Mohamed v Minister for Immigration and Citizenship
[2025] FedCFamC2G 924
•16 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mohamed v Minister for Immigration and Citizenship [2025] FedCFamC2G 924
File number(s): SYG 1711 of 2021 Judgment of: JUDGE D HUMPHREYS Date of judgment: 16 June 2025 Catchwords: MIGRATION – Administrative Appeals Tribunal – cancellation of a Spouse (subclass 820) visa and Bridging A (subclass 010) visa – where the applicant had previous criminal conviction charges – suppression order made in regard to a s 359A letter – whether the Tribunal failed to comply with the requirements of s 359A – whether the Tribunal denied the applicant an opportunity for a physical hearing – no jurisdictional error made out – application dismissed with costs. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 230, 231, 232
Migration Act 1958 (Cth) ss 116(1)(e), 359A, 360, 376
Migration Regulations 1994 (Cth)
Cases cited: Gong v Minister for Immigration and Border Protection [2016] FCCA 561
Minister for Immigration and Border Protection v Dhillon)(2014) 227 FCR 525; [2014] FCAFC 157
SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712
SZNNE v Minister for Immigration & Citizenship [2010] FCA 194
Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of hearing: 27 May 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Counsel for the First Respondent: Mr Johnson Solicitor for the First Respondent: HWL Ebsworth Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1711 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHMED MOHAMED ZAKI ABDELRADY MOHAMED
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
16 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The application is dismissed.
3.The applicant is to pay the First Respondent’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of the (then) Administrative Appeals Tribunal’s (“the Tribunal”) decision dated 22 June 2020 affirming two decisions of a delegate of the Minister for Home Affairs (“the delegate”) to cancel the applicant’s Spouse (subclass 820) visa (“the spouse visa”) and the applicants Bridging A (subclass 010) visa (“the bridging visa’).
For the reasons outlined below, the application should be dismissed.
BACKGROUND
The applicant is a citizen of Egypt.
On 18 May 2018, the applicant applied for the spouse visa on the basis of his Australian marriage to Ms N.
On 28 May 2018, the applicant was granted the bridging visa.
On 7 December 2018, the applicant was granted the spouse visa.
On 8 January 2019, the Department of Home Affairs (“the Department”) sent the applicant a letter inviting him to comment on adverse information the Department had received, that his relationship with Ms N had ended.
On 28 March 2019, the applicant sent an email to the Department that did not respond to the Department’s invitation to comment.
On 14 May 2019, the Department sent the applicant a Notice of Intention to Consider Cancellation of his visa (“NOICC”) under s 116(1)(e) of the Migration Act 1958 (Cth) (“the Act”). In the NOICC the Department advised the applicant that it had received information that he had been charged with several offences pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The NOICC advised the applicant that he may be a risk to the safety of an individual or individuals, and that it appeared that grounds existed to cancel the spouse visa.
On 28 May 2019, the applicant responded to the NOICC.
On 10 June 2019, the delegate decided to cancel the applicant’s spouse visa.
On 18 June 2019, the applicant applied to the Tribunal for review of the delegate’s decision to cancel the spouse visa.
On 12 June 2019. a separate NOICC was sent to the applicant in relation to the prospective cancellation of his bridging visa.
On 26 June 2019, the applicant, through his representative, responded to the NOICC in relation to the bridging visa.
On 10 July 2019, a delegate cancelled the applicant’s bridging visa under s 116(1)(e) of the Act.
On 19 July 2019, the applicant applied to the Tribunal for review of the delegate’s decision to cancel the applicant’s bridging visa.
On 24 April 2020, the Tribunal invited the applicant under s 359A of the Act to comment on information, which was provided to it in a file from the Department, that the Tribunal considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review.
The Tribunal informed the applicant that the particulars of the information from the Departmental file form was as follows:
·That applicant was still married to his claimed previous wife, Mrs Mohamed in Egypt and his relationship with her was continuous.
·That applicant entered into a relationship with his former sponsor so he could secure a permanent visa and bring his previous wife Mrs Mohamed and his daughter to Australia.
·That the applicant’s relationship with the sponsor had ceased.
·That the applicant had an Apprehended Violence Order (AVO) taken out against him by his former sponsor in December 2018 at Liverpool Police Station.
·That the applicant had made inquiries into the submission of a fraudulent protection visa based on fabricated information and/or documentation to remain in Australia if his Partner visa was cancelled.
·That the applicant had physically assaulted both his former sponsor and her daughter on multiple occasions.
The Tribunal wrote to the applicant that the consequence of this information being relied upon in making its decision was that it would lead to a finding that the ground for cancelling his visa exists and the Tribunal, after taking into account his response and the considerations as to whether to cancel his visa, would be satisfied that the reasons for cancelling his visa outweighed the reasons not to cancel his visa.
The applicant was invited to give comments on or respond to the above information in writing. The applicant was informed that his comments or response should be received by May 2020. The applicant was informed that if he could not provide his written comments or response by 8 May 2020 then he could request an extension of time in which to provide the comments or response. The Tribunal pointed out that if he was making such a request then it must be received by the Tribunal before 8 May 2020, and he must state the reason why the extension of time is required.
A certificate had been issued by the delegate under s 376 of the Act purportedly restricting the Tribunal from disclosing certain information in the Departmental file from his Partner visa application on the basis that disclosure of the material would be contrary and injurious to the public interest because disclosure would enable a person to ascertain the existence or identity of a confidential source of information.
The Tribunal considered that the certificate contained a valid ground of public interest immunity not to disclose the information.
On 24 April 2020, the Tribunal wrote to the applicant informing them of the existence of the s 376 certificate on the Departmental file of his Partner visa application. A copy of the certificate was provided with the Tribunal’s correspondence.
In this correspondence, the applicant was invited to comment on or make submissions on the validity of the certificate and also to seek a favourable exercise of the Tribunal’s discretion to disclose the material by 8 May 2020.
On 6 May 2020, the applicant, through his representative, wrote to the Tribunal requesting an extension of time to respond to the Tribunal’s s 359A and s 376 correspondence of 24 April 2020. The Tribunal agreed to the request.
On 8 May 2020, the Tribunal, with the applicant’s approval, agreed to have the Tribunal’s review and hearing for the spouse visa cancellation heard concurrently with his bridging visa cancellation.
On 18 May 2020, the applicant was invited to appear by telephone at a hearing to give evidence and present arguments relating to the issues in his case on 3 June 2020.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal was satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant appeared before the Tribunal by telephone on 3 June 2020 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
On 22 June 2020, the Tribunal made the decision to affirm the respective delegate’s decision to cancel the applicant’s spouse visa and the applicant’s bridging visa.
THE TRIBUNAL’S DECISION
At [27], the Tribunal set out the grounds for cancellation of a visa under s 116 of the Act and the applicable case law.
Relevantly, at [28], the Tribunal outlined that a visa may be cancelled under s 116(1)(e) of the Act if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.
The Tribunal placed reliance on the case of Gong v Minister for Immigration and Border Protection [2016] FCCA 561, at [41], stating that there does not have to be any direct, solid or certain foundation before the power to cancel a visa can arise, it can arise on the possibility that some event occurred in the past.
In construing the meaning of the phrase ‘good order of the Australian community’, the Tribunal placed reliance on the case of Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80 at [94], stating that it contains a public order element and concerns activities which have an impact on public activities, or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.
At [30], The Tribunal noted that the applicant had been charged with nine separate offences, all of which it considered serious and involved alleged violent behaviour towards individuals in a domestic violence sense. The alleged behaviour pertained to the applicant’s spouse visa sponsor and her children during 2018.
At [36], the Tribunal noted that on 24 September 2019 the applicant had been convicted in the Liverpool Local Court of four of the nine charges. These convictions were for:
· common assault (DV) charge 2: between 1 August and 30 September 2018 the applicant dragged the sponsor’s child by holding her arms and hair towards the garage of the house. The applicant told the sponsor’s child he would lock her in the garage without food for the day.
· common assault (DV) charge 4: in November 2018 the applicant pulled the hair of the sponsor’s child and subsequently made verbal threats to the sponsor when she confronted him over the matter.
· common assault (DV) charge 7: in December 2018 the applicant struck the sponsor’s child three or four times about the head and back with a cushion after an argument about her presence in the garage.
· common assault (DV) charge 8: on 26 December 2018 the applicant and the sponsor’s child began arguing at the dining table where the applicant seized the pole of a vacuum cleaner and struck the sponsor’s child’s head twice.
At [45], the Tribunal summarised the applicant’s explanation for the background and cause of his criminal convictions as the following:
Essentially, he claims he is the victim of a complicated conspiracy of the sponsor, the sponsor’s mother, the sponsor’s former husband and his own former wife in Egypt in manufacturing allegations that have destroyed his life. The applicant denies he committed any of the actions for which he was charged, pleaded guilty to and was convicted of.
At [46], the Tribunal noted that the applicant made numerous allegations concerning his former sponsor and her motivations towards himself. The applicant made a number of claims that he essentially asserted that the assaults for which he was charged had never occurred and he was not a risk to the health or safety of the sponsor and her children.
At [50], the Tribunal noted the applicant claimed that the fact that the sponsor made various allegations to the Police in relation to his behaviour, whilst he was offshore in Egypt, spoke to the falsity of such accusations.
At [54], the Tribunal further noted that at the hearing the applicant claimed his former sponsor was being assisted by his former wife in Egypt in the making of false allegations against himself.
At [56] – [58], the Tribunal noted that the applicant denied he committed any of the events for which he was charged and convicted and stated that he had never had any adverse interaction with the law in either Egypt or Saudi Arabia. Further, the applicant raised in his oral testimony statements attesting to his good character from a number of friends in Australia.
At [63], in response to the applicant stating, “he didn’t get to say everything he wanted to say”, the Tribunal noted that the hearing went for almost five hours, and that the applicant was provided ample time to make submissions prior to the hearing. The Tribunal further noted the applicant only provided submissions an hour prior to the hearing itself. As such, the Tribunal formed the view that the applicant had been provided with more than an adequate opportunity to make his submissions.
At [64], the Tribunal did not accept the applicant’s central claim that the allegations that were made against him are the result of a conspiracy involving the sponsor, her family or his former wife.
Further, at [64], the Tribunal found that the allegations of domestic violence over a period of time together with criminal convictions for common assault (Domestic Violence) and the issuance of a two-year Final Order Apprehended Violence Order were sufficient to satisfy it that the applicant may have been a risk to the health or safety of the sponsor and her children.
At [65], the Tribunal noted that under s 116(1)(e)(ii) of the Act it needs to be satisfied that the applicant’s presence in Australia ‘is or may be’ a risk to the safety of an individual or individuals. The Tribunal noted the level of satisfaction required of ‘may be’ is lower than ‘is’ and consequently the cancellation ground can exist if there is a possibility that the person may be a risk. The Tribunal considered that s 116(1)(e)(ii) did not therefore require a finding of guilt or a conviction in order to be enlivened. The Tribunal noted that in the circumstances of this case, the applicant had nevertheless been convicted of criminal charges involving the committing of acts of physical violence in the family home. As such, on the evidence before it, the Tribunal was satisfied that grounds existed to cancel the applicant’s Partner (Subclass 820) visa and the applicant’s Bridging A(Subclass 010) visas under s 116(1)(e)(ii) of the Act. The Tribunal was satisfied that the applicant may have been a risk to the sponsor and her children.
However, as s 116(1)(e)(ii) of the Ac did not require mandatory cancellation under s 116(3) of the Act, the Tribunal proceeded to consider whether the applicant’s visas should be cancelled.
At [67], the Tribunal noted that there are no matters specified in the Act or Migration Regulations 1994 (Cth) (‘the Regulations’) that must be considered in the exercise of the discretion to cancel a visa. The Tribunal had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
At [75], The Tribunal accepted that the applicant would prefer to remain in Australia. The Tribunal were nevertheless on balance satisfied that the applicant did not have a compelling need to travel to or remain in Australia. On the evidence before it concerning the purpose of the applicant’s travel and stay in Australia and whether the applicant had a compelling need to travel to or remain in Australia, the Tribunal weighed this factor in favour of cancelling the applicant’s visas.
At [77], The Tribunal noted that there were no conditions attached to the applicant’s Partner and Bridging visas. The Tribunal weighed this factor neither in favour nor against cancelling the visas.
At [105], The Tribunal considered all the evidence before it pertaining to the hardship that would result on the applicant and his family in Egypt as a result of the cancellation of the applicant’s visas. The Tribunal did not consider these to be compelling reasons not to cancel the applicant’s visas in the circumstances of the review. The Tribunal accepted on the evidence before it that the applicant would prefer to remain in Australia. The Tribunal considered the hardship that would be caused to the applicant himself should his visa be cancelled to be limited. The Tribunal considered the very limited evidence that had been submitted pertaining to the applicant’s mental and psychological health and treatment, and ultimately remained sceptical of the applicant’s overall claims, and as a result gave them little positive weight. The Tribunal furthermore noted that should the applicant’s Bridging Visa A be cancelled, as an alternative to detention, the applicant may have been able to apply for a Bridging Visa E.
At [106], The Tribunal had considered the degree of hardship that may be imposed on the applicant. Whilst the Tribunal accepted there would be a very limited degree of psychological and mental hardship on the applicant, the Tribunal gave his claims concerning hardship in relation to his employment, finances and family little weight. The Tribunal had weighed the various claims that had been made in relation to the degree of hardship that would be caused to the applicant and weighed this factor very slightly against cancelling the visas.
At [130], the Tribunal considered the applicant’s blanket denial of the charges that resulted in the delegate finding that he is, or may be, or might be, a risk to the health or safety of his wife (the sponsor) and her children. The Tribunal had considered the applicant’s submissions and submitted evidence which the applicant claims is evidence that the events as claimed never occurred and instead he is the victim to a conspiracy involving the sponsor, her former husband, his former wife and the sponsor’s family. The Tribunal did not accept the applicant’s claims as to the circumstances in which the ground for cancellation arose. The Tribunal noted that the applicant was convicted of four charges of common assault (Domestic Violence). The applicant had a two-year Final Order apprehended violence order prohibiting him from approaching the sponsor and her children. The applicant admitted at the Tribunal hearing that he had breached an earlier AVO and contacted the sponsor (for which he was found guilty but not convicted). As a result, the Tribunal gave significantly greater weight to this evidence rather than the largely unsubstantiated and discombobulated claims of the applicant.
At [131], the Tribunal stated that the applicant had explained to the Tribunal the background to the convictions and his recollection of events, and having taken all the evidence into account, the Tribunal weighed the circumstances in which the ground for the cancellation arose strongly in favour of cancelling the visas.
At [132], The Tribunal considered the past and present behaviour of the applicant towards the Department. The decision record the applicant provided indicated that the applicant responded to the Notice of Intention to Consider Cancellation (NOICC) and had actively engaged in the cancellation consideration process. As such, on the evidence before it, the Tribunal weighted this factor slightly against cancelling the visas.
At [133], the Tribunal noted that the applicant confirmed at the hearing there are no dependent visa holders as part of his visa. The Tribunal therefore found that there will be no consequential cancellations under s 140 of the Act if the visa were to be cancelled. The Tribunal weighed this factor neither in favour nor against cancelling the applicant’s visas.
At [134], the Tribunal noted that the applicant would become an unlawful non-citizen if his visas were cancelled and as such may be liable for detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. The Tribunal considered that indefinite detention is a possibility if his visas was to be cancelled. The applicant may have also been subject to an s 48 bar which would have limited his options in applying for further visas in Australia. Depending on the visa applied, the Tribunal noted that the applicant would be subject to Public Interest Criterion 4013 of Schedule 4 to the Regulations as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances. On the evidence before it, the Tribunal weighed this factor slightly against cancelling the visas.
At [135] – [136], the Tribunal was not aware of any international obligations which would be breached as a result of the cancellation of the visas, and as such the Tribunal weighed this factor neither in favour nor against cancellation of the visas.
At [140] – [141], the Tribunal noted that the cancellation of the applicant’s visas would not result in either a separation of the family unit or the separation of the children from either parent, and as such the Tribunal weighed this factor neither in favour nor against cancelling the visas.
At [142], The Tribunal took into account the applicant’s claims pertaining to volunteering. The Tribunal gave this claim no positive weight as there was no evidence that the applicant has ever actually undertaken any of the claimed volunteering efforts or had joined and actively participated in any of the organisations he had claimed to join. The Tribunal noted that even if the applicant had, it would not have necessarily negated the risk he may be to the health or safety of the sponsor and her children. The Tribunal weighed this factor neither in favour nor against cancelling the applicant’s visa.
In light of the reasoning above and considering the circumstances as a whole, the Tribunal concluded at [147] that the applicant’s visas should be cancelled.
PRELIMINARY ISSUE
At the commencement of the hearing the Court first dealt with an application seeking a suppression order pursuant to s 230, 231 and 232 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) for the suppression of certain documents that had been provided to the Court in a sealed envelope.
These documents were inspected by the Court. It was noted they appeared to be the documents that the s 359A letter sent to the applicant was based on. The applicant was reminded of the material set out at [7] of the Tribunal decision and asked if he consented to a suppression order being made. He stated that he did not object. Accordingly, the Court made the suppression order sought by the respondent.
GROUNDS OF JUDICUAL REVIEW
The applicant advances two grounds of judicial review contained in an Originating Application filed on 25 January 2021. They are as follows (less particulars):
1.The Tribunal has breached section 359A of the Migration Act by failing to provide clear particulars of material contained in the Department File or to explain why it was relevant to the review due to the misapplication of section 376 of the Act.
2.The Tribunal has breached section 360 of the Act by failing to give the applicant an opportunity to give evidence and present arguments at a face-to-face hearing.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court that he did not understand the law. When he entered Australia, Mrs N had handled all the paperwork. When he left Australia in December 2018, there was nothing wrong. It was only when he came back those issues arose.
The applicant was taken to Ground one of the Initiating Application, and asked what, if anything, he wanted to say in respect of it. He stated that he did not get a face-to-face hearing and as a result was unable to make submissions in respect of the paperwork he had to support his application. He claimed he could not explain or give documents in advance of the hearing.
At the conclusion of the respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. He answered that while documents were discussed he did not get the chance to explain what they meant.
THE FIRST RESPONDENT’S SUBMISSIONS
Ground One
The first respondent submits that the applicant does not articulate how the Tribunal failed to comply with s 359A of the Act. The Ground as formulated is meaningless in the absence of particulars.
It was submitted that it is clear from the s 359A letter issued on 24 April 2020 to the applicant, that the Tribunal identified the information that it considered would be the reason or part of the reason for decision, it explained why the information was relevant to the review, and the consequences of it being relied on in affirming the decision that was under review. Further, the s 359A letter invited the applicant to comment or respond to the information outlined in the letter (CB 270).
The first respondent submitted that the letter advised the applicant that the information is relevant to the review as it:
a) discloses that you may have entered into a contrived relationship for migration purposes;
b) suggests you were never in a genuine and continuing relationship with the sponsor, or you are no longer in a relationship with your sponsor now, at the time the Tribunal is considering your cancellation;
c) suggests you may be engaged in behaviour to deliberately deceive the Department in relation to your personal situation, and
d) suggests the grounds for cancellation of your visa may exist on the basis that your presence in Australia is or may be, or would or might be, a risk to the health or safety of an individuals or individuals [sic] including your former sponsor and her child.
It was further submitted that the s 359A letter stated the consequences of the information being relied on as “lead[ing] to a finding that the ground for cancelling your visa exist and the Tribunal, after taking into account your responses and the considerations as to whether to cancel your visa, would be satisfied that the reasons for cancelling your visa outweigh the reasons not to cancel your visa” (CB 271).
Additionally, the first respondent filed an affidavit with a confidential exhibit, that being the document from which the adverse information was taken from, in order for the Court to be satisfied that the Tribunal complied with s 359A(1) of the Act.
Ground Two
The first respondent submits that the applicant’s assertion, that the Tribunal breached s 360 of the Act by conducting the hearing by means other than face-to-face, is without merit.
Section 360 of the Act does not specify the manner in which the Tribunal is to take evidence from an applicant, rather it requires that the applicant have an opportunity to appear before it, to give evidence and to present arguments: SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 (‘SZJTK’) at [23].
The first respondent noted that s 366 of the Act is as follows:
1)For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
a) telephone; or
b) closed‑circuit television; or
c) any other means of communication.
2)If, when a review is in public, a person appears or gives evidence by a means allowed under subsection (1), the Tribunal must take such steps as are reasonably necessary to ensure the public nature of the review is preserved.
Further it was submitted the s 366 of the Act is an “enabling provision”: SZJTK at [25].
Thus, s 366 of the Act gives the Tribunal a discretionary power to allow an applicant to appear before it by one of the methods prescribed in the provision: Minister for Immigration and Border Protection v Dhillon) (2014) 227 FCR 525(‘Dhillon’) at [28].
The Tribunal complied with its obligation under ss 360 and 360A of the Act by inviting the applicant to appear before it to give evidence and present arguments. At no time, and mindful of the fact that the applicant was assisted on the review by a Migration Agent, did the applicant indicate to the Tribunal that he objected to the Tribunal proceeding to take evidence from him by means of a telephone hearing: SZNNE v Minister for Immigration & Citizenship [2010] FCA 194 at [49]. Further there were not any circumstances evident to the Tribunal that might have suggested that such a process would be unfair to the applicant: SZJTK at [26].
Contrary to what appears to be the applicant’s argument, he had no “right” to appear in person before the Tribunal, and in fact the Tribunal has no obligation to conduct a hearing in any particular way.
In the present case, there were obvious reasons for why the Tribunal invited the applicant to appear by telephone, and as the Tribunal informed the applicant, they were that “the AAT has [had] not been holding face to face (in person) hearings since Monday, 23 March 2020 and is [was] currently closed to all visitors until further notice” (CB 311).
As such, it was open to the Tribunal to conduct a hearing by telephone, there was an evident and intelligible justification for it proceeding in that way. The applicant has not articulated how he was denied a real and meaningful hearing, and therefore no error is made out.
CONSIDERATION
Ground One
Ground one is a complaint that the Tribunal breached s 359A of the Act by failing to provide clear particulars of the material contained in the departmental file or explain why it was relevant to the review due to the misapplication of s 376 of the Act. No particulars are provided as to the basis upon which the Tribunal failed to provide clear particulars of the adverse information. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
At [6] - [7] the Tribunal records that on 24 April 2020 it wrote to the applicant setting out the information which was adverse to him. The applicant was invited to give comments by 8 May 2020. The Tribunal also advised the applicant of the existence of a s376 certificate.
At [16] the Tribunal records that it agreed to a request from the applicant’s representative for an extension of time to respond to the material contained in the s 359A and S 376 notifications to the applicant. Further, the applicant did not seek a favourable exercise of the Tribunal discretion to disclose the material.
I am satisfied that the Tribunal’s letter to the applicant, pursuant to s 359A, complied with all statutory requirements and in particular, disclosed the information that was relevant to the review. I have perused the confidential exhibit that was provided to me for which the adverse material was taken, and I am satisfied that the Tribunal completely complied with s 359A(1). Ground one has no merit.
Ground Two
Ground two is a complaint that the Tribunal breached s 360 by holding a telephone hearing that denied the applicant the opportunity to give evidence and present arguments face-to-face. It is suggested this was an ad hoc procedure that denied the applicant an opportunity to gain a favourable credit finding by way of demeanour.
Firstly, the Tribunal sets out at [21] that the hearing was held during the COVID- 19 pandemic, and in these circumstances purpose satisfy the up applicant was given a fair opportunity to give evidence and present arguments. At the hearing, he was represented by a Migration Agent. A perusal of the Tribunal’s reasons indicates that he had heard extensive evidence from the applicant which is set out in the Tribunal’s reasons. For example, The Tribunal noted at [45] that the applicant went into great, and at times, baffling detail over a significant time at the Tribunal hearing explaining the background detail of his claims of a conspiracy against him by the sponsor, the sponsors mother, the sponsor’s former husband and his own former wife.
At [63] the Tribunal noted the hearing before it went for almost five hours.
As noted by the respondent, there is no right to a face-to-face hearing, with s 366 empowering the Tribunal to conduct hearings by telephone: s 366(1)(a). Noting that the hearing took place during the COVID-19 pandemic, I am satisfied this was a reasonable alternative and was a proper exercise of the Tribunal’s discretionary power to allow the applicant to appear before it in one of the methods prescribed by the section: Dillhon at [28]. The Tribunal’s reasons at [21] properly set out the basis for the exercise of the discretion to hold a telephone hearing. I am satisfied there was nothing illogical irrational or unreasonable on the part of the Tribunal and exercising the discretion in the manner that it did.
In the circumstances of this case, I am more than satisfied that the applicant received a fair hearing and was not disadvantaged by the fact it was not conducted face-to-face. The applicant was represented by a Migration Agent, and he had an opportunity to provide prehearing submissions. The Tribunal has faithfully recorded the extensive matters put forward by the applicant and any adverse credit findings, in my view, were not based upon the fact that the applicant was not physically present at the hearing. The adverse credit findings arose from the very nature of the applicant’s claims and his evidence.
In his oral submissions, the applicant complained that he was denied the opportunity to discuss the details of the documentary evidence he provided to the Tribunal in advance of the hearing. I do not accept the submission. The hearing in this matter went for some five hours, and in those circumstances, it is difficult to understand what opportunity was missed. Ground two has no merit.
DETERMINATION
As the applicant is unrepresented, I have perused the Tribunal decision, and the Court Book, but I am unable to ascertain any articulated jurisdictional error. The application must be dismissed.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 16 June 2025
0
6
3