Nathanson v Minister for Home Affairs & Anor [2021] HCATrans 170 (15 October 2021)

Last Updated: 18 October 2021

[2021] HCATrans 170

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M115 of 2020

B e t w e e n -

NARADA NATHANSON

Applicant

and

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON FRIDAY, 15 OCTOBER 2021, AT 3.29 PM

Copyright in the High Court of Australia

KEANE J: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR C.J. HORAN, QC appears with MR A.ALEKSOV for the applicant. (instructed by Lawson Bayly)

MR G.R. KENNETT, SC appears with MR A.P.YUILE for the first respondent. (instructed by Sparke Helmore)

KEANE J: The second respondent has entered a submitting appearance. Yes, Mr Horan.

MR HORAN: If your Honours please, this application raises issues about the application of materiality principles to a breach of procedural fairness consisting of a denial of an opportunity to be heard. The key features of the procedural unfairness are as follows. First, the delegate had applied a previous ministerial direction and the delegate’s reasons for decision did not address or consider any alleged incidence of family violence.

Secondly, when the matter came to the Tribunal, the Tribunal drew the applicant’s attention to the new ministerial direction but specifically told him that the changes had only minor relevance to his case. That was principally because the applicant had not been charged, let alone convicted of any crimes against women and children, which was the subject of the relevant addition to the direction.

Thirdly, without prior notice to the applicant, the Tribunal proceeded to rely upon the new provision in Direction No 79 adversely to the applicant. It did so by considering that the domestic violence incidents could be taken into account as other conduct and that the new direction informed its consideration of how seriously such.....would be regarded.

I should note the Minister had introduced that matter for the first time in closing submissions by submitting that the domestic violence complaints and the interim restraining order should be regarded as serious conduct under the new direction, but it is common ground that that is the first time that the applicant was put on notice that that material might be used in that manner.

Two things are common ground from the proceedings below. The first is that the Tribunal would not necessarily have reached the same decision if it did not view the domestic violence incidents as very serious conduct. That was addressed in the court below, at paragraph 47 by Justice Wigney and – I am sorry, I do not have the paragraphs in the majority at hand, but the primary judge made that conclusion at paragraph 28 at application book page 74.

The second thing that was common ground is that it was found by the primary judge, and not challenged before the Full Court, that the applicant had been denied procedural offence and it is important to focus on the particular nature of the denial of procedural offence that is raised in this case. The most convenient place to articulate that is in the majority’s judgment reasons below, at paragraphs 83 to 84, application book page 121, where their Honours note that:

In that context, [the applicant] was denied the opportunity to adduce evidence or make submissions in relation to the domestic violence allegations on the basis of the way the Minister articulated the issue in closing and how the Tribunal dealt with it in its reasons.

So, in particular, the applicant had not been appraised, until very late in the day, that there was a possibility that the Tribunal could conclude that he had engaged in conduct arising from the domestic violence incidents which could be viewed as very serious under Direction No 79. I would also just refer again to the majority at paragraph 125, application book page 132, where the particular procedural fairness breach was described.

Now, against that background, the key issue is that the majority, as did the primary judge, went on to find that that breach of procedural fairness was not material to the Tribunal’s decision in the sense that there was no realistic possibility that a fair hearing could have made a difference to the decision.

The question then arises why that was so. Essentially, it is because the majority concluded that it was incumbent on the applicant to demonstrate what specifically he might have done that could possibly have led to a different outcome. So, in other words, the majority proceeded on the approach which, to some degree, is not in dispute, that the question of materiality is to be determined by counterfactual assumptions as to how the hearing would have proceeded differently.

The point of contention that arises is that the majority considered that that required identification of something specific that would or could have been put by way of evidence or submissions so that the court could then evaluate whether or not that specific identification of evidence or submissions might have led to a different result.

Now, the reason why that arose in that way in this case was said by the majority to be due to three particular features of the review proceeding. They were summarised or identified at paragraphs 127 to 131 at application book 133 to 134. Our submission is that, on analysis, each of those features are not such as to deprive the lost opportunity of any value to the applicant, and they each involve or require an impermissible speculation as to the factual merits of the case.

We have referred to and adopt in large part the analysis of the dissenting judge, Justice Wigney, at paragraphs 67 to 77, application book 116 to 119, who provided a compelling rebuttal to each of the features that were relied upon by the majority.

Now, just briefly, the three features are first that it was said that the applicant was or should have been aware of the importance of domestic violence allegations. In response, we say, it is difficult to reconcile the finding that the applicant was denied a fair opportunity to be heard on those issues and that that denial amounted to procedural unfairness.

As Justice Wigney in dissent pointed out, the issues had not been raised by the delegate’s decision. The applicant had been misled by the Tribunal’s reassurance that the issues had minor relevance to his case, and the applicant was not made aware until at least closing submissions of the way in which those incidents would be used and that included that much of the detail regarding the incidents was only addressed in questions and documents tendered during cross‑examination without any prior notice of their relevance.

The second feature which was said to give rise to the obligation to identify specific evidence or submissions was the fact that the applicant had called some evidence from his wife. Now, as the dissenting judge pointed out, the statement given by his wife was not filed or relied upon in response to any issue regarding the domestic violence incidents, and it pre‑dated even the Minister’s statement of contentions.

But further, not only were the majority unwilling to infer that the applicant’s wife might have said anything different or potentially useful, they went on and went further and were prepared to draw a contrary inference that her evidence might have in fact made matters worse, for example, as a result of any possible cross‑examination.

Now, we say this is not a case where the applicant made any deliberate forensic decision not to call his wife to give evidence about the domestic violence allegations or issues or the impact of that on their current or future relationship. So, this second feature that is identified by the majority, we say denies the reasonable conjecture that is required to be applied in addressing materiality, and essentially involves a predictive evaluation of the merits by reference to speculation about what evidence might have been led by the applicant.

EDELMAN J: Mr Horan, there are two possible ways of understanding your argument, at least as I comprehend it, and I am just wondering which is the way you put it, or is it both? The first is that there are, at least arguably, some areas in which materiality does not have any purchase. So, for example, if a decision‑maker simply said to a respondent, I am not going to hear anything from you, it may be that on judicial review, the court on judicial review would not try to work out whether anything that had been said could have made any difference. It would be such a serious error that materiality would not apply.

The alternative circumstance is that materiality does apply but that the onus, in situations such as this, is not much more than an evidentiary onus of saying I would have led different evidence. Which of the two is the way that you put your case, or is it both?

MR HORAN: It is possibly both. The first approach that your Honour identifies is perhaps analogous to the facts of Stead v State Government Insurance Commission, where the fact of the denied opportunity itself establishes the deprivation of an opportunity or a realistic possibility of a different decision without any need to consider what might have been said or how it would have affected the Tribunal But another approach is – we say it is possible to regard this as being a manner in which materiality is established by the ready inference from the fact of the lost opportunity.

So, another way of putting it is, it does not take much to infer a realistic possibility of a different decision in a case such as the present in the absence of something to rebut such an inference by allowing the finding that the unfairness could not have affected the outcome. This was referred to as the unnegated possibility in MZAPC at paragraphs 47 to 48 in relation to Stead.

In other words, the realistic possibility of a different decision arises from the fact of the record below, in that case.....unless there were other facts disclosed from that record that undermined or negated that realistic possibility.

GORDON J: Could I ask another thing about that, Mr Horan? Is that to say in different terms that materiality already forms part of the identified error itself?

MR HORAN: Yes, in a case such as that. That is similar to the reasoning that your Honour, together with Justice Gageler, articulated in WZARH at paragraph 60, that the case of a denial of an opportunity to be heard itself establishes materiality or the possibility of a different decision, without more, at least unless there is some further facts that can be relied upon such as an independent finding that is not – that provides an independent basis for the decision that is not affected by the procedural irregularity.

One of the difficulties we say that the majority fell into in this case was in looking at the historical facts from which one conducts the materiality analysis as to whether or not there is a realistic possibility of a different decision. Rather than look at historical facts as to the way in which the hearing was conducted, the majority got into hypothetical conjecture and analysis as to what might have happened had the procedural unfairness not taken place.

We say the counterfactual analysis does not require, in a case where the unfairness is the denial of an opportunity to give evidence and make submissions, it does not require anything more than making findings about the process of decision‑making that was in fact followed, rather than trying to prognosticate as to how it might have been borne out had some different procedure been adopted – in this case, had an opportunity been given.

Now, none of the features, we say, that the majority relied upon in any way negate the realistic possibility that the applicant could have put on some evidence or made submissions which might have been persuasive or somehow affected either the factual findings of the Tribunal or its discretionary assessment of the weight to be given to the alleged domestic violence incidents.

Just to pick up the submission from earlier, the third feature that was relied upon which we say was insufficient was the fact that the applicant had accepted that incidents of domestic violence had occurred. We say that, as Justice Wigney pointed out in dissent, that acceptance was hardly unequivocal. In fact, the applicant’s evidence was that he had no recollection of the incidents, but in any event, the fact that the incidents occurred in no way precludes the possibility that there could be further evidence or submissions about the context or circumstances of those incidents that might have affected how the incidents were viewed by the Tribunal in the exercise of its discretion.

So, we say in a case like this, the materiality prism has been misapplied and it has been treated essentially like a case in which there was a breach of a statutory condition or some procedural irregularity that does not have an obvious effect on the way in which the applicant put his or her case. So, it is very different from cases such as MZAPC and SZMTA which, apart from addressing the different statutory context of certificates under section 438, essentially the question of materiality and the onus that was required to be discharged related to the historical fact of whether or not the Tribunal had taken into account particular information or documents.

Now, that is a historical fact that can be the subject of a finding on the balance of probabilities, but it is difficult to see how the Court can take a similar approach to the hypothetical fact.....the applicant in this case might or might not have said, if given the opportunity to be heard on the critical issue.

Ultimately, we say this case does not turn on the question of onus or any difference as to where that onus rests which, to a large extent, has been settled now by the decision in MZAPC. It is about a proper identification of what historical facts must be proved in order to establish that a denial of procedural fairness was material in a case where the denial was constituted by a failure to provide an opportunity to give evidence and make submissions about that critical issue that was decisive in the outcome.

Finally, we would say that this case is analogous to the case of Degning which was distinguished by the majority, but we say this case is in the same class, namely denial of an opportunity to comment on the significance of a particular issue and particular material. In that case it was incorrectly filled passenger cards.

In our submission the present case is not in a different category, simply on the basis that the applicant can be treated as having been somehow aware of the importance of a domestic violence incident in the context of a new direction and that is because the unchallenged finding of procedural fairness is itself based on the premise that there was in fact nothing to put the applicant on notice or to draw his attention to the manner in which the Minister or the Tribunal would rely upon the evidence of those incidents. So, it is squarely within the facts that were raised in Degning.

The same approach should have been taken and the majority erred in finding that there was a denial of procedural fairness, a denial of an opportunity to be heard, but concluding that that denial could not realistically have made any possible difference to the outcome in the Tribunal.

We say this case does raise questions of principle on which there at least strong arguments against the approach taken by the majority below. Those questions are not directly resolved by previous decisions of this Court which were concerned with different aspects of procedural fairness and did not raise the question of whether a lost opportunity is sufficiently valuable to establish material, either in itself or at least by ready inference, that there was a realistic possibility of a different decision.

For those reasons we say the Court should grant special leave and hear this appeal. If your Honours please.

KEANE J: Thanks, Mr Horan. Yes, Mr Kennett.

MR KENNETT: Your Honours will have seen that in the amended notice of appeal in the court below, which is at page 97, there was one ground of appeal and it was a ground which attacked a factual finding of the primary judge. The contest in the Full Court and the contest that your Honours would hear in an appeal was purely one about the appropriate inference to be drawn from a set of uncontested facts about what had occurred in the proceeding before the Tribunal.

In the Full Court, both Justice Wigney and the majority approached this issue on the basis that it involved the application of principles that had been stated by a majority of this Court in SZMTA. Since the Full Court handed down its judgment, of course, those principles have been considered again and affirmed by a majority in MZAPC. So, the case, at most, involves the application of settled principles to a specific set of facts.

We would submit that consideration of this case by this Court would not settle any issue of principle or show the way to correct decisions in any significant ‑ ‑ ‑

EDELMAN J: Mr Kennett, is it not a difficulty that the wafer‑thin distinction between this case and Degning’s Case may have the effect in courts below that any applicant for judicial review who has been denied procedural fairness, who wishes to avoid the trap in this case will effectively need to run their whole case again in the judicial review application as though that application were the hearing at first instance in order to satisfy the court that there is something that could have been said that would have made a difference?

MR KENNETT: We would submit not, your Honour, and we would respectfully resist the proposition that it is a wafer‑thin distinction. The question identified by the majorities in SZMTA and MZAPC as to whether there is a realistic possibility that had the breach of an implied condition not occurred the decision would have been different is always, as their Honours in MZAPC said, to be answered as a matter of reasonable conjecture within the parameters set by the facts that had been found concerning what occurred in the course of decision‑making.

That is necessarily fact dependent and this comes to the point that your Honour Justice Edelman raised with my learned friend as to whether there are cases where it might be said the notion of materiality has no purchase. That might well be right in the sense that in many, if not most, cases where a person is denied a hearing on an issue that had some relevance to the decision‑maker, the inference would be fairly readily available that if the hearing had been.....the person would have said whatever she could say about the issue and that.....usually if one has no evidence about the content or cogency of what would have been said then the possibility cannot be excluded that - the realistic possibility cannot be excluded that what would have been said would have made a difference ‑ ‑ ‑

EDELMAN J: Mr Kennett, does it go further than that? Is there any case before this decision where a material criterion for a decision‑maker’s decision is a matter upon which an applicant has been denied procedural fairness and yet it has been held that the applicant is not entitled to a new hearing on that point?

MR KENNETT: I cannot point to one, your Honour, but it is of ‑ ‑ ‑

GORDON J: Can I add one fact to that as well – not only denied procedural fairness but also misled as to the significance of what it was that the material was relevant to.

MR KENNETT: Yes, well, your Honour, it is quite a particular factual situation and does not, we would submit, have implications for the general run of cases, if one can use an expression like that. But for procedural fairness cases more generally where a person is not heard or not allowed to be heard, either completely or on a particular issue of significance, the features of the case that the majority noted at 128 to 130 of the reasons gave this case a very particular flavour and to identify what might realistically have occurred is the denial of procedural fairness which is not contested had not occurred it was necessary to note those features of the case and to keep in mind when and how denial of procedural fairness had occurred.

Your Honours will have seen this in the material. The incidence of domestic violence that formed the basis for the current dispute had been referred to in the Minister’s statement of facts and contentions, albeit at that stage.....the issue concerning the best interests of the children the applicant knew the Minister – or at least was on notice that the Minister would be saying that those things had happened and that they were relevant.

He had obtained and tendered a letter from his wife that touched, albeit in a slightly oblique way, on those incidents. As your Honours have seen, he was also cross‑examined about the incidents and did not attempt to deny that they had happened. So, the matter became procedural.....only at the point where the Minister sought to rely on those incidents in another connection.

GORDON J: Is that right, Mr Kennett? The point at which he is before the Tribunal and the Tribunal says do not worry about the new direction because it does not change your position very much, that is the misleading.

MR KENNETT: It becomes unfair, we would submit, at the point where the Minister says “By the way, these matters which.....any controversy about are also relevant in another connection” and at that point we accept, or have to accept the Tribunal should have said “Well, if I am going to have regard to that argument I need to make sure that the applicant fully understands it and has a chance to say something about it”.

But this was at a point where at an evidentiary level, the matters had been canvassed, reasonably extensively, and they had been put to the applicant in circumstances where he had every reason to know that they were going to be relied on against him, every reason to put on whatever evidence he could put on about what had happened, about the context of it and whether or not it was probative as to his future behaviour.

The only thing that changes when the Minister relies on it for another purpose, in our submission, would be that further argument.....handed out and how relevant the incidents were for that other purpose. So, even if it is right that the Tribunal was obliged at that point to reopen the case and allow further evidence, it is far from apparent that further evidence would have added anything because matters had already been well and truly canvassed on an evidentiary level and nothing had changed fundamentally as to the factual dispute to the extent that there was one about those incidents.

So, the analysis of Justice Wigney, with great respect, where he wants the three things that the applicant might have done, forgets the particular point at which matters became unfair and the particular way in which they became unfair and the things that his Honour says the applicant might have done, two of those three things are matters that he could equally have done and had every incentive to do and before the steps had occurred which resulted in procedural unfairness. So, that makes it quite a specific factual situation, we would say.

The issue of the materiality had to depend on whether there was something that would have been said or done to deter the Tribunal from considering the domestic violence incidents to be relevant in some way to the question of protection of the Australian community.

Their Honours in the majority were quite correct, we would say, to observe that what might have been done about that was by no means.....and it was in that - because, frankly, it is hard to see how they were not relevant in some way to that consideration.

So that where their Honours say the capacity to refer that something might have been done which would have changed the outcomes is constrained. It is constrained by the particular facts of the case and it is for that reason their Honours said, and we would submit rightly, that something of a fairly specific nature was required, whether by evidence or by submission, to point out and to explain how it was that things realistically might have panned out differently in the very specific circumstances of this case.

In a sort of roundabout way, I have covered, I think, now our main point, which is first that this is a very specific – it is an application of settled principle to a very specific set of facts. It does not have, in our submission, far‑reaching consequences for the way procedural fairness cases need to be run or argued, and finally, we also submit the Full Court was very clearly right in the circumstances.

EDELMAN J: Mr Kennett, just before you conclude, could you point me to the passage in the majority’s reasons in the Full Court where they say anything to the effect that Mr Nathanson was effectively apprised of the importance of the domestic violence issues in the context in which they were before the Tribunal as opposed to the circumstances of his denial of procedural fairness.

MR KENNETT: On page 140 of the application book where the majority refer to three distinct features, the first of those features is that – this is paragraph 128:

the importance of the allegations of domestic violence were –

I think that should be “was”, not “were”, but anyway:

or should have been, apparent to [the applicant] from before the commencement of the Tribunal’s hearing. The allegations were raised in the Minister’s –

statement, albeit in the context of another consideration:

And, more broadly, it must have been apparent to [him] that the question of his character and propensity to engage in violence was going to be important –

So, at that stage, before the Minister, as it were, changes tack, the applicant, it is true, does not know the exact way in which these matters are going to be put.....but he has every reason to know that these allegations or incidents are going to be relied on against you, that it may be important and he has every reason to seek to either deny them or minimise them and, of course, he did not deny them and ‑ ‑ ‑

EDELMAN J: I see, but you accept that after the change of tack, those issues were not of anything other than peripheral relevance, at least from Mr Nathanson’s perspective, given what he had been told?

MR KENNETT: Before the change of tack they are clearly potentially important, although the Minister is only relying upon them in connection with the interests of the children. After the change of tack they become – they are then relied on by the Minister for another purpose as well, but the factual issues in relation to them, we would submit, do not change and the incentive that Mr Nathanson has to seek to either prove that they did not happen or that they have some context that makes them less important does not fundamentally change either. What changes is that he has another aspect of the ministerial direction that he needs to turn his mind to and try and make a submission about. Those are the submissions, if the Court pleases.

KEANE J: Thanks, Mr Kennett. Anything in reply, Mr Horan.

MR HORAN: Just three short points, if your Honours please. The first is that the Minister concedes, both in writing and in oral submissions this morning, that in many, if not most cases of a denial of an opportunity to be heard, the inference is readily drawn that there is a realistic possibility of a different outcome. The question is if so, why not in this case.

Insofar as the majority and the primary judge relied on the fact that there was no articulation, even through counsel as to what the applicant had done, one only has to look at Justice Wigney’s judgment at paragraphs 62 to 65 identifying several things that the applicant could have done. We say what more is required than that to show that the opportunity had a material effect on the outcome.

The second is, we say, that this is more than just an application of principle to the specific facts. It is a category of case that has not been considered before, at least since the renewed focus on materiality. There is a lack of clarity in the existing Federal Court decisions, which, as your Honour Justice Edelman observes, will complicate the manner in which judicial review challenges will be run in cases such as this in the future.

Finally, the third point is that insofar as it is sought to be argued that the applicant in this case should have been aware from the outset of the importance of the allegations, firstly, that overlooks the critical feature of the statement of the Tribunal.....led him into a very different state of reassurance, but, secondly, it is uncontested that he was not aware until far too late of the manner in which the allegations would be relied upon and
even the information, specific information contained in the police reports was not raised until the course of cross‑examination.

Now, in the closing submissions when the Minister attempted to rely on those incidents for the much different purpose, we say that that had a very different significance in that it led to the incidents being regarded very seriously of themselves, rather than being relevant only to the weight to be given to the best interests of his children.

Again, it is uncontested that that very different significance was critical and dispositive of the outcome before the Tribunal and we say on no view can it be said that a denial of an opportunity to be heard on such a critical issue can be dismissed on the basis that one speculates that nothing that would have been said made a difference. If your Honours please.

KEANE J: Thanks, Mr Horan. The Court will adjourn briefly to consider the course it will take in this matter.

AT 4.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.11 PM:

KEANE J: Gentlemen, there will be a grant of special leave in this case. Mr Horan, how long do you think we will take in the argument?

MR HORAN: Your Honour, I think it would be half a day. I do not know whether that is unduly optimistic.

KEANE J: Mr Kennett, what do you think?

MR KENNETT: I have the same.....with the same difficulties.

KEANE J: Reservation? Yes, very well. As I say, special leave is granted. The parties should act on the instructions of the Registrar in relation to the timing of preparation necessary to bring the matter in.

The Court will now adjourn until 10.00 am on Tuesday, 2 November.

AT 4.12 PM THE MATTER WAS ADJOURNED