FEDERAL COURT OF AUSTRALIA Dharma v Minister for Home Affairs [2020] FCA 550 Review of: Re Dharma and Minister for Home Affairs [2019] AATA 4065 File number: NSD 1854 of 2019 Judge: FLICK J Date of judgment: 28 April 2020 Catchwords: MIGRATION – denial of procedural fairness – absence of bias – the taking into account of irrelevant material – no failure to have regard to relevant material Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 43C Migration Act 1958 (Cth) s 501, 501CA Ministerial Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Cth) Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68, (2016) 241 FCR 30 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72, (2005) 225 CLR 88 BWM15 v Minister for Immigration and Border Protection [2017] FCA 1157 Dharma v Minister for Home Affairs [2019] FCA 431 Hamod v New South Wales [2011] NSWCA 375 Plaintiff S157 v The Commonwealth of Australia [2003] HCA 2, (2003) 211 CLR 476 Re Dharma and Minister for Home Affairs [2018] AATA 2757 Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181 YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 Date of hearing: 24 March 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 30 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr J Kay Hoyle Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 1854 of 2019 BETWEEN: SENA AJI DHARMA Applicant AND: MINISTER FOR HOME AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: FLICK J DATE OF ORDER: 28 APRIL 2020 THE COURT ORDERS THAT: 1. The proceeding is dismissed. 2. The Applicant is to pay the costs of the Respondent, either as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FLICK J: 1 The Applicant in the present proceeding, Mr Sena Aji Dharma, is a citizen of Indonesia. 2 He first came to Australia in 1991 at the age of 14. He returned to Indonesia for a brief period from February to July 1994, after which he returned to Australia. 3 In 2009 and again in 2010, while imprisoned for various offences, the Applicant was issued with a Notice of Intention to Consider Cancellation of his visa. Those Notices had been issued by reason of his criminal conduct and imprisonment. On neither occasion, however, was his visa cancelled. 4 In April 2017, Mr Dharma was convicted of a further criminal offence and sentenced to a further term of imprisonment. In August 2017, his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the "Migration Act"). In October 2017 Mr Dharma made representations to have the cancellation decision revoked under s 501CA(4) of the Migration Act. In May 2018, a delegate of the Minister decided not to revoke the cancellation decision. 5 Review by the Administrative Appeals Tribunal (the "Tribunal") of the delegate's decision was sought. In July 2018 the Tribunal affirmed the delegate's decision: Re Dharma and Minister for Home Affairs [2018] AATA 2757. But in April 2019 that decision was set aside by an order of this Court: Dharma v Minister for Home Affairs [2019] FCA 431. The matter was remitted to the Tribunal for reconsideration. 6 In October 2019 the Tribunal, differently constituted, again affirmed the delegate's decision: Re Dharma and Minister for Home Affairs [2019] AATA 4065. 7 On 7 November 2019, Mr Dharma filed in this Court an Originating Application seeking judicial review of the Tribunal's October 2019 decision. On 20 March 2020 he filed an Amended Originating Application. Although an appeal may not lie to this Court from the decision of the Tribunal (Administrative Appeals Tribunal Act 1975 (Cth), s 43C), the Court retains original jurisdiction to quash the Tribunal's decision, if jurisdictional error is established (cf. Plaintiff S157 v The Commonwealth of Australia [2003] HCA 2 at [5] to [6] and at [79] to [83], (2003) 211 CLR 476 at 482-483 per Gleeson CJ and 507-508 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ). A failure on the part of the Tribunal to comply with the terms of Ministerial Direction No. 79 may constitute jurisdictional error (cf. YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [35] to [40] per Mortimer J). 8 Mr Dharma's Amended Originating Application filed on 20 March 2020 contains two Grounds of Review, namely: a denial of procedural fairness; and the making of findings for which there was "no evidence", the "taking into account of materials the decision-maker should not have looked at" and ignoring other evidence that should have been "serious[ly] consider[ed]" in accordance with Ministerial Direction No. 79. 9 Due to social distancing restrictions introduced in response to the COVID-19 pandemic, the hearing took place by means of telephone. Mr Dharma represented himself and made oral submissions directed to each of the two Grounds of Review. The Respondent Minister was represented by Counsel. 10 Neither Ground of Review has been made out. The proceeding should be dismissed with costs. A denial of procedural fairness 11 The thrust of the argument as to a denial of procedural fairness was, as Mr Dharma put it in his oral submissions, that the Tribunal member "refused to hear me out". The Tribunal, so the argument ran, was "not interested" in considering what Mr Dharma wished to advance in support of his case. 12 Two of the instances relied upon by Mr Dharma when he developed this submission were: the shortness of time within which he was required to provide further documents and further information; and the pejorative characterisation of materials he had obtained from computer searches, the Tribunal member referring to that material as his "research". Neither of these examples provides any basis for an argument as to the Tribunal member approaching his decision-making task with anything other than an open mind. There is certainly no basis for any argument as to a reasonable apprehension of bias on the part of the Tribunal member. 13 The Tribunal had extensive material before it which had been provided by Mr Dharma. The Tribunal lists this material in its reasons for decision: [2019] AATA 4065 at [25]. In addition to this material, on 14 May 2019 the Tribunal held a telephone directions hearing at which Mr Dharma was directed to provide: any witness statements and other evidence on which he intended to rely by 17 June 2019; and any further materials on which he intended to rely by 22 July 2019. During the course of the hearing, further directions were made requiring any further materials to be lodged by: 15 August 2019 but later extended to: 29 August 2019. Notwithstanding the failure on the part of Mr Dharma to provide any witness statements, he sought and was granted at the outset of the Tribunal hearing the opportunity to call as witnesses his former partner and his two eldest children. Any suggestion that Mr Dharma was not extended an adequate opportunity – both prior to and subsequent to the hearing – to provide all materials in support of his case is without substance. 14 As to the second matter referred to by Mr Dharma during his oral submissions, he contended that the Tribunal's use of the term "research" was indicative of a commitment on the part of the Tribunal to be summarily dismissive of his case. Instances of the Tribunal's use of the term "research" in its reasons for decision include the following: [64] When asked about the multiple missed sessions with a psychologist recorded in his clinical records while in immigration detention, Mr Dharma said he did not see the benefit of such sessions. He also claimed to have declined follow-up consultations on occasions because he 'was coping well at that time.' He explained a reference to his non-compliance with the prescribed anti-depressant Sertraline, as choosing not to take it after conducting his own research on the internet and becoming concerned about potential side-effects. Mr Dharma said in preference to mental health consultations while in prison or immigration detention, he would go to his 'own choice' of mental health practitioner if released, who he 'felt comfortable with.' … [66] Mr Dharma highlighted what he contends are significant impediments confronting him if repatriated to Indonesia. He characterises those as 'social, cultural and language barriers,' as well as the practicalities of resettlement. The latter includes finding somewhere to live, accessing medical support, and daily living requirements. Mr Dharma said his 'research' on the internet had revealed that income and other support arrangements in Indonesia were far below that available in Australia. … … [144] In relation to language and cultural impediments, Mr Dharma contends he 'can't speak read and understand [the Indonesian] language properly. He submits in his statement: 'I've been in Australia for 27 years and haven't been back there since 1994. If I was deported back to Indonesia...I will have no one to help me or support me. I don't know my way around and way of life over there. I will face with language, social, cultural and religion barriers. I will not be able to support myself and let alone support my children...I was still a child...and had no time to learn or absorb the social mores and values...I don't have any degrees in any subject and based on the research I did about Indonesia that is not easy to get a job there and the average wage is around $300 - $400 a month. Indonesia doesn't have government housing, Medicare and Welfare benefit so yes I will suffer from severe hardship with no help and support and I don't know how I am going to survive over there especially with my health issue from depression and stomach ulcer. (footnotes omitted) The Tribunal used the same term on a number of other occasions. 15 Although different terminology could well have been used, the Tribunal's use of the term "research" evidences nothing other than the Tribunal's use of the same language as that employed by Mr Dharma in his statement and nothing other than as a convenient way of communicating the course of Mr Dharma's evidence. 16 Neither of these two instances, accordingly, supports any argument as to a denial of procedural fairness. 17 Although not a matter developed during his oral submissions, the first Ground of Review concluded with the following: … As the decision maker I believe that it is their duty to observe and to guide and to instruct and finally to decide not just with fairness and compassion but in this case the tribunal was lacking in procedural fairness and impartiality. Subject to a Court maintaining a position of neutrality, there may be circumstances in which a Court "should provide some advice and assistance to an unrepresented litigant": cf. Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181 at [26] per Finn J. A Court's duty, however, "is not solely to the unrepresented litigant": Hamod v New South Wales [2011] NSWCA 375 ("Hamod") at [310] per Beazley JA (Giles and Whealy JJA agreeing). Beazley JA there went on to observe that although there "may be fine a tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance": at [315]. See also: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [38]-[39], (2016) 241 FCR 30 at 44-45 per Flick, Griffiths and Perry JJ. 18 No question, it is respectfully concluded, arises as to the Tribunal member in the present case – being an administrative and not a judicial decision-maker – not having acted with "procedural fairness and impartiality". Even though Mr Dharma appeared before the Tribunal unrepresented, as he did before this Court, any disadvantage that he may thereby have suffered did not prejudice his ability to fully present and develop his case. The opportunity to call witnesses despite the absence of compliance with a direction to file witness statements and the careful attention of the Tribunal to the evidence before it denies any claim as to any lack of procedural fairness or partiality on the part of the Tribunal. 19 It must further be recognised that any argument founded upon a denial of procedural fairness necessarily had to confront a number of obstacles, including the fact that: it is difficult to make out any such argument founded merely upon reasons for decision (cf. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [14], (2005) 225 CLR 88 at 95 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ), rather than by reference to (for example) an affidavit setting forth what happened during the course of an administrative hearing or by reference to a transcript (see for example, BWM15 v Minister for Immigration and Border Protection [2017] FCA 1157 per Perram J at [19]); the hearing before the Tribunal took place over two days; the reasons for decision are self-evidently of some length and canvass in considerable detail the evidence given; and the reasons expose some matters being resolved in favour of Mr Dharma (e.g., the best interests of his two minor children at paras [107] to [113]) and other matters being resolved against him (e.g., the expectations of the Australian community at [121] to [122]), in other words an apparently balanced and objective determination of competing considerations. The facts relied upon to confront these difficulties, with respect, do not occasion any reason to question the impartiality with which the Tribunal approached its decision-making task. 20 A review of the course of the Tribunal hearing does not disclose any further basis upon which a denial of procedural fairness could have been made out. 21 The first Ground of Review is rejected. No evidence & the consideration of the irrelevant 22 Counsel for the Respondent Minister was correct in characterising as an "assertion" the opening reference in the second Ground of Review to the decision being "a decision for which there was no evidence" or a decision which "was not reasonably open on the materials…". So expressed, the Ground is without substance. 23 As developed in oral submissions, however, Mr Dharma explained that the material which the Tribunal "should not have looked at" was the reference to the fact that he had been charged with "assault occasioning actual bodily harm" in circumstances where he had not been convicted of that offence. The Tribunal's reference to this charge was at that part of its reasons and findings where it was summarising Mr Dharma's evidence. The incident formed part of events which took place in October 2014 in relation to which competing versions were given by Mr Dharma and his former partner. Mr Dharma's former partner maintained that Mr Dharma pushed her and "held a knife to her". 24 But the mere fact that Mr Dharma may not have been convicted of the assault charge does not have the consequence that the Tribunal could neither set forth the evidence given nor take into account the entirety of the events surrounding what occurred in October 2014. 25 The separate contention advanced by Mr Dharma was that the Tribunal had failed to take into account or "ignored" the impact of the decision upon his children and, in particular, the impact upon his eldest child. As at the date of the hearing before the Tribunal, Mr Dharma was the father of three children – being 18, 16 and 7 years old. 26 The argument has at least two difficulties, namely: Ministerial Direction No. 79 only identifies as a primary consideration the interests of "minor children"; and the interests of all children were in any event taken into account. It is the latter difficulty which dooms the present argument to failure. 27 The Tribunal heard evidence from the two eldest children and summarised that evidence in its reasons. Although the Tribunal made findings, as it was required to do, in respect to what would be in the best interests of the two minor children ([2019] AATA 4065 at [107] to [113]), the Tribunal was also conscious of – and did not "ignore" – the impact that Mr Dharma's return to Indonesia would have on his eldest child. The Tribunal entertained evidence from this son and made findings in respect to that evidence. 28 The second Ground of Review is also rejected. CONCLUSIONS 29 Neither Ground of Review has been made out, either as originally expressed in the Amended Originating Application or as developed by Mr Dharma during the course of his oral submissions. 30 There is no reason why costs should not follow the event. THE ORDERS OF THE COURT ARE: 1. The proceeding is dismissed. 2. The Applicant is to pay the costs of the Respondent, either as agreed or taxed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 28 April 2020