Tapara v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 15 December 2020
• Neutral Citation: [2020] FCA 1833
• Date: 15 December 2020

Federal Court of Australia

Tapara v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1833

File numbers:	NSD 1167 of 2020
Judgment of:	LEE J
Date of judgment:	15 December 2020
Catchwords:	MIGRATION – cancellation of visa under s 501(3A) of Migration Act 1958 (Cth) – application for review of a decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs declining to revoke the cancellation under s 501CA(4) – self-represented applicant – grounds of review not particularised – alleged denial of procedural fairness during hearing in Administrative Appeals Tribunal – no demonstrable error – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 476A(1)(b), 501(3A), 501CA(4)
Cases cited:	Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	25
Date of hearing:	15 December 2020
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Mr N Swan
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		NSD 1167 of 2020
BETWEEN:	PAUL ANTHONY TAPARA Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	LEE J
DATE OF ORDER:	15 DECEMBER 2020

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

2. Order 1 not take effect until publication of the reasons for judgment of Justice Lee.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the Transcript)

LEE J:

1. The applicant Mr Tapara is a New Zealander born in 1962 who arrived in Australia at the age of 17.

2. The first respondent (Minister) made a decision pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the cancellation of Mr Tapara’s Absorbed Person Visa (Visa). Later, the Administrative Appeals Tribunal (Tribunal) affirmed the decision of the delegate and it is against that decision that Mr Tapara seeks judicial review pursuant to s 476A(1)(b) of the Act.

3. The matter has a somewhat lengthy procedural history. Following the decision of the delegate of the Minister to cancel the Visa in February 2019, Mr Tapara requested that the Minister revoke the cancellation. In December that year, a delegate of the Minister refused to revoke the cancellation decision which caused Mr Tapara to seek review of the delegate’s decision by the Tribunal.

4. An earlier decision of the Tribunal, on 26 February 2020, affirmed the delegate’s decision but that decision was affected by jurisdictional error. On 4 May 2020, this Court, by consent, set aside that decision. It was on 27 August 2020 that the Tribunal, constituted by a different member, heard the matter again and the decision the subject of this application for judicial review was made on 30 September 2020 (Relevant Decision).

5. Mr Tapara is not represented. I am aware that efforts were made by the Court, including at my direction by my Associate, to provide pro bono legal representation for Mr Tapara. For reasons that are unnecessary to go into for the purposes of the determination of this application, pro bono counsel did not accept the referral.

6. In the absence of an application for an adjournment, prior to this hearing I gave consideration as to whether the matter should be adjourned to see whether it would be worthwhile to engage alternative pro bono counsel. Ultimately, in circumstances where Mr Tapara is currently in detention and in the light of the lengthy procedural history, I concluded that it would be consistent with the overarching purpose for the determination of this matter not to be further delayed.

7. By originating application, Mr Tapara seeks certiorari to quash the Relevant Decision and, in support of that relief, two grounds of review are stated. Perhaps understandably in the circumstances, those grounds are not particularised and the Minister has not been served by Mr Tapara with any submissions or other explanation of the way in which they are put. Having said this, Mr Tapara did, during the course of oral submissions, expand upon the second ground.

8. The two grounds identified are as follows:

1. Ground 1: “Judicial error”.

2. Ground 2: “Not adopting a fair process in making decision”.

9. Ground 1 can be dealt with shortly. It is unclear that there is any suggestion that this is distinguished from a generalised assertion that the Tribunal had engaged in jurisdictional error.

10. It seems to me that the only real complaint made is that articulated by ground 2. Needless to say, if the Tribunal denied Mr Tapara procedural fairness and, as a result, Mr Tapara suffered some practical injustice in that such denial was material to the Tribunal’s decision, then jurisdictional error will result: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (at 443 [38] per Bell, Gageler and Keane JJ).

11. When asked to elaborate upon any unfairness as to the process in relation to the making of the Relevant Decision, Mr Tapara directed my attention to the transcript of the hearing before the Senior Member which led to that decision. Following a tender of other material, the Senior Member said the following (at T3.6–11):

… Now, I was going to ask both of you I don’t intend to recanvas a lot of material, Mr Tapara, that you’ve already covered in your evidence because I have the transcript of that in front of me. I assume that you would like to give evidence and I will call you and swear you in shortly and perhaps ask you some questions and Ms Ng will have some questions …

12. After some further discussion, Mr Tapara was called as a witness, and the following exchange occurred (at T4.30–T5.4):

SENIOR MEMBER: Thank you. Mr Tapara, you’ve got the bundle of documents in front of you.

WITNESS: Yes.

SENIOR MEMBER: Do you have any difficulty reading or writing? Have you been able to read those?

WITNESS: Yes. Yes, I can read them now.

SENIOR MEMBER: Okay. Now, in that case have you read the transcript of the previous hearing?

WITNESS: Yes.

SENIOR MEMBER: Okay. And I know you’ve made some submissions on that. Is there anything you wish to say about that transcript or are you happy to adopt that as your evidence?

WITNESS: I would be happy to adopt it, yes.

SENIOR MEMBER: Okay, thank you.

…

13. Thereafter recorded from pages 5 to 19 of the transcript was a series of exchanges between the Senior Member and Mr Tapara which constituted his evidence-in-chief before the solicitor for the Minister, Ms Ng, commenced her cross-examination (at T19.19).

14. It seems to me that a fair review of that material indicates that Mr Tapara was given every opportunity by the Senior Member to clarify anything he wished to say, not only about the transcript of his earlier evidence, but also relevant to the decision the Senior Member was to make.

15. I do not think it is arguable that...