FEDERAL COURT OF AUSTRALIA Puafisi v Minister for Immigration and Citizenship [2008] FCAFC 39 Migration Act 1958 (Cth), ss 501(6)(a) and (7), 502(2) Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Lidono Pty Ltd v Commissioner of Taxation (2002) 191 ALR 328 Puafisi v Minister for Immigration and Citizenship [2007] AATA 1823 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 TAPUKESOLOVA PUAFISI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ADMINISTRATIVE APPEALS TRIBUNAL 2061 OF 2007 BLACK CJ, LINDGREN AND SACKVILLE JJ 27 FEBRUARY 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY 2061 OF 2007 APPLICATION UNDER SECTION 476 OF THE MIGRATION ACT 1958 BETWEEN: TAPUKESOLOVA PUAFISI Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGES: BLACK CJ, LINDGREN AND SACKVILLE JJ DATE OF ORDER: 27 FEBRUARY 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed; 2. The applicant pay the costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY 2061 OF 2007 APPLICATION UNDER SECTION 476 OF THE MIGRATION ACT 1958 BETWEEN: TAPUKESOLOVA PUAFISI Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGES: BLACK CJ, LINDGREN AND SACKVILLE JJ DATE: 27 FEBRUARY 2008 PLACE: SYDNEY REASONS FOR JUDGMENT The Court 1 This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) in Puafisi v Minister for Immigration and Citizenship [2007] AATA 1823,affirming a decision made by a delegate of the Minister for Immigration and Citizenship (the Minister), under s 502(2) of the Migration Act 1958 (Cth) (the Act), to cancel the permanent residence visa of the applicant, Mr Puafisi. His visa was cancelled on the grounds specified in ss 501(6)(a) and 501(7) of the Act, namely that Mr Puafisi did not pass the character test because of his substantial criminal record. 2 Mr Puafisi, who was born in Tonga in 1954, arrived in Australia in 1985 on a short term visitor visa. He was granted a permanent residence visa in 1994. He appears not to have offended against the law until 1990, when he developed a drinking problem. Thereafter he committed a series of crimes, several of them violent. In 2003 he was convicted of aggravated indecent assault against a person under his authority and was sentenced to a term of 12 months imprisonment. Following that conviction the first respondent, the Minister, considered whether to cancel Mr Puafisi's permanent resident visa (a BF812 visa) on the grounds of his criminal history. The Minister decided not to do so, but on 15 February 2005 Mr Puafisi was issued with a written warning by the Department of Immigration and Citizenship, stating that any further offences would result in the Department re-considering whether to cancel his visa. Mr Puafisi acknowledged receipt of that warning, in writing, on 17 February 2005. 3 On 22 July 2005, however, Mr Puafisi was sentenced at Newtown Local Court to eight months' imprisonment, with a non-parole period of six months, for using or threatening to use an offensive weapon with intent to commit an indictable offence. He was also sentenced to concurrent terms of six months imprisonment for assault occasioning actual bodily harm, common assault and malicious damage. These sentences were confirmed on appeal to the Sydney District Court, sitting at Newtown, on 22 August 2005. In 2007 there was a further conviction relating to the possession of goods in custody. 4 After the 2007 conviction Mr Puafisi was informed by the Department that it intended to consider the cancellation of his visa under s 501(2) of the Act. On 13 July 2007 a decision of the Minister to cancel Mr Puafisi's permanent residence visa was delivered to him. On 18 July 2007 Mr Puafisi applied to the Tribunal for review of that decision. 5 The Tribunal heard the application for a review of the Minister's decision on 12 and 13 September 2007. Mr Puafisi and the Minister were both represented at the hearing and Mr Puafisi gave evidence to the Tribunal through an interpreter. 6 Mr Puafisi now seeks to challenge the Tribunal's decision, which he claims was vitiated by jurisdictional error in that he was denied procedural fairness. The denial of procedural fairness of which he complains is said to have arisen by reason of adverse conclusions expressed by the Tribunal about matters that were not put to him but which, it is argued, should have been put because, to the use the language of the Full Court in Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, they were matters that "would not obviously be open on the known material". 7 There were three such conclusions, it was submitted. The first concerns the reading at the Tribunal hearing of a letter from the Department warning Mr Puafisi that his visa might be cancelled. Under cross-examination Mr Puafisi was shown a copy of a letter which warned him that his visa might be cancelled if he committed further offences. He agreed that he had signed the receipt confirmation, but appeared to deny any memory of having been given such a warning. In re-examination, immediately after the Deputy President had asked Mr Puafisi about his level of education in English, the following exchange occurred between Counsel for Mr Puafisi (Mr Karp), the Deputy President and Mr Puafisi: MR KARP: …Yes. Mr Puafisi, could you read that to yourself in English, please? MR PUAFISI: On 2 of December 2003, Department of Immigration and – What's this one? MR KARP: No. Please don't help. THE D. PRESIDENT: Do you mean to read it to himself, do you? MR KARP: I mean to read it out loud. THE D. PRESIDENT: To read it out loud, right, yes. 8 Mr Puafisi then continued reading the opening paragraph of the letter and was then asked by Mr Karp whether he understood what it meant. He said that he did not. 9 By asking Mr Puafisi to read the letter aloud and then asking him whether he understood the letter Mr Karp was plainly attempting to support his client's case by demonstrating that Mr Puafisi was unable to understand the contents of the letter. Mr Karp appreciated that his client's ability to read the warning letter was an issue of some significance. It was precisely for this reason, understandably enough, that he asked Mr Puafisi to read the letter aloud. 10 Despite taking this course, Mr Karp made no submission to the Tribunal as to the significance of Mr Puafisi reading aloud the letter. The Tribunal was entitled to infer that Mr Karp did not wish to say anything about this aspect of the evidence. Even so, the Tribunal addressed the issue, recording the conclusion that it had reached. It expressed this conclusion in its reasons, explaining cogently why it had found that Mr Puafisi did in fact have the ability to read the warning letter: Puafisi [2007] AATA 1823 at [87(k)]. 11 We should add that we were invited to listen to the recording of Mr Puafisi's evidence. We did so and while the material might be equivocal, it was open to the Tribunal to reach the conclusion it did. 12 The second matter for complaint is that the Tribunal made the following comment (at [87(j)]): People who speak quite good English sometimes ask for an interpreter as an insurance against mental blocks or any difficulties in describing complex events, but also sometimes in order to gain additional time to consider answers to questions in cross-examination or to buttress a claim that they did not understand what they were doing (when pleading guilty, for example). In the present case I think the two last-mentioned reasons are the operative ones. 13 Mr Puafisi's ability to understand English was in issue and he claimed, amongst other things, that he had not understood the importance of pleading guilty to some of the offences that provided the very foundation of the decision to cancel his visa. In addition, as we have noted, Mr Puafisi claimed not to have understood the warning letter sent to him by the Department. His Counsel specifically submitted that he had limited English, thereby suggesting that his claims were plausible and should have been accepted by the Tribunal. 14 It must have been obvious that the Tribunal would take account of all the evidence before it in determining whether Mr Puafisi's claims should be accepted. The evidence included not only Mr Puafisi's claims not to have understood the criminal proceedings or the contents of the letter, but his admission in answer to a question put to him by the Tribunal that he could read English. The material that the Tribunal could take into account also included the manner in which Mr Puafisi gave his evidence in the witness box. 15 Part of the Tribunal's assessment of Mr Puafisi's various claims would have rested on its view of Mr Puafisi's apparent need for an interpreter and the manner in which Mr Puafisi responded to questions. In these circumstances it might well have been remiss of the Tribunal not to have recorded its assessments of the manner in which Mr Puafisi gave his evidence. The fact that the Tribunal chose to comment on these matters involved no denial of procedural fairness. 16 The third matter of complaint concerns the statement in the Tribunal's reasons (at [87(m)]), that Mr Puafisi had repeatedly told the Department that he did not have any family in Tonga although he had told the probation officers who had prepared his pre-sentence reports that he had a wife and three children there and kept in regular contact with them. At the hearing before the Tribunal Mr Puafisi admitted that these three children are still living in Tonga and that he had sent money earlier in the year for his youngest child's final year university fees. The Tribunal said (at [87(m)]): It is likely that he made that disclosure at the hearing because he knew or suspected that the pre-sentence reports would be before the Tribunal. 17 This observation was the last that the Tribunal made before expressing the conclusion (at [88]) that: In view of those equivocations, discrepancies, evasions, claims of poor memory and change of story, it is impossible to regard [Mr Puafisi] as a reliable witness. 18 Two points must be made about this third matter of complaint. First, the matter can hardly be said to have taken Mr Puafisi by surprise. The conflicting versions were plain on the material before the Tribunal. Indeed, on the basis of the information provided by Mr Puafisi, the Minister had found that Mr Puafisi would "suffer significant hardship when first relocating to Tonga as he has no known offer of support and no known relatives and might be expected to endure hardship for a period while he re-established himself in that country." However, in his evidence in-chief before the Tribunal Mr Puafisi gave details of his family in Tonga including his role in educating his children and providing financial assistance to them. None of this material had previously been disclosed to the Department. It must have been obvious that an issue could arise as to why this information had not been provided earlier. 19 The second point is that this was but a minor matter at the end of a long list of what the Tribunal described (at [88]) with, we would say, ample justification as "equivocations, discrepancies, evasions, claims of poor memory and changes of story". 20 Counsel for Mr Puafisi placed much weight on the following sentences from the judgment of the Full Court of this Court in Alphaone Pty Ltd 49 FCR 576. In discussing the content of an entitlement to proceed for fairness, the Court said (at 592): That entitlement…extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. 21 We do not think this passage supports Mr Puafisi's submission that the Tribunal did not accord Mr Puafisi procedural fairness in the present case. It suffices that we make the following observations. First, the second sentence of this passage, on which Counsel for Mr Puafisi place significant emphasis, should not be read in isolation. In particular, it should not be read as requiring disclosure of a view based on known materials and in relation to a known issue, as in the present case. 22 Secondly, we note that the sentence immediately following the passage that we have set out above (at [19]) is in these terms: Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. 23 This observation made by their Honours applies to the present case. We note that the passage extracted above at [20], including the additional sentence extracted at [22], was referred to by the High Court in the recent case of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]. 24 Thirdly, we note our agreement with the views expressed by Gyles J in Lidono Pty Ltd v Commissioner of Taxation (2002) 191 ALR 328 at [18] to [20] in relation to arriving at a conclusion of credibility. 25 For these reasons the application for judicial review should be dismissed, with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and Justices Lindgren and Sackville. Associate: Dated: 20 March 2008 Counsel for the Applicant: Mr L Karp Solicitor for the Applicant: Willis & Bowring Counsel for the Respondent: Mr G Kennett Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 27 February 2008 Date of Judgment: 27 February 2008