Nathanson v Minister for Home Affairs & Anor [2022] HCATrans 26 (10 March 2022)

Last Updated: 16 March 2022

[2022] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M73 of 2021

B e t w e e n -

NARADA NATHANSON

Appellant

and

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 MARCH 2022, AT 10.00 AM

Copyright in the High Court of Australia
MR C.J. HORAN, QC: May it please the Court, I appear with MR A. ALEKSOV for the appellant. (instructed by Lawson Bayly)

MR G.R. KENNETT, SC: May it please the Court, I appear with MR A.P YUILE for the first respondent. (instructed by Sparke Helmore Lawyers)

KIEFEL CJ: Yes, Mr Horan.

MR HORAN: Your Honours, the appellant was denied an opportunity to address the critical issue in the review by the Tribunal. It is accepted that that issue was dispositive before the Tribunal. The sole question is whether the appellant could have said or done anything that might have made a difference, in other words, was there a realistic possibility of a different outcome.

We submit that the majority in the Full Court fell into error when addressing that question, first by assuming that there was nothing more that the appellant could have said or done to address the relevant issue, and secondly by speculating that whatever the appellant might have said or done would not have helped him, or, in other words, that the Tribunal would inevitably have reached the same conclusion on the merits regarding the seriousness of the family violence incidents when assessing the nature and seriousness of the appellant’s past offending and other conduct.

For the reasons I am about to outline, we say the reasoning of the minority judge, Justice Wigney, in the court below, should be preferred. In summary, it should be inferred that if the appellant had been afforded a fair hearing, he could and would have adduced evidence or made submissions as to the seriousness of the domestic violence incidents as an aspect of his past conduct, and as to the weight that that should be given in the exercise of the discretion, whether to revoke the cancellation of his visa.

Now, the Court will be very familiar with the statutory framework in which this decision was made. The power exercised by the delegate and by the Tribunal is conferred by section 501CA(4). That section confers power to revoke a mandatory cancellation decision under section 501(3A) if the decision‑maker is satisfied either that the person satisfies the character test or that there is another reason why the original decision should be revoked. The Minister has given written directions in relation to the exercise of the discretionary power conferred by section 501CA(4). Those directions are binding on decision‑makers. That is by reason of section 499.

At the time that the delegate made the primary decision, which was 8 January 2019, the applicable direction was a direction called Direction No 65. The delegate, in affirming or in deciding not to revoke the cancellation, did not refer to or rely on any claims or incidents of domestic violence in making that decision.

Now, as this Court held in SZBEL (2006) 238 CLR 152 at paragraph 35, the delegate’s reasons provide the starting point for the identification of the issues arising on an application to the Tribunal for merits review. An applicant for review is ordinarily entitled to assume that the issues identified as determinative in the delegate’s reasons will be the issues arising in the review, unless some additional issues are identified by the Tribunal.

In the present case, between the date of the delegate’s decision and the hearing before the Tribunal, a new written direction under section 499 came into force. That was made at the end of 2018, but came into force on 28 February 2019. That was known as Direction No 79. The changes in that direction included the addition of a new paragraph that required decision‑makers to have regard to the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. That is in paragraph 13.1.1(1)(b).

Now, your Honours, the reference in the materials to the relevant part of the direction is in the book of further materials at pages 165 to 166. That factor, under paragraph 13.1.1(1)(b) was one of a range of mandatory factors that were required to be taken into account under clause 13.1.1 in considering the nature and seriousness of the non‑citizen’s criminal offending or other conduct to date and that, in turn, under clause 13.1, was a relevant consideration when considering the protection of the Australian community under clause 13.1.

Protection of the Australian community from criminal or other serious conduct was the first of three primary considerations in deciding whether to revoke a cancellation decision, the others being the best interests of minor children in Australia and the expectations of the Australian community. That is in the principal clause, 13, subclause (2). Clause 8(1) and (4) of the direction required decision‑makers to take the primary considerations into account and generally to give “greater weight” to primary considerations than the other considerations.

Now, the point of going through that is that one can see, as Justice Wigney appreciated, that what that meant was that the addition of new paragraph 13.1.1(1)(b), introduced a new mandatory factor that was required to be taken into account in assessing the seriousness of the applicant’s past conduct.

Far from giving rise to additional issues, the Tribunal led the appellant to believe that the new direction, and in particular the changes to which I have just referred, would have limited relevance to his application. At the commencement of the Tribunal hearing the member told the appellant that the changes to the direction, including, in particular, new paragraph 13.1.1(1)(b) were “only minor” and were “of minor relevance” to his case. This is, of course, because the appellant has never been convicted or sentenced of any crimes of a violent nature against women or children.

However, the Minister had provided the Tribunal with various documents obtained under summons from the Western Australian police, which included – as well as conviction histories and the like – police reports of complaints that had been made by the appellant’s wife in 2012 and 2016 concerning incidents of domestic violence and a violence restraining order.

In the Minister’s statement of facts, issues and contentions dated 8 March 2019, no reliance was placed on that material in connection with new paragraph 13.1.1(1)(b), nor in relation to the first primary consideration of protection of the Australian community. Instead, the Minister sought to rely on the evidence to diminish the weight to be given to the second primary consideration – the best interests of the appellant’s minor children.

That submission, which is in the book of further materials at pages 72 to 73 was directed to the effect of domestic violence on children, and the question whether the appellant was likely to play a positive parenting role in the future. It was not in the context of assessing or evaluating the nature and seriousness of the appellant’s past conduct for the purposes of the protection of the Australian community from harm.

The Tribunal hearing then proceeded on that basis. In particular the documents on which the appellant relied included a statement in support from his wife, which was in the form of a letter dated 5 March 2019.

GORDON J: Is it right that that letter came before the statement of facts, issues and contentions?

MR HORAN: It is, yes. So, it was not responsive to those contentions. I will come in a moment to a contention that the Minister advanced in this Court that it may be inferred that that statement was in response to the provision of the material from the Western Australian police, but we say it was – certainly at the hearing it was part of the evidence on which the appellant relied in meeting the case that had been articulated in the statement of facts, issues and contentions and in light of the Tribunal’s opening comments. That statement – I will not take your Honours to it – but it is set out in full in the judgment of Justice Wigney at paragraph 19 at the appeal book page 109.

Now, as I said, the Minister submitted that that was provided in direct response to the production of the police records. That is at paragraph 11 of the first respondent’s submissions. We submit there is no sound basis on which such an inference can be drawn. Accepting that the appellant said that he had seen the material prior to the Tribunal hearing – which took place on 21 March 2019 - it cannot be said that the appellant or his wife must have seen that material prior to 5 March, let alone that the wife’s letter was in response to that material.

There is nothing - apart from referring to the fact of making statements to the police, there is nothing in the letter that, on the balance of probabilities, leads to an inference that it must have been in response to that material. But, in any event, we say that that factual question makes no difference, given that it is undisputed that the basis upon which the hearing was conducted – in the light of the Minister’s statement of contentions, the Tribunal’s opening remarks and the Minister’s opening submissions – was that there was no reliance upon those incidents for the relevant purpose of protection of the community.

It was also in that context that the Minister’s counsel cross‑examined the appellant about the domestic violence incidents. His evidence was, broadly speaking, to the effect that he had little independent recollection of the incidents, but he accepted that his wife had made such statements to the police. As he put it, he was not there:

to argue with what she’s put against me

He did go so far under cross-examination of accepting some aspects of the incidents when they were directly put to him, but overall that is qualified by his evidence that he had little recollection of his own. He seemed to be largely accepting that, if that is what my wife said in the statement, then I accept that she made those statements.

Now, it should be stressed that, at this point in time, the appellant was not on notice that the Minister would submit, or that the Tribunal might find that the evidence was relevant to the nature and seriousness of his past conduct, or to the protection of the Australian community. Insofar as it was suggested that his continued presence in Australia was not in the best interest of his children, the appellant provided supportive evidence, including from his wife, as to the current state of the relationship with her and his children.

Significantly, the Tribunal ultimately accepted, on the basis of that evidence – albeit with some reservations – that the best interests of the appellant’s children were likely to be served by revocation based on their strong bond with their father. The Tribunal made that finding at paragraph 125 at appeal book 45.

In oral closing submissions, the Minister submitted for the first time that the domestic violence incidents and the violence restraining order should be regarded as:

extremely serious conduct particularly having regard to the new directions -

The Tribunal refers to that submission at paragraph 51, appeal book 26. Now, I do not need to go through the Tribunal’s decision in any detail. The critical paragraphs for the purpose of this appeal are at paragraphs 52 to 59, which are at appeal book 26 to 28. In those paragraphs, the Tribunal made adverse findings that the appellant had been:

involved in violent conduct against his wife -

Then, contrary to its statement to the appellant at the commencement of the hearing, the Tribunal relied upon the new direction and the new paragraph to:

inform consideration of how seriously ‘other conduct’ . . . should be regarded.

Then, the Tribunal did refer to the statement from the appellant’s wife but in doing so specifically noted what the statement did not do, that is it did not:

indicate that she falsified these reports or that the events did not occur.

Now, of course, the appellant had not had an opportunity to call further evidence from his wife directed to those two topics, or more generally to the seriousness of the conduct, nor to have her give oral evidence, or be asked questions by the Tribunal. So, we say that the way in which the Tribunal dealt with that letter, if anything, highlights the potential relevance of further evidence from the appellant’s wife.

Now, that further evidence is not limited to evidence that the reports were false, or that the incidents did not occur. It could involve an elaboration on the incidents, and the context from the perspective of the appellant’s wife, which could be relevant to the assessment of their seriousness. The statement did not itself directly address the incidents at all or provide any details of those incidents.

Before leaving the Tribunal’s decision, I would observe that it is not in dispute that the Tribunal’s finding on the first primary consideration – which is at paragraph 74, appeal book 32 – depended upon its findings in relation to domestic violence, and in particular the characterisation of the domestic violence incidents as serious conduct.

That was found at first instance by the primary judge at paragraphs 28 and 37, at appeal book 79 and 82. It was affirmed by the Full Court at paragraph 47 in Justice Wigney’s judgment and at paragraph 104 in the majority’s judgment at appeal book 117 to 118 and 134. So, in other words, the findings on domestic violence and their seriousness were dispositive or determinative of the Tribunal’s ultimate conclusion on protection of the Australian community and therefore were determinative or critical for its ultimate decision not to revoke.

So, against that background, the question for decision on the appeal is as follows. It is accepted that there was a breach of procedural fairness constituted by the denial of an opportunity to adduce evidence or make submissions directed to the domestic violence issue in the context of the new direction, in other words, the issue of how the domestic violence incident should be characterised when assessing the nature and seriousness of the appellant’s past criminal and other conduct.

Now, it is accepted that a denial of procedural fairness will give rise to jurisdictional error if it deprived the appellant of a realistic possibility of a different decision or a successful outcome. Ordinarily, the denial of an opportunity to be heard on a critical issue, being an opportunity that fairness requires be given, would inevitably entail a realistic possibility of a different decision. The possibility is to be assessed as a matter of reasonable conjecture based on the historical facts, in particular, the hearing that was conducted and the decision that was in fact made.

That basis of historical fact does not require any findings to be made, or any identification of what might have been said or done if an opportunity to be heard had been given. The counterfactual is simply that fairness was afforded, that is, the appellant was given an opportunity to adduce further evidence or make submissions. There is no need to engage in any hypothetical exercise by reference to what evidence might or might not have been given, or what submissions might or might not have been made – let alone any attempt to evaluate or assess how the evidence or submissions would have affected the decision.

Now, if one takes an example of the more common instance of a breach of the hearing rule of procedural fairness - if the denial of procedural fairness involved taking adverse material into account without giving notice or an opportunity to respond to the person affected, that is a breach of natural justice and entails jurisdictional error.

That has long been established and an example is the landmark case of Kioa v West. It does not matter whether or not the adverse material is in fact correct, or whether or not the applicant might have been successful in rebutting that material. The unfairness is in simply denying the opportunity to respond to the adverse material that was taken into account without notice. We say the position is no different in a case such as present where the denial of procedural fairness involves the denial of an opportunity to be heard on a critical issue ‑ ‑ ‑

GORDON J: I wonder if not – I notice that Justice Colvin adopted a different – arguably a different approach. He saw the denial as a denial on behalf of the Tribunal to ask him to respond to. You see that at paragraph 40 of his reasons where he says – this is at page 115 of the core appeal book. As I understand him, it was the failure of the Tribunal having heard the Minister’s submission in effect to ask him to address those submissions concerning both Direction 79:

and the relevance of the incidents of domestic violence to the -

very issue that was then sought to be raised by the Minister, and then goes on to say:

Nor did the Tribunal ask Mr Nathanson if he wanted to adduce any evidence -

to address that matter. Is that in effect ‑ ‑ ‑

MR HORAN: Well, insofar as there is a denial of an opportunity to respond, it is to respond on an issue – not to respond to information. That is really the critical distinction because the Minister, with respect, seeks to view this case through the prism of a Kioa v West‑type situation – that there needed to be an opportunity – that the complaint is that there was not an opportunity to respond to the information contained in the WA police report, and the Minister says, well, he knew that information was there and he responded to it in a different context

But, with respect, the issue both articulated by Justice Colvin in paragraph 40 and also in relation to the way the Full Court characterised the denial of procedural fairness, was a denial of an opportunity to respond – or to address a critical issue by way of evidence or submissions. What is being said in the paragraph to which your Honour refers is it is true that it views that as a failure by the Tribunal to invite that response but it is, nonetheless, an opportunity to address the Minister’s submission concerning Direction 79 and the relevance of the incidence of domestic violence to the primary consideration of the protection of the Australian community.

Now, that cannot be glossed over as simply an issue of an additional use of the information or different weight to be given to the information that was already in issue because it was put in issue in a completely different context as diminishing the significance of what would otherwise have been a positive factor under a different primary consideration and instead treating it as centrally relevant and ultimately determinative on a different issue.

Now, we say the recent decisions of this Court in cases such as Hossein, SZMTA and MZAPC did not involve the denial of an opportunity to be heard. There may be cases in which there is a procedural defect or flaw but it is necessary to prove facts in order to establish that that procedural irregularity might have affected the decision, and examples are in cases such SZMTA and MZAPC where the Tribunal fails to give notice that it has received documents that were subject to a certificate, which then affects the way the hearing – the process to be followed by the Tribunal, but it still needs to be established that the Tribunal – what the Tribunal actually did with those documents to establish whether or not that procedural irregularity affected the decision.

EDELMAN J: Well, Stead itself is a case where there was a denial of procedural fairness but that denial of procedural fairness, albeit not in an administrative context, was one where the Court had to go on to decide was one that did not – would not inevitably affect the result.

MR HORAN: Yes, or whether it had a bearing on the outcome. But, critically, in doing so, in that case the denial of an opportunity to make submissions on an issue it was not necessary to examine what submissions would have been made, let alone whether or not they would have persuaded the trial judge.

So, this is the distinction between historical facts, the backward‑looking inquiry as to what happened in the decision‑making process, and the decision that was in fact made as opposed to the reasonable conjecture based on those facts as to what might happen, or might have happened, in the counterfactual situation if the opportunity had been given.

EDELMAN J: Does that distinction depend on the seriousness of the denial of procedural fairness, or how does one draw the line then between when conjecture is permitted and when it is not?

MR HORAN: Well, the conjecture relates to the field of what might have been done. The proof of historical facts relates to what was in fact done by the Tribunal and the reasons for decision that were made. So, putting to one side the extreme denials of extreme procedural fairness to which your Honour referred that might of themselves give rise to jurisdictional error regardless of effect on the outcome, and just looking at cases where it still is necessary to show that the denial affected the outcome, that still allows a case where the realistic possibility of a different decision or outcome can be negated or rebutted.

I will take your Honours shortly, just very briefly, to the passage in the majority judgment in MZAPC, but some examples of that were given by Justice McHugh in Aala [2000] HCA 57; (2000) 204 CLR 82 at paragraph 104, which is referred to by the primary judge in this case at paragraph 46, appeal book 84. The two examples that are given are, firstly, if the ultimate decision was in fact favourable to the affected person – so upholding the case for the party affected by the breach of procedural fairness. The second example is if the decision was adverse on a separate and independent issue.

Now, in those sorts of cases, it is true that issues of practical injustice and materiality, and even discretion to refuse relief, might overlap or even merge, but the important point is that it can ordinarily be inferred that the lost opportunity to be heard deprived the person of at least the realistic possibility of a different outcome unless there is some factor to negate that possibility as a matter of conjecture.

EDELMAN J: Just so I understand your submission, it is that we are not in the territory of such an extreme denial of procedural fairness that one puts to one side this whole type of inquiry - but, in the field of this case, there is effectively only an evidentiary onus rather than a substantive onus to go ahead and engage in the conjecture as to what would have happened?

MR HORAN: Yes. We do not say that the denial here was a fundamental breach of rights or something that should independently lead to the grant of relief. But we are saying showing materiality – the realistic possibility of a different decision that is done as a matter of inference on the record of the Tribunal’s decision-making process and its decision.

Ordinarily, if one gets to the point of finding – or in this case, it is now accepted that there was unfairness in not providing an opportunity to be heard on a particular issue – it can be inferred that that lost opportunity deprived the person of the possibility of a successful outcome – unless there was some other factor on the record such as a separate finding that was fatal, or in fact if the party affected ultimately succeeded - - -

GLEESON J: Mr Horan, would you say that we approach that task by looking at the paragraphs which set out the decision‑maker’s conclusion – at page 59 of the core appeal book – with a view to determining what reasonable inferences could be drawn from that as to whether there is a reasonable possibility of a different outcome?

MR HORAN: Yes, but - - -

GLEESON J: Realistic possibility.

MR HORAN: - - - together with the paragraphs dealing with the first primary consideration, concluding with paragraph 74, on appeal book 32 – and the contribution to that finding that – it is accepted was made by the findings made at paragraphs 55 to 59. We say that that shows, as a matter of fact, the decision‑making process failed because it is accepted that the Tribunal did not give the required opportunity, and then, as a matter of fact, the decision in fact made by the Tribunal was affected by that failure.

KIEFEL CJ: Mr Horan, are you saying that the Tribunal’s reasons left no possibility for the appellant to realistically do anything to overcome it, and that the loss of opportunity you are referring to is a loss of opportunity to persuade the Tribunal before the findings are made?

MR HORAN: It was the loss of an opportunity if the appellant had known, as he should have, that the Minister would raise – and the Tribunal would find – that his conduct was serious in the light of both the domestic violence incidents and in conjunction with the new direction, then he could have adduced further evidence or made submissions in the manner that the dissenting judge, Justice Wigney, identifies, and that there is a realistic possibility that any one or more of those things would have persuaded the Tribunal to a different conclusion, particularly given the evaluative nature of the exercise, the balancing of the factors within the first primary consideration and the balancing of the primary considerations against each other, and against other considerations.

So, when one enters the territory of, how did this affect the decision, there is no case which establishes that the court should be engaging in an exercise of running permutations of what might have happened and how it could have turned out for the appellant. There needs to be something in the historical facts, the decision‑making process or the decision that was made that shows that it could not have made a difference, and there is nothing here, and I will come to what was relied upon ‑ ‑ ‑

KIEFEL CJ: Have you not just reversed it? Could not make a difference – do you not have to show that it could have made a difference?

MR HORAN: Well, we say it should be inferred it could have made a difference unless there is something to negate that. Now, I am not putting that in terms of onus, your Honour, I want to stress that, because I accept that the onus of establishing the realistic possibility remains on the applicant as a matter of inference from all of the evidence, but that onus was discharged here by showing that there was an opportunity denied to address a critical issue, and ‑ ‑ ‑

KIEFEL CJ: But that is the breach of procedural fairness.

MR HORAN: Yes.

KIEFEL CJ: Is materiality not a different inquiry?

MR HORAN: Well, it is a consequential inquiry, but ‑ ‑ ‑

KIEFEL CJ: I mean, there can be consequences, I accept, from the nature of the breach, which will tell you something, but here, all you really draw from – you identify the nature of the breach as being a loss of opportunity to persuade. But that raises the question, what kind of persuasion, what would the case – what could have been put forward, does it not?

MR HORAN: Well, it does ‑ ‑ ‑

KIEFEL CJ: And that is where materiality lies.

MR HORAN: That does, and that is where one enters the question of reasonable conjecture based upon what, in fact, occurred.

KIEFEL CJ: What do we reasonably infer or – what do we ‑ ‑ ‑

MR HORAN: Well, what does not need to be inferred as a matter of fact, or proven, is what could or might have been done, because that is to confuse the counterfactual aspect with the conjecture aspect. So, when, in MZAPC there is a reference, I think, to both of those things, the counterfactual analysis on the one hand and the reasonable conjecture on the other, and at one stage there is a reference to, I think, the two terms put together, a counterfactual conjecture, the counterfactual element of that is what, in fact, occurred, and in the process, and in the decision, and we say, relevantly here, those facts are not in dispute. It was established as a matter of fact that the appellant was not given an opportunity to address the issue, and it was established as a matter of fact that it was dispositive to the Tribunal’s reasons.

EDELMAN J: Essentially, your submission is trying to deal with the onus that you bear in relation to materiality without turning that onus into a requirement, on judicial review, to run an entirely new hearing.

MR HORAN: Yes, and to – even in a hearing light, as I think maybe the Minister would suggest, there needs to be some description of what the case would have been, but ‑ ‑ ‑

EDELMAN J: Judicial review is dead then, if that is the case.

MR HORAN: Yes, it would inevitably draw the Court into – firstly, it would draw applicants into a requirement to put on evidence in every case, just in case, and it would require the Minister to test that evidence, and it would require the Court to then assess that evidence and to engage in the conjecture on the basis of those forward‑looking facts about what might be done. But we say that that is not part of the historical facts. That is where one enters the territory of conjecture and a reasonable conjecture is that, as in Chief Justice Allsop’s judgment in Degning, one infers that the appellant would have done whatever he could have done.

KIEFEL CJ: But that assumes there was something that could be done.

MR HORAN: Yes, well, it does, but it ‑ ‑ ‑

KIEFEL CJ: What is the “something”?

MR HORAN: The “something” is to put further evidence, or submissions in relation to ‑ ‑ ‑

KIEFEL CJ: One accepts that you do not have to - it is not a requirement to re‑run a case, but surely the shape of something has to be identified.

MR HORAN: Well, we say it was. It was identified sufficiently, and it is identified in the judgment of Justice Wigney, I think at paragraphs 63 to 65, that is, giving further evidence himself, calling his wife to give evidence, or making submissions on whether and how the incidents engaged paragraph 13.1.1. Now, none of those things are remote or fanciful. They are all realistic possibilities. He should not have to articulate, let alone give evidence of what ‑ ‑ ‑

KIEFEL CJ: But anyone can say we have called further evidence. In the case that would be the answer to every loss of opportunity ‑ ‑ ‑

MR HORAN: Well, but not ‑ ‑ ‑

KIEFEL CJ: We say, “I would have called further evidence”.

MR HORAN: Well it may be that is why one struggles to find a case of a loss of an opportunity to be heard on an issue which has not been material, unless it is an aspect where, because of the nature of the issue and its lack of centrality or importance, or because of an independent finding on a different issue, that it can be said that the opportunity would not have gone to the outcome of the decision.

That might be a little bit like asking whether, in a case like MZAPC, taking into account a particular document would have affected the outcome. There, there is a crystallised set of historical facts. There is a document. There is a finding it was not taken into account, but the Court, on judicial review, can sensibly assess whether or not the document was so immaterial that it could not have made a difference. But in a case like the present where the concession is a denial of an opportunity to be heard on the dispositive issue, it just defies credulity to suggest that it is not ‑ ‑ ‑

KIEFEL CJ: Do you need to analyse the dispositive findings a little, though? The findings were objectively open. The direction indicated that the acts of domestic violence are to be taken seriously.

MR HORAN: But that raises the issue, it does not answer the issue, your Honour, with respect. So, the appellant – it is not a question of whether the findings were open on the evidence and the submissions that were made. It is a question of whether or not the Tribunal might have viewed the matter differently if it had the benefit of further evidence ‑ ‑ ‑

KIEFEL CJ: But there is nothing to say that the acts did not occur. What other finding is available?

MR HORAN: Well, putting ‑ ‑ ‑

KIEFEL CJ: It is not suggested that either the appellant or his wife could say they did not occur. The opportunity was there always to say that she had not – that that had not occurred or had not occurred as had been said.

MR HORAN: Well, we respectfully submit that it does not need to be – to rise to that level. So, to treat this as a binary issue of whether or not the incidents occurred, or whether or not they are characterised as serious on the one hand or not serious – that is not the issue – or the limit of the issue on which the appellant was prevented from addressing. The real issue was how and why the incidents occurred, and what their context and circumstances were and then how seriously should they be regarded in the light of the appellant’s other conduct, including his criminal conduct.

So, it is not a binary issue. It was an issue of evaluation and balancing of all of the considerations. If an opportunity had been given to provide any further context or details about these incidents – or to make submissions about the weight that they should be given – essentially what the majority is saying is we, the majority in the court performing judicial review, have formed a view that these were always going to be characterised seriously and nothing that could have been said could result in a different conclusion.

GORDON J: Mr Horan, is another way of putting your argument – just so I am clear about it – that when one looks at the process of the hearing, both in taking, as you say, the reasons of the delegate as a starting point, and then one goes to the statements of facts, issues and contentions, in effect the way in which the Tribunal in its opening submissions dealt with Direction 79, as you say, put in neutral terms, underplayed it.

You then have nothing in the Minister’s opening submissions, cross‑examination, and it is not until the closing submissions that you get the Minister raising the impact of Direction 79 on that primary consideration. In a sense, is your point that the fair hearing – the denial of procedural fairness extends across the whole of the hearing, so that at no point is his mind directed to the very issue which is ultimately determinative?

MR HORAN: That is correct, your Honour.

GORDON J: Just so I am clear about the argument, does that mean then that, for the purpose of the first question by reference to the historical facts, nothing more is required – to pick up what Chief Justice Allsop said in Degning, in effect you infer from it that the denial is so material because his mind is not directed at any point to the critical issue?

MR HORAN: Yes, with respect.

GORDON J: Is that what then Justice Colvin is addressing – and I think you are right to say Justice Wigney in dissent also identified by saying at no point was that error – or the defects in the process – rectified by having his mind and him being asked what is your response to these submissions, what is it you wish to say about them?

MR HORAN: That is correct. A counterfactual – to the extent that there is one – is either that he was aware from the outset of the hearing or made aware – either prior to or at the outset of the hearing – that that was in issue – and therefore the hearing would have been conducted fairly – or at the end of the hearing, when the issue was raised, that steps could have been taken to allow him a further opportunity to address it. That, in a sense, is what is being said in terms of the Tribunal’s failure to invite a response. I think the majority in the Full Court - - -

GORDON J: So, really, it has two aspects – it is both process throughout and then the failure to rectify the errors.

MR HORAN: Yes. Then the final element of the historical facts and the record is the decision that was in fact made, and there is no dispute that this was a dispositive issue. So, it is not a case where, looking at the decision that was in fact made, one can see that there was no realistic possibility of a different outcome.

GORDON J: Is that to say any more than there may well be a number of cases have identified – both, I think, in terms of the majority and the minority in these authorities – that there is a category of procedural fairness where nothing more is required, because, when you look at it by reference to the factors – you have given us three, in effect, temporal points to take into account – nothing more is required in order for there to be the conclusion drawn in the way that Chief Justice Allsop did in Degning.

MR HORAN: Yes, that is correct. As in Stead, and as the majority in MZAPC observed, it is open to the opposing counsel to try and identify anything from the record that prevents the appellant or applicant from establishing that inference that the applicant has the onus to establish. But the fact that the respondent cannot negate that possibility does not mean the respondent has an onus to disprove a realistic possibility – it is simply that there is a realistic possibility. Unless negated by something in the decision‑making record or the decision that was made and otherwise in the historical facts, then relief should follow.

KIEFEL CJ: Mr Horan, it is an historical fact that the wife wrote a letter of support, in which she, in effect, said, I wish I had not made the complaint, and I support my husband. Why is it not open to infer that there is nothing further the wife could say about the facts that had taken place?

MR HORAN: Because it was never – there is nothing in that statement that suggests that she could not have - - -

KIEFEL CJ: But why would you not infer – to take up what Chief Justice Allsop was saying – why would you not infer that at the time that she gave the letter of support, she would have said whatever she could possibly say to try to negate the complaint she had made of domestic violence? Logically, it applies at that level if it applies at the other end, does it not?

MR HORAN: Well, putting to one side the Minister’s contention that her statement was directly responding to the material - - -

KIEFEL CJ: I am not taking account of that.

MR HORAN: When she made her statement, she was making it as a supportive statement addressing the nature of her relationship with the appellant, and with his children. The hearing then proceeded on a basis where that was really the only way in which the domestic violence incidents were agitated - - -

KIEFEL CJ: There was no further context for them.

MR HORAN: Yes. So one does not know if the appellant, being on notice, could have asked her, given that he had little of his own recollection about the incidents to elaborate on what was contained in the police reports, what happened, and it could have – I mean, one does not need to speculate about what she might have said about her role about the – now, the majority are almost prepared to infer that if she had done so then it might have made things worse.

Now, we say that highlights the trespassing into the factual merits that is engaged here because let us assume it might have made things worse. I cannot say that that is not a realistic possibility, but it is not a certainty, and there has to be a realistic possibility that it would not have made things worse and it could have cast things in some different complexion which would have affected the weight to be given – how serious the characterisation of the conduct and what weight it should be given.

Now, it may be in many cases – for example, a Kioa v West situation – the matter goes back and the appellant cannot say anything, or does not say anything, that is persuasive against the adverse material that they were denied an opportunity to address, but that is not the inquiry. The appellant should have had the opportunity to address that through evidence or submissions, and it is not for a court on judicial review to speculate or second‑guess what might have been done.

GLEESON J: Perhaps especially where what you are dealing with is evaluative exercises in several steps. So you have an evaluation which was flawed in relation to the question of protection of the Australian community and then that feeds into an evaluation of these different considerations. How could the court say that there was no possibility of a different outcome as to the weighing exercise without really getting down into the weeds and making its own factual findings?

MR HORAN: Yes, with respect, we would agree with that approach. The wife’s statement, it should be pointed out, did not embark at all upon any attempt to say anything about the incidents themselves, and it did not even refer to the Western Australia police reports in terms. So it is really unknown what might have been said by her as to cast further light upon the content of those police reports or the ‑ ‑ ‑

KEANE J: Well, it is pretty clear that she does not deny – you cannot possibly read the letter as suggesting that she did not complain and that what she complained about was not true. What you might be able to say is that there might have been some elaboration of the reasons why she is evidently reconciled with her husband. Is there any more?

MR HORAN: Well, there could be further details about the elaborating on what the incidents were and how serious they were that would bear upon the characterisation of their seriousness. So, it is true that the majority found – and we probably cannot cavil with the majority’s conclusion that a suggestion that the appellant might have made that he could have – that there was a realistic possibility of showing that the incidents did not occur could not be made out.

So there was no realistic possibility on the record that – let us accept, for present purposes, that he could not have done anything to disprove the existence of the incidents, but that leaves an enormous area of factual inquiry and submissions about what happened and why it happened and how it happened and how serious it was in the context of the new direction, and all of that is untilled ground and it is really for the Tribunal to reconsider that on the merits, not for the court to require some threshold to be met before one can say that a different decision could have made.

I said, your Honours, I would go briefly to MZAPC, which is, I think, the only case to which I need refer. All I wanted to do by reference to that case is to take your Honours to a few paragraphs in the majority judgment of your Honours Chief Justice Kiefel, Justices Gageler, Keane, and Gleeson. At paragraphs [37] and following, the Court looks at the onus borne by the applicant of proving the historical facts necessary to establish a reasonable possibility of a different decision. There is a reference at paragraph [37] to CNY17 and the:

question of the counter‑factual analysis to be determined by the court as a matter of objective possibility –

and essentially treated that as a backward‑looking exercise concerning what the decision‑maker did in the particular case. Then at paragraph [38], your Honours continue to say that involved:

determining the basal factual question of how the decision that was in fact made was in fact made.

Then matters become – well, it becomes a matter of reasonable conjecture within the parameters of those historical facts. Now, we say that exercise can be distinguished from a forward‑looking inquiry looking at hypothetical facts about what the applicant might say or do or might have said or done if there had not been a failure to comply with procedural fairness requirements. So that exercise is not encompassed in the historical facts on which the reasonable conjecture is based. At paragraph [39] your Honours return to the question of onus, and the onus, relevantly, is on the applicant:

of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture.

Now those facts are readily capable of proof, because they are historical. It is how the decision was in fact made, and the decision‑making process that was in fact followed, but we say the other matters of what might have been done are not historical facts that are capable of proof on the balance of probabilities, and again, even if one did require some evidence or articulation, there is nothing to suggest that an applicant would not give self‑serving evidence on that hypothesis.

There is then a consideration at paragraphs [46] to [49] of the decision in Stead, and I will not recount all of that, but the relevant point is that the appellant was still required to show that the denial of procedural fairness:

deprived him of the possibility of a successful outcome” –

and that possibility could be negated or undermined by facts arising from the appellate record, but what is clear is that in Stead there was no need to lead evidence or to prove what counsel would have submitted or that the trial judge would have been persuaded by those submissions.

Then your Honours finally deal with the materiality inquiry in the context of judicial review at paragraphs [50] to [52], essentially making the point that that inquiry is no different to the inquiry in cases such as Stead. So it is not different, in substance, from the inquiry postulated by SZMTA directed to determining whether an error in a decision‑making process engaged in by an administrator has resulted in jurisdictional error, and the difference, or any difference, it is said at paragraph [52], lies:

in the identification of the factual foundation on the basis of which the counterfactual conjecture of a realistic possibility falls to be assessed.

So in judicial review, the decision‑making process in fact engaged in by the decision‑maker needs to be proved by inferences from admissible evidence, and an example might be where the question is whether or not a particular document was taken into account, that has to be proved by inferences from the evidence, as a matter of historical fact, but at the risk of repeating the point, we say nothing about what an applicant might have said or done if given a fair opportunity to be heard is a matter of historical fact about the decision‑making process that was, in fact, undertaken, or the decision that was in fact made. Instead, those matters fall within, or form part of the reasonable conjecture involved in making out a realistic, that is, a non‑fanciful possibility of a different decision.

Then, just before leaving this decision, again I emphasise, as has been done in the court below and on other occasions, at paragraph [51], the caution that is flagged about the court on judicial review being careful not to assume the function of the decision‑maker.

Now, just finally to address the present case to the extent that I have not done so already in response to questions, what was it, we ask rhetorically, on the facts of this case, which is said to negate a realistic possibility of a different decision if the appellant had been given a fair opportunity to address the domestic violence issues in the context of the seriousness of his conduct and the protection of the Australian community from such conduct.

What is it that required the appellant to establish a realistic possibility of a different decision by way of evidence or submissions to the court, which identified something in sufficiently specific terms that could have been said or done just so the court could then evaluate whether that might have led to a different decision?

I think I have referred before to the identification of the types of things that the appellant might have done, was in fact articulated below, and Justice Wigney addresses that at paragraphs 63 to 65. The things that were relied upon below – there are essentially three matters. The primary judge relied on two of them, and a third was added by the majority in the Full Court.

The primary judge at paragraph 62, appeal book 88, found that the appellant was required to identify something specific that could have been put to the tribunal in circumstances where first the appellant was said to be on notice that the factual material concerning domestic violence was an issue and, second, that the appellant was said to have accepted that his conduct – the conduct in question had occurred.

The majority in the Full Court similarly relied on these matters, but the three matters that were decisive to the majority are set out at paragraphs 127 to 131 at appeal book 141 to 142 and they were first the importance of the allegations of domestic violence “should have been” apparent to the appellant. Essentially that is similar to the contention that the appellant was effectively on notice that domestic violence was in issue. Second, that the appellant had given a statement from his wife which is said to have dealt with the domestic violence allegations, and that is a factor to which your Honour the Chief Justice referred in questioning as being perhaps relevant to how one assesses the realistic possibility, and third, that the appellant had accepted that domestic violence incidents had occurred in the way set out in the police reports.

We submit that each of those conclusions was not a correct reflection of the historical facts relating to the Tribunal hearing or the Tribunal decision. But further, or alternatively, we submit that in any event they do not negate the realistic possibility of a different decision which arises by inference from the denial of the fair opportunity to be heard on the domestic violence issue in the context of the new direction.

Now, dealing with the first point, the notice point, the suggestion that it should have been apparent to the appellant that domestic violence would be important understates the significance of the Tribunal having told the appellant that the changes to the direction were “only minor” and of “minor relevance” and then specifically relying on the new paragraph in its characterisation of the appellant’s conduct.

So, in a way the suggestion undercuts the basis of the admitted failure to comply with the requirements of procedural fairness. But further, the majority’s conclusion fails to recognise the difference between the use of the evidence of domestic violence in the context of the first primary consideration – being protection of the Australian community, and its completely different significance in the context of the second primary considerations – best interests of the minor children.

In relation to the latter, the Minister had relied on the evidence only to discount would what would otherwise have been a potential positive consideration in favour of the exercise of the power to revoke. It was put that the past domestic violence was relevant to whether the appellant was a parental role model, and whether his separation from his children would be in their best interests. The appellant met this case by relying on evidence that he had a close bond with his children and had reconciled with his wife. It was in that context that his wife’s statement had significance.

The appellant was largely successful in that the Tribunal did not accept the Minister’s submissions on the best interests of the children. However, it was completely different to use this evidence in assessing the seriousness of the appellant’s past conduct in the context of the protection of the Australian community, and it is accepted that he was not on notice of the importance of the evidence to that question. If he had been on notice and had been given an opportunity to be heard on the significance of domestic violence on that issue, he might realistically have responded differently. The details and the consequences would have been far more important.

The second factor, the statement from the appellant’s wife, I have dealt with it partially in response to questions. Firstly, the letter did not directly address or deal with the domestic violence incidents – it did not contain any elaboration of the circumstances or context of those incidents – and did not in fact in terms refer to or adopt the content of the police reports. Rather, the letter was focused on the impact of the complaints on the relationships between the appellant, his wife and his children – which was particularly relevant in the context of the reliance by the Minister on domestic violence and the consideration of the best interests of the children.

We say there is no basis either to infer or assume that the wife could not have said anything further about the incidents themselves, which might have been relevant to a characterisation of their seriousness. The majority seemed to say that because the statement provided a basis upon which the Tribunal might have reviewed the incidents less seriously, that that meant that nothing further could have made a difference. But we say that the fact that the statement might have been viewed in that way cannot be taken to mean that the statement was exhaustive or that it represented the high‑water mark as to what evidence could have been put before the Tribunal on that issue.

I think I have already mentioned before the majority’s dealing at paragraph 132 with the suggestion that one could not rule out the possibility that the new evidence would have put the appellant in a worse position. Indeed the majority went so far as to “readily infer” that if she had said more, she may have been cross-examined in a way that made matters worse for the appellant.

But importantly, this is not a case in which there is any suggestion that the appellant made a forensic decision not to call further evidence from his wife. Among other things, he was not legally represented, and he was not at that time on notice of the significance of the issue regarding the characterisation of that conduct.

So whether or not one can speculate that further evidence might not have assisted the appellant, it still remains a realistic possibility that such evidence might have changed the outcome – particularly when the Tribunal is required to conduct an evaluative task involving a balancing exercise of giving weight to competing considerations and then exercising a discretion whether or not to revoke the cancellation.

Insofar as it is accepted that it was possible that the appellant’s wife might have given oral evidence, the effect of the Tribunal listening to her evidence and assessing her demeanour cannot be discounted. So, we say that, in the circumstances, it cannot be said that the appellant was required to adduce evidence or to provide a description of what the appellant’s wife might – or would – have said in order to establish a realistic possibility, as a matter of conjecture, that her evidence might have affected the Tribunal’s decision.

The final point is the appellant’s acceptance that the incidents had occurred. Justice Wigney made some observations in his dissenting judgment that the appellant’s acceptance of the domestic violence incidents – in the terms described in the police report – was neither clear nor unequivocal. Further, he observed that any admission made by the appellant in the course of his cross‑examination was made at a time before the significance of the issue had been identified.

But, putting those matters to one side, and proceeding on the basis of the limited extent to which the appellant did accept that the incidents had occurred, there is still no basis to assume that nothing further could have been said by way of evidence or submission that might have changed the way in which the Tribunal characterised the incident, or how seriously it viewed the conduct.

Partially, that is because it was not simply a binary question of whether or not the incidents had occurred, or whether they were serious on the one hand or not serious on the other. The circumstances and details of the incidents were potentially relevant to the characterisation and to the weight to which the Tribunal gave this evidence in the context of the first primary consideration and, given that evaluative task, further evidence and submissions might realistically have influenced the Tribunal’s assessment of the nature and seriousness of the appellant’s past conduct.

Finally, to state, as the majority do, that the fact that the incidents occurred:

was always going to be viewed by the Tribunal as serious -

fails to recognise that the question was one of degree and weight, and to suggest that the Tribunal would be incapable of being persuaded to a different evaluation or a contrary conclusion we say is to usurp or pre‑empt the fact‑finding process of the Tribunal.

So, for all of those reasons, your Honours, we say the analysis set out in the dissenting judgment of Justice Wigney should be approved. It involves a more orthodox and correct application of principle. In a case such as the present, it can readily be inferred that the appellant would have
taken up the opportunity to be heard on the critical issue and that there is a realistic possibility that this might have led to a different outcome.

In other words, the denial of procedural fairness deprived the appellant of the possibility of a successful outcome. We say the case is relevantly analogous to Degning [2019] FCAFC 67; (2019) 270 FCR 451, where the Full Court of the Federal Court did not require the appellant to lead evidence about what he would have done if he had notice of the critical issue. The Court, which – Chief Justice Allsop at paragraph 39 stated that it was a matter of:

Human experience and plain common sense –

that the applicant would have addressed the issue and inferred that he would have said whatever he could have said about it, and that in those circumstances there was no reason to think that that could not have made a difference to the decision.

Now, although the majority sought to distinguish the decision in Degning at paragraphs 135 to 137, we respectfully submit that there is no material difference from the situation that arises in the present case, and ultimately, when one looks at those paragraphs, particularly paragraph 137, it is clear that the basis upon which the majority distinguished the decision in Degning itself rests upon an incorrect foundation or flawed premise, namely that the appellant in the present case knew or should have known that the domestic violence issue was important, that he had in fact put on material to address that issue, and that it could not be inferred that he could have said anything more to improve his position, and for the reasons already given, we say each of those matters should be rejected by this Court.

If your Honours please, those are the appellant’s submissions.

KIEFEL CJ: Thank you, Mr Horan. Yes, Mr Kennett.

MR KENNETT: Your Honours, the applicable principles in the case do not appear to be the subject of any dispute. Our learned friend has taken you to the recent judgment of this Court in MZAPC, and in particular has accepted, consistently with the plurality view in that case, that materiality is part of the exercise of identifying jurisdictional error as to which the applicant, the appellant here, bears the onus.

I do not need to take your Honours through what was said in that case, but would note the distinction made at paragraph 38 between two steps in the analysis, firstly the identification of historical facts about how the decision in question was made and, secondly, the exercise of reasonable conjecture from those facts as to what might realistically have been different, had an identified error not occurred.

The historical facts, we would submit, comprise at least the reasoning of the decision‑maker, the process followed by the decision‑maker and the material put to him or her and surrounding circumstances such as here, what can be found or inferred about a potential for matters to have gone differently.

What emerges with clarity from MZAPC is that procedural fairness cases as a class are not within the category of cases identified at paragraph 33, where materiality is already built into the error and therefore no further inquiry is required. MZAPC itself, of course, was a procedural fairness case, as was its predecessor SZMTA.

Further, we would submit, there is no – and this is in response to what our learned friends particularly say at paragraph 27 of their written submissions – distinct sub‑category of procedural fairness cases that can be identified at a level of principle that would be within that class in paragraph [33]. To the extent that notions of practical unfairness might be sought to be deployed in that regard, we submit that that concept is best understood as a predecessor of the current doctrine of materiality and that it is just not possible to draw bright lines between different kinds of breaches of procedural fairness cases and say one kind is automatically material at a level of principle and others are not.

EDELMAN J: Mr Kennett, does the absence of those bright lines mean that there is no extreme category that exists at all?

MR KENNETT: I would say a tentative yes to that, your Honour.

GLEESON J: What if the decision‑maker tossed a coin?

MR KENNETT: Well, tossing a coin would be problematic for all sorts of reasons, in addition to a lack of procedural fairness. But I think we would say first that any denial of procedural fairness is prima facie serious and the notion that there might be merely technical or non‑serious denials of procedural fairness is ‑ ‑ ‑

EDELMAN J: There is a long line of jurisprudence in relation to the proviso which, apart from the onus, applies exactly the same test for materiality where a distinction has always been drawn between denials of procedural fairness that are ones that attract the operation of the proviso and ones that fall without it.

MR KENNETT: Well, what I was going to suggest is that it normally folds into what we would understand, in the light of recent cases, as an inquiry into materiality. If it has not made a difference then - if the loss of an opportunity has not made a difference then one consequence follows, but if it may have then ‑ ‑ ‑

GORDON J: Mr Kennett, how does that sit with the proposition that appears in the first four lines of paragraph 3 of your outline?

MR KENNETT: That is what I am coming to next, your Honour, which is to say that as a working through of the consequences of MZAPC we would say in most – probably most procedural fairness cases the answer to the materiality question will be easy and the question may not even be asked, and that is because if a person has been denied a hearing altogether or not had their mind drawn to the critical issue, and if one has no evidence about what the person might have said on that issue, then the inference that the opportunity to be heard might realistically have made a difference will usually be readily drawn.

EDELMAN J: But not always. I mean, someone could be almost completely denied the opportunity of a hearing but the evidence might just be so clear and irresistible that the inference is drawn that it would not have made a difference. In those circumstances, do you say they do not get a hearing? On judicial review, the conclusion is they are not entitled to a hearing?

MR KENNETT: Not that they are not entitled to a hearing, but that the denial of the hearing, albeit contrary to the scheme and something that should never be repeated, that is an example of a case where it can be shown on the material not to be material, so that the inquiry we say must in the end be a fact‑specific one.

There will be many cases, we suggest, where the existence of a possibility of a different outcome can be very readily discerned without knowing anything or having any evidence about what the person denied the hearing might have said, but that may not be the case if the circumstances are different. We suggest that this is a case where the circumstances are different and where, in a practical sense, the applicant needs to show more than the mere denial of the hearing.

For example, if the relevant topic has already been addressed in the evidence before the decision‑maker, and already addressed to some degree by the applicant, in that case, and we suggest that this is such a case, the applicant may need to show more than the loss of an opportunity in order to make good the suggestion that the opportunity was a valuable one and that the loss of it was material.

GORDON J: Is the practical outcome of that submission that – as I understand - I just want to make sure I understand the Commonwealth’s submissions – that it would require the applicant to go into evidence to explain not only what they would have done, but what the evidence would have shown to lead to a different result?

MR KENNETT: There might be cases where that is ‑ ‑ ‑

GORDON J: Including this case?

MR KENNETT: Well, that may be where this case ends up because ‑ ‑ ‑

GORDON J: That is the Commonwealth’s submission?

MR KENNETT: A good deal has been said in the courts below and in this Court by way of submission about what might have been done, what might have been said. That did not persuade the courts below, and we will be making submissions as to why it should not persuade your Honours. So, if we are right, then here, because of quite particular circumstances in this case, in order to succeed, the appellant would have had to put on some evidence of how this question of domestic violence could have been addressed by him or his wife in further material.

EDELMAN J: It is starting to look like the beginning of the end of judicial review.

MR KENNETT: We would submit not, your Honour, because this is only going to be - or only a problem in a fairly confined set of cases and because the task of the Court would never be to decide whether it found the evidence persuasive, but only to decide at a fairly impressionistic level whether to accept that such‑and‑such evidence might have been given, and to ask whether there was a prospect of it being persuasive to a decision‑maker.

GORDON J: The difficulty about that submission is a practical one, possibly, Mr Kennett, and that is this, that where – and maybe this case is a good example. What does the applicant do and where do they draw the line? I mean, it may very well be that they need to put on their whole case in order to persuade them that it would have made a difference, so – you say it is a persuasive – a decision has to be made, a tactical decision has to be made about what the extent of the material is in order to determine whether or not they can persuade a court on judicial review of the answer to that question.

In a sense, that is what I am asking you. Is it sort of a tactical decision made by counsel for the person who is seeking judicial review to determine to the extent to which they put the material on in order to persuade them or is it that the evidence itself has to adduced, does it have to be a summary of it? What is expected, or what does the Commonwealth think is expected in order to discharge this onus of establishing that it would have – the reasonable possibility because it is apparent from the case – the reason I ask is it is apparent from looking at the Federal Court decisions below that there are various views about the extent to which this material needs to be produced.

MR KENNETT: It would be, as your Honour suggests, a forensic decision to be made in each case and it is difficult, standing here, to anticipate any such decision‑making process, but there would likely need to be some evidence from the party, or from the person who is said to have had the other material that could have been provided, indicating what the nature of that material might have been. It would need to be sufficiently detailed to be persuasive, I suppose that is about as much as one can say.

GORDON J: Thank you.

KIEFEL CJ: I see the time. The Court will now adjourn for 15 minutes.

MR KENNETT: If the Court pleases.

AT 11.20 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.34 AM:

KIEFEL CJ: Yes, Mr Kennett.

MR KENNETT: Your Honours, before moving on, I wanted to emphasise that the answers I gave to Justice Gordon just before the break I was seeking to suggest that whether or not an applicant needs to give evidence, and if so, what kind of evidence, is a fact-specific matter which will always depend on the kinds of inferences that are available from the existing evidence - I am not suggesting at all that there is a subclass of procedural fairness cases that one can draw a line around and say, in these cases there is a duty or a requirement to give evidence. I am not putting this as a matter of doctrine, but as a suggestion that the fact‑specific nature of the inquiry will in some cases make some sort of evidence a necessity if one wants to win.

Now, in this case the historical facts seem to be uncontroversial except in one respect, which I will mention shortly. The dispute between the parties is as to the product of the reasonable conjecture envisaged by the plurality in MZAPC. It is not controversial that the material obtained from the Western Australian police was properly before the Tribunal and the Tribunal was entitled to have regard to it.

It is also clear that the relevance of that material to one topic before the Tribunal, namely, the best interests of the appellant’s children had been flagged in the Minister’s statement of facts and contentions, which your Honours do not need to go, but that will be found at page 72 of the appellant’s book of further materials. It is accepted by the appellant in his reply and orally that he was aware of this material prior to the Tribunal hearing, and no procedural fairness error has been alleged in respect of the use of the material in connection with the interests of the children.

It has been said that the appellant was misled as to the uses to which the material might be put and that is true up to a point, but we would submit it is useful to note what was the denial of procedural fairness that was found by the primary judge and not contested in the Full Court or here.

The denial of procedural fairness arose when the Minister’s representative sought to make more of the material in his closing submissions, that is to rely on the material about domestic violence in connection with a further topic and the Tribunal failed at that point to do something in order to allow or invite or perhaps even encourage the appellant to address that additional use.

Justice Colvin, on page 87 of the appeal book in paragraphs 56 to 59 describes the nature of the denial of procedural fairness that occurred. The Minister did not seek to put that in issue in the Full Court and nor did that appellant seek by way of a notice of contention to submit that there were other or broader denials of procedural fairness.

So, the hearing became unfair at the point when the Minister unveiled a further asserted relevance of the domestic violence material and the Tribunal failed to draw the – essentially to revisit what it had said at the opening of the hearing - draw the appellant’s attention to that and ask if there was more he wanted to say about the domestic violence material in the light of that.

At that point may I just note a non‑issue. Your Honours may have come across section 500(6H) and (6J), which are behind the first tab in the materials, and what they appear to do on their face is to erect an extremely restrictive regime as to what material an applicant before the Tribunal can rely on by reference to a requirement for the Minister to have notice of that material before the hearing.

We have not relied on any effect that those subsections might have had. We note that this Court in a case called Uelese – which I did not write down the reference of, but my junior will give it to me in a moment – this Court in a case called Uelese held that those provisions did not prevent the Tribunal from adjourning the hearing so as to allow additional material to be supplied and then resuming the hearing at a later date. So, we have accepted that that could have been done. The question is, is there a realistic possibility that the outcome would have been different if that had been done. The reference to Uelese is 256 CLR 203.

The issue of the domestic violence as an aspect of the calculus in relation to the protection of the community was described by our learned friend as “dispositive” – and at one point as the “dispositive issue”. We would not accept that one can go that far, but we do accept that a different view on that issue on the part of the Tribunal could have affected the Tribunal’s overall weighing of the various factors.

So, we had not mounted any case that this was a case where the evidence was all one way and nothing could possibly have been different in the Tribunal members’ mind. We do accept that, if the appellant had been able to neutralise the material, to show that the incidents had not happened, for example, there would have been a chance that that might have led to a different ultimate outcome.

Other things that emerged from the historical facts in this case are these. The domestic violence material, of its nature, was always going to be of some significance in the matter, even if reliance upon it was limited to the issue of the best interests of the children. As soon as that was in play, the appellant, we say, had strong reasons to rebut it if he could, or to contextualise it in a way that would lead to the material being regarded as less significant than it otherwise might have been. He had very strong reasons to try to deal with it in any way that he could.

He had addressed it to some extent by putting into evidence the letter from his wife, which has been referred to – and which your Honours will be able to see at page 78 of the appellant’s further materials. Your Honours of course are aware of the content of that letter – it might be said that it addresses the incidents in a slightly oblique way, but it certainly adverts to them – by no means suggests that they did not happen – or that the wife’s reports to the police were falsified.

We submit, if necessary – and your Honour the Chief Justice’s questions to my learned friend indicated that this may not be necessary – but, we would submit, if necessary, that it can be inferred that, to the extent that the letter addressed the reporting of domestic violence, it was a response to the Western Australian police material.

We say that that inference – and this is the respect in which I have suggested the historical facts might not be completely uncontroversial – we submit that that inference is open because there was nothing about this at all in the delegate’s reasons – of course the police material postdated the delegate’s decision – and thus no reason for the appellant or his wife to raise the topic at all, except to the extent that it might have been thought by then that the contents of the Western Australian police documents could achieve some significance in the review.

I have noted in paragraph 7 of the outline where the police material is. It is in the respondent’s book of further material, pages 11 to 19, and I do not ask your Honours to go to it, but just note that it was not a case where an unrepresented applicant was presented with hundreds of pages of material a couple of weeks before a hearing. It was only a few pages of material to get across, and its potential significance, we would submit, must have been apparent straight away.

Your Honours have also heard that the appellant himself gave evidence to the Tribunal about the incidents in response to questions in cross‑examination. Your Honours have heard, and you will see when you look at the relevant transcript, that it has to be accepted that he did not remember much, and he was fairly guarded in his acceptance, but did specifically accept at one point having grabbed his wife’s throat hard enough to leave bruising and more generally said that he did not have much recollection of the incidents, but that if his wife had made the reports then that must have been what she thought had happened. He did not, of course, by any means, deny that the incidents had occurred.

So, if one takes those things into account, then, noting the three suggestions that Justice Wigney made in the Full Court starting at paragraph 62 about things that the appellant might have done, it is necessary to ask to what extent doing any of those three things might have helped.

In relation to that, the first point we would make is that there is no suggestion in the evidence of the appellant’s wife, let alone the evidence the appellant himself gave, that the incidents had not occurred. It is therefore extremely unlikely that further evidence could have persuaded the Tribunal that in fact they did not occur, and I think my learned friend rather accepted that this morning.

It is just not to be supposed that the appellant, having realised that the incidents now had an additional importance, might have said, no, now I do remember, that did not happen. One can put that out of account, and readily conclude that, as a practical matter, he was stuck with the evidence that the incidents had occurred.

That left the possibility of downplaying their seriousness by giving evidence about the context in which the incidents had arisen, or the relationship of the appellant and his wife since then, or by persuading the Tribunal that, while these things might have happened in the past, the appellant was a changed man.

That exercise, we submit, on the evidence before the court would have faced significant impediments. Firstly, that the incidents of their nature were, as the Full Court majority put it in a passage read by my friend, always going to be regarded as serious. That can be taken to mean that it was going to take a lot, if I could put it colloquially, to persuade the Tribunal that those incidents were anything other than very serious matters in an assessment of the level of risk that the appellant posed to the Australian community.

The second point was that the wife’s evidence, which we say was written and provided at a point where it was clear that the incidents were likely to be relevant in the review, had already said what she could say to put the incidents in context, and to stress their commitment to their relationship.

KEANE J: Mr Kennett, apropos of that, when one looks at the letter – and I am looking in the core appeal book at 109 and 110, paragraph 19, it is pretty apparent, is it not, from the last three paragraphs of the letter on page 110 that it is very much focused on the question of the best interests of the children in maintaining the family unit.

MR KENNETT: It certainly is largely concerned with that. She speaks of the family unit, which is perhaps a slightly broader concept than interests of the children ‑ ‑ ‑

KEANE J: Well, she is saying, let us keep the family together for the children.

MR KENNETT: Yes, yes. She comes at that by emphasising that, as she says, both of them regret the way that things went off the rails in the past, and they have a – they have reunited and they have a shared commitment to staying together as a family. The letter, I think, at one point says – no, that is all that I wanted to mention about the letter at that point.

The other matter that could have been exercised, one supposes, was that – or could have been put was that despite those things having occurred in the past, the appellant was now a changed man. That was a case that he had already made at an overall level at the beginning and at the end of the Tribunal hearing, firstly on page 90 of the book of further materials, and then again on page 121 of the same volume.

That was his case overall, and that, of course, was a case that needed to be weighed by the Tribunal against the evidence of his drug taking and the extent to which he had managed to carry through with attempts at rehabilitation in that regard.

So each of the ways in which one can imagine the domestic violence material being dealt with by further evidence either had already been attempted, or there was already every incentive to attempt it, and had thus already been attempted, one can safely infer, to the extent that it could be.

Finally, and this touches on the suggestion of Justice Wigney that submissions could have been put to the Tribunal about whether or not it should regard the domestic violence incidents as relevant to the issue of the protection of the community, it has never been a part of our friend’s case that the Tribunal committed a legal error in its interpretation of the direction, or – I think it was part of the case at first instance, but failed there and has not been taken up since.

We would submit it was clearly at least open to the Tribunal, assuming as long as procedural fairness was provided, which is why we are here, to deploy the evidence in that way, and to treat it as relevant to the issue of protection of the community. Loss of a chance ‑ ‑ ‑

GAGELER J: Mr Kennett, could we break down the reasonable conjecture into two stages. Do you accept that it is a reasonable conjecture that the appellant would have taken up the opportunity to lead evidence and/or present submissions if given it?

MR KENNETT: Yes, in the sense that it is one of the possible outcomes, and a non‑fanciful one.

GAGELER J: So your case really must be that if given that opportunity it could not have made a difference to the outcome?

MR KENNETT: Not quite that absolute that it would not give rise to a realistic possibility.

GAGELER J: It is a very tall order to say in respect of an important issue that involves an evaluative judgment, plus an exercise of discretion having made that evaluative judgment, that no evidence and no submission could have made a difference.

MR KENNETT: It is an unusual case. It is an unusual case because if procedural fairness has been denied the counterfactual will always be – or often – perhaps always be that the person denied procedural fairness would have said something if given the opportunity. There must be a logical possibility that the something might have changed the decision‑maker’s mind in some way, save the rare cases where there is some overwhelming piece of evidence that dictates what the decision has to be.

I suppose what we take from that is that when the Court in recent cases has treated procedural fairness as subject to notions of materiality in the same way that other errors are, that suggests that the adjective “realistic” must be doing some work, must be doing some work to include those merely theoretical possibilities. There needs to be more than a theoretical chance that saying something would have made a difference.

The other respect in which I accept this is an unusual case for a materiality argument to have succeeded and to be put here is that it is an evaluative exercise, and where the exercise is an evaluative one, one’s instinct will always be to think that different weight given to factor A might have had some – unless the evidence was very stark – might have affected the thought process in some way. Given those factors, one can see in retrospect why the Court granted special leave, but ‑ ‑ ‑

GAGELER J: One’s instinct to which you refer is born of experience as to how reasonable possibilities can play out in a context of hearing.

MR KENNETT: Yes. So here the facts, we submit, are quite special and they are quite special because the failure to direct the appellant’s mind to an issue, or the failure to hear him on an issue, occurred in relation to an issue where the material had already been canvassed. In materially, we would submit, the same way our friend tries to draw some distinctions, but really the domestic violence material had been put before the Tribunal and gone over and responded to, we suggest, to the extent that it could be in connection with the interests of the children. That raises a real issue about what might have been said further that could have made any difference.

Our submission is that when one looks at the wife’s letter and when one looks at the appellant’s evidence, the possibility of doing something effective about it in the Tribunal really narrows down very considerably and becomes really no more than the theoretical possibility that there must always be in a procedural fairness case.

The last aspect of it that I wanted to mention was the suggestion that there might have been submissions to the Tribunal of a legal kind about what should or should not be done in connection with the protection of the
community about these domestic violence incidents. We have noted that it has not been a part of our learned friend’s case that the Tribunal erred in law by doing that.

To the extent that the appellant was denied an opportunity to make a legal submission, the submission envisaged would presumably have been one seeking to persuade the Tribunal that the material was not relevant. We would submit that that submission either would have been wrong and would have led the Tribunal into error had it been accepted or would have been rightly rejected by the Tribunal.

In paragraph 11 of our outline we have given your Honours a reference to a passage in Stead where it is pointed out that a failure to hear submissions on a legal issue is unlikely to be material because that can be - firstly, if the point that is being made is right it can be fixed up in an appeal or in judicial review, but if the point being made is wrong, then going back down below and saying a wrong submission is not going to make any difference. That has some relevance here to the extent that it is suggested that the Tribunal might have been persuaded by a legal submission to take a view of clause 13 of the direction which is actually not the right view.

So that when one puts all of those things together, we say this not the kind of case where it is obvious or where it can be simply inferred that the appellant would say whatever he could, and, further, that whatever he could say had a realistic possibility of making a difference to the outcome.

Degning was a case of that kind, and it was quite different to this case, we submit. Degning was a case where the material was put in without any explanation, and there were any number of additional explanations that might have been given of it by the appellant. Rather, we submit this is a case where as a practical matter it was necessary for the appellant to make out his onus to identify by submissions or, if necessary, by evidence, what he might have said or done that might have provided the realistic possibility of a different outcome.

If the Court pleases, those are the submissions for the respondent.

KIEFEL CJ: Thank you, Mr Kennett. Anything in reply, Mr Horan?

MR HORAN: If the Court pleases, just four brief points. One is to observe that it was correctly submitted that the cases of SZMTA and MZAPC involved procedural fairness, but it is relevant to note that the procedural fairness obligation in those cases was not an obligation to give an opportunity be heard, it was the obligation to give notice of the receipt of the statutory certificate, and that led to the assessment of materiality based on historical facts in that context.

Secondly, your Honour Justice Edelman asked my learned friend some questions about the application of the proviso. We would note that in many of those cases where the proviso is attracted, the appellate court can assess the importance of the relevant error or irregularity and one example is assessing the importance of evidence improperly admitted or evidence improperly excluded which, in a way, is analogous to assessing the importance of the information underlying the certificates in SZMTA. But we say one cannot – whether in applying the proviso or in applying the materiality test – assess the materiality of evidence that might have been given or submissions that might have been made.

The third point is in relation to the counterfactual. I mentioned that there were two alternate approaches to characterising what might have happened if the appellant had been given an opportunity. Those are referred to in the majority’s judgment below at paragraph 125. They include either that the appellant had been apprised before the hearing of the importance of the issue, or the second aspect, which is that, as my learned friend said, at the stage where the hearing became unfair, to be given a further opportunity to address the issue that had arisen.

Just in passing, in reference to the – the primary judge at paragraph 57 addresses the two‑day rule and the 84‑day limit, and makes the point that neither of those was an impediment to the Tribunal taking steps to provide a fair hearing to the appellant.

Finally, in relation to the way in which the issue and the material was addressed in the context of the best interests of the child, we would say that that was inevitably directed to a different end. One way to illustrate that is just to go to the direction itself – and your Honours do not need to turn to it – but the second primary consideration of the best interests of minor children is addressed in a separate clause, 13.2 – which is at the applicant’s book of further materials, page 167 – and subclause (4) sets out the factors that are relevant to the best interests of the child. They are clearly different to the factors that are relevant under 13.1.1 to assessment of the nature and seriousness of past conduct. They include, in paragraph b) matters such as whether:

the non‑citizen is likely to play a positive parental role in the future -

and in paragraph c):

The impact of the non‑citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child -

But again the focus there is on the forward‑looking impact on the family unit, on the relationship between the non‑citizen and his or her children. We say that is quite different from the use of the material in characterising the seriousness of the appellant’s conduct for the purposes of the first primary consideration of protection of the Australian community under 13.1.

If your Honours please, those are the appellant’s submissions.

KIEFEL CJ: Thank you, Mr Horan. The Court reserves its decision in this matter and adjourns to 2.15 pm.

AT 12.07 PM THE MATTER WAS ADJOURNED