In Nathanson v Minister for Home Affairs [2022] HCA 26 (17 August 2022), the High Court was required to determine whether procedural unfairness by the Administrative Appeals Tribunal (AAT) – during the hearing of the appellant’s application for a review of a decision not to revoke the mandatory cancellation of his visa – involved jurisdictional error.
The appellant Mr Nathanson, a citizen of New Zealand, arrived in Australia in 2010. In 2013, Mr Nathanson was granted a ‘Class TY Subclass 444 Special Category Visa’. But, in 2018, the Minister for Home Affairs cancelled the visa pursuant to s501(3A) of the Migration Act 1958 (Cth).
The Minister was satisfied that Mr Nathanson did not pass the character test in s501(6) of the Migration Act because Mr Nathanson was then serving time in prison for, among other things, theft and aggravated assault. The circumstances of Mr Nathanson’s offending – which included an unprovoked attack on an elderly man and a high-speed car pursuit with police – were egregious.
In 2019 the Minister decided not to revoke the mandatory cancellation of Mr Nathanson’s visa, pursuant to s501CA(4) of the Migration Act. In making that decision, the Minister was required to comply with a ministerial direction known as ‘Ministerial Direction 65’ (MD 65). MD 65 required the Minister to have regard to a range of considerations in exercising the relevant consideration.
Relevantly, these considerations included crimes against vulnerable members of the community such as minors. By the time of the AAT hearing, MD 65 had been replaced by ‘Ministerial Direction 79’ (MD 79). The significant difference between the two directions is that the latter direction included for consideration “[t]he principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed”.
At the hearing (at which Mr Nathanson was self-represented) the AAT member drew Mr Nathanson’s attention to the existence of MD 79. The AAT member marked out in red, on a printed copy of MD 79 (which she handed to him), all the changes from MD 65.
The AAT Member described these changes as “minor” and commented that “[m]ost of those changes relate to how we treat crimes where women and children are involved, and with respect to the conviction history I have for you in front of me, I think they are of minor relevance …”
During the hearing Mr Nathanson presented the AAT with a letter from his wife which referred to previous incidents of family violence, but expressed her support for him to continue to remain in Australia. The solicitor acting for the Minister questioned Mr Nathanson about two reports of family violence involving him – although Mr Nathanson said he couldn’t remember much about them.
In closing submissions, the solicitor contended that this conduct was extremely serious given the new directions in MD 79. The AAT took no steps to alert Mr Nathanson to the fact that the Minister had raised a new issue, based on the new directions, or allow him an opportunity to address this new issue.
The AAT then found, having regard to MD 79, that the evidence of family violence weighed strongly against the revocation of Mr Nathanson’s visa cancellation.
Mr Nathanson appealed to a single judge of the Federal Court of Australia (Colvin J). Colvin J found that the course taken by the AAT was procedurally unfair but did not constitute jurisdictional error. Colvin J considered that there was no jurisdictional error because Mr Nathanson had failed to point to a “sufficient factual basis” on which the court could conclude that the breach was material.
Mr Nathanson appealed to the Full Court of the Federal Court (Steward, Jackson and Wigney JJ) but was similarly unsuccessful. Steward and Jackson JJ concluded that Colvin J was correct to find that the unfairness was not material.
Steward and Jackson JJ, citing the majority in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, considered that unfairness is only material if fairness could have realistically resulted in a different decision – and this was a question of fact in respect of which Mr Nathanson bore the onus of proof.
The majority concluded that there was little scope to infer that Mr Nathanson could have produced further evidence or made further submissions that could have resulted in a different decision. Wigney J, in dissent, considered that if Mr Nathanson had been given a fair hearing, he may have been able to persuade the AAT to decide in his favour.
Wigney J observed, for example, that Mr Nathanson could have given further evidence himself about the incidents of domestic violence, or the context of the incidents, he could have called his wife to give evidence, or he could have made submissions about the weight that the AAT should give to the incidents.
Mr Nathanson appealed against the decision and the High Court unanimously allowed his appeal. Kiefel CJ, Keane and Gleeson JJ (Kiefel et al), citing MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, noted, at [32], that materiality requires a consideration of the decision that was in fact made, how it was made and whether the decision could have been different “as a matter of reasonable conjecture”.
Their Honours observed that the onus falls on the plaintiff to prove, on the balance of probabilities, the historical facts necessary to enable the court to be satisfied that a different decision could have been made. But, at [33], also noted that there generally will always be a realistic possibility of a different outcome and “(t)he standard of ‘reasonable conjecture’ is undemanding”.
Further, Kiefel et al noted, at [39], this undemanding standard did not require Mr Nathanson to establish the nature of any additional evidence or submissions that might have been presented to the AAT. Gageler J agreed with the reasoning of Kiefel et al and observed further, at [56], that the denial of procedural fairness lay in the AAT’s failure to afford Mr Nathanson a fair opportunity to be heard on a decision-making criterion, that was shown later to have been central to the AAT’s decision.
Gordon J, at [86], considered that the AAT’s denial of procedural fairness was so fundamental that nothing further was required from Mr Nathanson to make out jurisdictional error. Edelman J explored (and lamented) what he described as the High Court’s erosion of the bedrock of natural justice ordinarily implied in statute, before concluding that Mr Nathanson’s appeal should be allowed.
Dr Michelle Sharpe is a Victorian barrister practising in general commercial, real property, disciplinary and regulatory law, 03 9225 8722, email msharpe@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au.
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