongst other things, that a non-citizen who has committed a serious crime should generally expect to be denied the privilege of staying in Australia, but that other circumstances, including the length of time during which the person has been in Australia and the consequences of visa cancellation for minors and other immediate family members, are also relevant factors. Direction 55 identifies some matters as “primary considerations” for decision-makers and some as “other considerations”. The first of the primary considerations is the protection of the Australian community from criminal or other serious conduct (cl 9(1)(a)). Clause 9.1(2) provides:Decision-makers should also give consideration to:(a) The nature and seriousness of the person’s conduct to date; and(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.Clause 9.1.2 requires decision makers to have regard to:The likelihood of the person engaging in further criminal or other serious conduct taking into account:(i) Information and evidence on the risk of the person re-offending; and(ii)Evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence …Hence, an important consideration for the AAT was the prospect of the appellant engaging in further criminal or other serious conduct if he remains in Australia. In considering that prospect, the AAT referred in some detail to the evidence concerning the appellant’s offence and sentence and his release on parole. It then assessed the risk that the appellant may commit further offences or engage in other serious conduct and concluded:[98]In conclusion, I find that the evidence discloses that the nature of harm to individuals or the Australian community should the applicant repeat his violent offending is so serious that even a low risk of that occurring in these circumstances would be unacceptable to the Australian community … [D]espite a number of persons qualified to make a psychological assessment of the applicant finding he had a low risk of recidivism, all of those reports omit the full nature and extent of the applicant’s prior violence history and the very disturbing extent of his propensity to be untruthful. Their value must be diminished as a consequence of those omissions. I find that there remains a real risk that the applicant will re-offend and, taking into account the seriousness of his previous offending, this factor must weigh heavily against allowing the applicant to retain his visa.
Ratio Decidendi
Legal Principle Established
In our opinion, this submission of the appellant should also be upheld.Section 500(6H), (6J) and (6L) of the Migration Act As previously noted, the primary judge considered that subss 500(6H), (6J) and (6L) had the effect that the AAT’s non-compliance with s 39(1) of the AAT Act did not give rise to a denial of procedural fairness. This was because subss (6H) and (6J) in particular precluded the AAT from having regard to any information presented orally, and to any document submitted by the appellant, unless the information and the document had been given to the Minister at least two business days before the AAT’s hearing. This time had already elapsed by the time the AAT came to consider the Nevotti article and the Edney/Bagaric textbook. Accordingly, the Judge considered that, even if the AAT had complied with s 39(1), it could not have had regard to any response of the appellant, with the consequence that the contravention had had no practical effect, and there had been no denial of procedural fairness. The relevant provisions in s 500 are as follows:(6H) If: (a)an application is made to the Tribunal for a review of a decision under section 501; and (b)the decision relates to a person in the migration zone; the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. (6J) If: (a)an application is made to the Tribunal for a review of a decision under section 501; and (b) the decision relates to a person in the migration zone; the Tribunal must not have regard to any document submitted in support of the person's case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section. ... (6L) If: (a)an application is made to the Tribunal for a review of a decision under section 501 of this Act; and (b)the decision relates to a person in the migration zone; and (c)the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1). As can be seen, subss (6H) and (6J) require that a written statement containing the information to be relied upon, and any supporting documents, be given to the Minister at least two business days “before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review”. The evident purpose of these provisions is to give the Minister an appropriate opportunity to meet the case to be presented by an applicant at the hearing in the AAT, and to avoid the necessity for adjournments. This purpose was discussed by Gray J, with whom R D Nicholson and Stone JJ agreed, in Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378 at [25]:The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the eighty-four day time limit for the whole process, laid down in subs (6L).