Tuitaalili v MIAC & Anor [2012] HCATrans 222

[2012] HCATrans 222

[2012] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S92 of 2012

B e t w e e n -

MORELI TUITAALILI

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 SEPTEMBER 2012, AT 2.30 PM

Copyright in the High Court of Australia

MR D.A. HUGHES:   May it please the Court, I appear with my learned friend, MS S.V. ALEXANDRE‑HUGHES, for the applicant.  (instructed by Kinslor Prince Lawyers)

MR G.T. JOHNSON, SC:   May it please, your Honours, I appear with my learned friend, MR D.H. GODWIN, for the first respondent.  (instructed by DLA Piper Australia)

GUMMOW J:   There is a submitting appearance from the Tribunal.

MR HUGHES:   Your Honours, the applicant puts forward two propositions why the Full Federal Court’s decision cannot stand.  The first proposition is that when a party makes an express written contention to a tribunal and does not withdraw it then the matter has been raised and has to be considered, even if it is not subsequently referred to in oral argument before the tribunal.  The second proposition is that the Tribunal in this case was bound by an instrument known as “Direction 41” which had the effect that the Tribunal was required to consider the best interests of two Australian children who had a relationship with the applicant and it was required to consider it because it arose on the materials and regardless of whether it was raised in the hearing.  The first proposition is essentially a procedural fairness proposition.  If a contention is put ‑ ‑ ‑

GUMMOW J:   This is a deportation on character grounds, is it not?

MR HUGHES:   Yes, your Honour.

GUMMOW J:   What is the merits point?  Do you have one?

MR HUGHES:   Your Honour, it is an appropriate case for special leave because the Full Federal Court’s decision is that essentially if a written formal pleading is put into a tribunal that formal pleading can be ignored if matters in the formal pleading are not raised in oral argument.  That is a proposition of enormous importance, particularly ‑ ‑ ‑

GUMMOW J:   What is the reality of the relationship between your client and this child?

MR HUGHES:   Your Honour, in the facts in the applicant’s submissions before this Court the material is dealt with at paragraphs 4 to 6 on pages 112 and 113 and it is essentially this.  The applicant had lived with the mother of the two children and in 2008 one of the two children wrote a letter to the effect that she had a close relationship with the applicant and that her younger sister, who was five, saw the applicant as an uncle.  That was the evidence that was before the Tribunal and that the Tribunal did not consider.

BELL J:   To which no submission was directed at the hearing?

MR HUGHES:   At the hearing no, but in the statement and facts of contentions it was agitated that this was an issue that ought to be considered and, indeed, the delegate of the Minister who made the initial decision to cancel the visa referred to the older of the two children and considered her interests in the decision.

BELL J:   But the Tribunal, in conducting its review on the merits, omitted to deal with that matter in circumstances in which no reference was made to it by the applicant?

MR HUGHES:   There was no reference at the hearing.  The evidence that was before the Tribunal was not referred to.  The applicant had put in to the Tribunal, as he was required to, a statement of facts and contentions that listed the issues that he said the Tribunal needed to consider and it included the interests of the mother of the two children.  Your Honour, the precise contention that was in the statement of facts and contentions appears in the application book at page 113.  At the bottom of page 112 under the heading “family ties”, then over the page what was written was:

In addition, the applicant has formed a close bond with the daughters of another former partner –

and then the name of the mother. 

BELL J:   Now, apart from that, what further material was there?

MR HUGHES:   It is set out at paragraph 4 on page 112 of the applicant’s submissions.  There was, amongst the evidence before the Tribunal, a letter from JB, the older sister, where she referred to her relationship with the appellant and also referred to her younger sister, who then was five and who saw the applicant as an uncle.  That was the material before the Tribunal and it is the applicant’s submission that having put the formal contention and it having been considered by the delegate, the failure to consider it was a jurisdictional error and a failure of procedural fairness.

BELL J:   What is the error in the Full Court’s treatment of this ground?

MR HUGHES:   That is at page 90, your Honour.  This is the joint judgment of Justices Flick and Jagot, who formed the majority.  Their Honours set out on pages 90 through 92 five reasons why they considered that the applicant had not raised in any way the issue of the children before the court, despite the express raising of it in the statement of facts and contentions.  The first three reasons essentially deal with the applicant’s conduct in the Tribunal and the fact that the submission was not repeated and the evidence before the Tribunal was not specifically identified.  The applicant’s submission on those points is that it is enough to expressly raise an issue in a formal document to give rise to a procedural fairness requirement that the Tribunal consider the matter.

BELL J:   When you formulate it as a procedural fairness requirement, I am not sure I quite understand the content of the concept that you invoke.  Here the applicant through his solicitor asserts something in, one might say, rather spare terms and then at a hearing, when he has an opportunity to develop that contention, chooses not to.  Now, what is the failure of procedural fairness there that you identify?

MR HUGHES:   Your Honour, the failure is this.  The applicant had a right to have his submissions considered and that right extends to all submissions made, unless withdrawn, and a written submission should not have to be repeated in oral submissions to be considered.

BELL J:   That is hardly a matter of procedural fairness, is it?  You have now identified as a right to have every contention, whether you support it at a hearing or otherwise, considered and I can understand that.  It is just not clear to me that it is a procedural fairness issue. 

MR HUGHES:   Your Honour, it arises from the right to be heard and it is of significance, particularly in the migration context, where a large number of self‑represented applicants will receive a small amount of pro bono advice, which will often involve the drawing up of a court document that is then put to the court or the Tribunal.  Often the applicant will then represent themselves, but will not speak to the court document and this decision essentially means that in that kind of case the Tribunal can just put the court document in the bin and listen to what is being said by the applicant, and only decide the matter on that basis.  It opens a door for submissions, express submissions, to be ignored if not repeated in writing and that is the vice and the error in the Full Court’s reasons, your Honour.

The second proposition relates to their Honours’ fourth and fifth reasons, which deal with an instrument that the Tribunal was bound by known as Direction 41.  That is a direction issued by the Minister and binding on the Tribunal that sets out the manner in which the discretion under section 501 to cancel a visa is to be exercised.  That direction requires that the interests of a child under 18 years of age must be taken into account and in this case the Tribunal had the issue flagged to it in the contention and had material before it that there was a child under the age of 18 years whose interests needed to be taken into account. 

The failure of the Tribunal to take those interests into account was itself a failure to take into consideration a mandatory requirement that the Tribunal was required to consider.  If I could take your Honours to the relevant provision, Direction 41, which is conveniently set out by his Honour Justice Barker at page 96 of the application book, at the top of that page his Honour notes paragraph 10.4 of Direction 41 which:

emphasises Australia’s obligations under the Convention on the Rights of the Child –

and the direction says –

if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision‑makers must have regard to the best interests of the child.

His Honour then goes on to note that it is only a mandatory consideration if the child is under 18 years of age, although there is no question here that the child, KB, was under 18 years of age, and the letter that I have taken your Honours to made it clear on the materials that that was her age. 

The second proposition that the applicant advances is that Direction 41 is directed to the exercise of a discretion not simply for something that the applicant wants, but it is a national interest question about whether or not a visa should be cancelled, taking into account the best interests of children in Australia, regardless of how an applicant might happen to run his case.

The issue that the court is dealing with is the best interests of the children and the national interest of regulating the presence or non‑presence of non‑citizens in Australia, which is the purpose of the Migration Act.  So regardless of the applicant’s conduct in the Tribunal the fact that the interests of a child arose on the materials required the Tribunal to consider, under paragraph 10.4, the best interests of those children in making its decision whether to cancel the visa. 

Now, that is critical, your Honours, because if your Honours go to page 22 of the application book one comes to the final conclusions of the Tribunal.  The Tribunal had weighed the various considerations and got to paragraph 67 and said in the first sentence:

The balancing exercise in this case is particularly difficult.

This was a case that was on the knife edge, and an issue that the applicant had expressly raised was not considered, and an issue that arose on the materials and that the direction required consideration of, not just for the applicant’s sake but for the sake of the best interests of Australian children, had not been considered.

BELL J:   Just in terms on the merits of it, if the Tribunal had turned to consider the evidence that some time earlier JB asserted that her younger sister, KB, saw the applicant as an uncle, given the other material available to the Tribunal in terms of the extent of contact, what is it suggested the Tribunal might have made of that when you speak of the need to consider the interests of an Australian child, there being nothing more before the Tribunal?

MR HUGHES:   Your Honour, what was before the Tribunal was that there were one and potentially two more Australian children with a close connection, not a parental connection but a close family connection with the applicant who, if his visa is cancelled under section 501, will never be able to come back to Australia again.  They will not see him again ‑ ‑ ‑

BELL J:   If I may interrupt you for a moment to direct your attention to the part of the Tribunal’s reasons that you took us to a few moments ago at paragraph 67 on page 22 of the application book, it is there said that the balancing exercise is difficult, and difficult because of:

the likely negative impact on [the applicant’s] mother and son and the possible [e]ffect on his mental health –

of the cancellation of the visa.  One sees there that the difficulty to which you directed our attention is an acute one, having regard to the impact of the decision on the immediate family members.  Is it seriously advanced that the assertion that some years earlier it had been said there was a child who viewed him as an uncle would have tipped that balance?

MR HUGHES:   Your Honour, it is seriously advanced that the Tribunal’s function was to consider not just the best interests of the applicant, but also the best interests of the children, and it did not exercise its jurisdiction unless it considered those matters.

GUMMOW J:   That is the point.  With procedural fairness cases you have to ask yourself at the end of the day what difference would it have made?

MR HUGHES:   Your Honour, it is my submission, firstly, as a matter of procedural fairness it is plain that this was a matter that was on the knife edge and procedural fairness required that this matter be considered and, second ‑ ‑ ‑

GUMMOW J:   It is not a knife edge in the way that Justice Bell has been taking up with you at paragraph 67.

MR HUGHES:   Your Honour, I can only repeat the first sentence at paragraph 67, that the balancing exercise has been difficult.

GUMMOW J:   That is your problem.

BELL J:   That is your problem, in circumstances where no evidence, no additional material respecting the other child was advanced on the occasion when there was the opportunity to do so, in circumstances where the Tribunal acknowledges the impact on those who it sees are directly affected by the decision.

MR HUGHES:   Your Honour, there remains the point of general principle that an express position that has been advanced ought to be considered and, if not considered, was a jurisdictional error and, secondly, that Direction 41 required, not just for the applicant, but for the children, that this matter be considered, and that there is a jurisdictional error if it is not considered.  May it please the Court.

GUMMOW J:   We do not need to call on you, Mr Johnson.

We see no basis for making out a case of error on the part of the Full Court of the Federal Court in this case.  Special leave, accordingly, is refused with costs.

MR JOHNSON:   Yes, the first respondent seeks an order for costs.

GUMMOW J:   The Court will now adjourn to reconstitute.

AT 2.47 PM THE MATTER WAS CONCLUDED