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Nathanson v Minister for Home Affairs

Nathanson v Minister for Home Affairs

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Case Copied 17 August 2022 79 min read

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HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN AND GLEESON JJ
NARADA NATHANSON APPELLANT
AND
MINISTER FOR HOME AFFAIRS & ANOR RESPONDENTS
Nathanson v Minister for Home Affairs
[2022] HCA 26
Date of Hearing: 10 March 2022
Date of Judgment: 17 August 2022
M73/2021
ORDER
1. Appeal allowed.
2. Set aside the orders of the Full Court of the Federal Court of Australia made on 9 October 2020 and, in lieu thereof, order that:
(a)the appeal be allowed;
(b)the orders of the Federal Court of Australia made on 18 October 2019 be set aside and, in lieu thereof, it be ordered that:
(i) the application for review be allowed;
(ii) the decision of the Administrative Appeals Tribunal dated 4 April 2019 be set aside;
(iii) the application be remitted to the Tribunal to be heard and determined according to law; and
(iv) the first respondent pay the applicant's costs; and

(c) the first respondent pay the appellant's costs.

3. The first respondent pay the appellant's costs.

On appeal from the Federal Court of Australia
Representation
C J Horan QC with A Aleksov for the appellant (instructed by Lawson Bayly)
G R Kennett SC with A P Yuile for the first respondent (instructed by Sparke Helmore Lawyers)
Submitting appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

KIEFEL CJ, KEANE AND GLEESON JJ. The issue in this appeal is whether procedural unfairness by the Administrative Appeals Tribunal ("the Tribunal") in the course of hearing the appellant's application for review of a decision to refuse to revoke the mandatory cancellation of his visa involved jurisdictional error. Following a hearing conducted by the Tribunal, the Tribunal affirmed the decision to refuse to revoke the visa cancellation. As the Courts below recognised, the Tribunal's error in failing to afford the appellant procedural fairness will have involved jurisdictional error only if that failure was material to the Tribunal's decision. Materiality is established if the error deprived the appellant of a realistic possibility of a different outcome[1]. The appellant bore the onus of demonstrating that the denial of procedural fairness was material in this sense[2].
[1]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445 [45]; MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at 449 [2], 462 [85]; 390 ALR 590 at 592, 610; see also Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 134-135 [30]-[31].
[2]SZMTA (2019) 264 CLR 421 at 433 [4]; MZAPC (2021) 95 ALJR 441 at 449 [2]; 390 ALR 590 at 592.
Applying these principles, the appellant discharged his onus of demonstrating that the Tribunal's denial of procedural fairness deprived him of a realistic possibility of a different outcome. That realistic possibility was demonstrable from the record of the Tribunal's decision. Contrary to the conclusion of the majority of the Full Court of…

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

Case: [2022] HCA 26
Decision Date: 17 August 2022

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Nathanson against a decision of the Minister for Home Affairs, which involved the cancellation of his visa. Mr. Nathanson's visa had been mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his failure to pass the character test, stemming from serious criminal offences for which he received a significant prison sentence. He sought to have this cancellation revoked, but a delegate of the Minister decided against revocation. Mr. Nathanson then sought review of this non-revocation decision by the Administrative Appeals Tribunal (AAT). The AAT ultimately affirmed the visa cancellation, and Mr. Nathanson sought judicial review of the AAT's decision in the Federal Court.

The central legal issue before the High Court was whether the AAT's denial of procedural fairness to Mr. Nathanson was material, thereby constituting jurisdictional error. Specifically, the court had to determine when such an error is considered material and what an appellant must demonstrate to discharge the onus of proving materiality. This involved considering whether Mr. Nathanson was required to establish the precise nature of the evidence or submissions he might have presented had the AAT afforded him procedural fairness, particularly in relation to incidents of domestic violence that became relevant to the primary considerations under a ministerial direction.

The High Court reasoned that the appellant had discharged his onus of demonstrating that the AAT's denial of procedural fairness deprived him of a realistic possibility of a different outcome. This realistic possibility was evident from the record of the AAT's decision. The court held that, contrary to the view of the majority of the Full Court of the Federal Court, the appellant was not required to articulate a specific course of action that could have realistically changed the result. The denial of procedural fairness occurred when the AAT failed to give Mr. Nathanson an opportunity to address the relevance of domestic violence incidents to the primary considerations under the ministerial direction, particularly after the Minister raised this issue in closing submissions. The court found that the AAT's characterisation of the appellant's offending as "very serious" was influenced by this evidence, and it was not accepted that the same characterisation would have been reached without it.

Consequently, the High Court allowed the appeal, set aside the orders of the Full Court of the Federal Court, and in lieu thereof, ordered that the appeal to the Federal Court be allowed. The decision of the AAT was set aside, and the matter was remitted to the Tribunal to be heard and determined according to law. The respondents were ordered to pay the appellant's costs.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 9 October 2020 and, in lieu thereof, order that:

(a) the appeal be allowed;

(b) the orders of the Federal Court of Australia made on 18 October 2019 be set aside and, in lieu thereof, it be ordered that:

(i) the application for review be allowed;

(ii) the decision of the Administrative Appeals Tribunal dated 4 April 2019 be set aside;

(iii) the application be remitted to the Tribunal to be heard and determined according to law; and

(iv) the first respondent pay the applicant's costs; and

3. The first respondent pay the appellant's costs.

Background

Background to the litigation

Applying these principles, the appellant discharged his onus of demonstrating that the Tribunal's denial of procedural fairness deprived him of a realistic possibility of a different outcome. That realistic possibility was demonstrable from the record of the Tribunal's decision. Contrary to the conclusion of the majority of the Full Court of the Federal Court of Australia, the appellant was not required to articulate a specific course of action which could realistically have changed the result[3]. It follows that the appeal must be allowed and the matter remitted to the Tribunal for determination according to law.[3]Contra Nathanson v Minister for Home Affairs (2020) 281 FCR 23 at 53 [127].Relevant facts and Tribunal decision The appellant, a citizen of New Zealand born in Zimbabwe, arrived in Australia in 2010 when he was 26 years old. In 2013, the appellant was granted a Class TY Subclass 444 Special Category visa. In 2018, a delegate of the respondent Minister cancelled that visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). Section 501(3A) required the Minister to cancel the visa because the Minister was satisfied that the appellant did not pass the "character test" in s 501(6) of the Act and because the appellant was then serving a sentence of imprisonment on a full-time basis in a custodial institution for offences against laws of the Northern Territory. The particular offences that led to cancellation of the appellant's visa were depriving a person of personal liberty, aggravated assault, stealing and driving a vehicle in a dangerous manner. The objective circumstances of the offences were serious, including in that: the victim was a seventy year old man; the attack was unprovoked and the victim was deprived of his liberty for almost 12 hours during which the appellant threatened the victim's life; and the offending involved the victim in a high speed car pursuit with police. For the offences, the appellant had been sentenced to a total effective period of imprisonment of two years and six months. On 10 January 2019, a delegate of the Minister decided not to revoke the mandatory cancellation of the appellant's visa, pursuant to s 501CA(4) of the Act. In making that decision, the delegate was required to comply with the ministerial direction, made under s 499 of the Act and known as "Ministerial Direction 65"[4]. Ministerial Direction 65 required the delegate to have regard to a range of considerations, set out in Pt C of the Direction, in exercising the relevant discretion. The considerations included three "primary" considerations labelled in the Direction as: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and expectations of the Australian community[5]. In addition, the Direction specified that "other" considerations were required to be taken into account where relevant[6]. The Direction specified, non-exhaustively, five "other" considerations which were labelled: international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed. The Direction explained each of these considerations and, in several instances, specified factors required to be considered in addressing the relevant consideration. The Direction relevantly stated that: both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa; primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations[7]. [4]Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA.[5]Paragraph 13(2) of Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA.[6]Paragraph 14 of Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA.[7]Paragraphs 8(3)-8(5) of Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, KEANE AND GLEESON JJ GAGELER J (dissent) GORDON J EDELMAN J

Ultimately, the Tribunal found that its findings regarding the protection of the Australian community and the expectations of the Australian community weighed strongly in favour of the Tribunal refusing to revoke the visa cancellation. It formed the opinion that the "primary obligations" of protection of the Australian community and the expectations of the Australian community outweighed the other considerations that were in favour of revocation of the decision to cancel the visa, namely, the best interests of minor children, the strength, nature and duration of the appellant's ties to Australia and the extent of the impediments to the appellant if he were removed from Australia. The Tribunal concluded that, having regard to all of the relevant considerations in Direction 79, it would not be appropriate for the Tribunal to exercise the discretion to revoke the mandatory cancellation of the appellant's visa. Primary judgment and identification of the Tribunal's error On 18 October 2019, a single judge of the Federal Court of Australia (Colvin J) dismissed the appellant's application for judicial review of the Tribunal's decision. The primary judge found that the course taken by the Tribunal was procedurally unfair but did not constitute jurisdictional error[12]. [12]Nathanson v Minister for Home Affairs [2019] FCA 1709 at [59]-[62]. More particularly, the primary judge made the following findings. Until the Minister's closing submissions, the Tribunal hearing had been conducted on the basis that the Minister did not rely upon violent conduct by the appellant against his wife or children for the purpose of addressing the consideration of protection of the Australian community and, particularly, the nature and seriousness of the appellant's conduct. Prior to closing submissions, the appellant was not informed of an issue raised by the Minister pursuant to para 13.1.1(1)(b) of Ministerial Direction 79. To the contrary, at the start of the Tribunal hearing, the Tribunal member reassured the appellant that the changes to the Direction were "of minor relevance". The Tribunal did not know what the appellant may have been able to present by way of further evidence and submissions in answer to the Minister's new point. Fairness required the Tribunal to give the appellant an opportunity to address the issue, by presenting further evidence and making further submissions to the Tribunal, before making findings on the point adverse to the appellant. Having failed to give the appellant that opportunity, the Tribunal's subsequent course was procedurally unfair[13].[13]Nathanson [2019] FCA 1709 at [56]. The primary judge also found that the Tribunal's characterisation of the nature of the appellant's offending as "very serious" derived from the Tribunal's consideration of the evidence of domestic violence and did not accept that the same characterisation would have been reached by the Tribunal without regard to that evidence[14].[14]Nathanson [2019] FCA 1709 at [28].

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, KEANE AND GLEESON JJ, GORDON J, EDELMAN J

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