FEDERAL COURT OF AUSTRALIA

Degning v Minister for Home Affairs [2018] FCA 1152

ORDERS

THE COURT ORDERS THAT:

1.    Time is extended to the applicant to lodge an application for review so as to permit the filing of the application on 20 April 2018.

2.    To the extent necessary, leave is granted to the applicant to rely on his amended application for review dated 1 June 2018.

3.    The application as amended is dismissed.

4.    The applicant pay the respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This application is for judicial review of a decision of the Minister for Home Affairs (the Minister) made on 9 January 2018. That decision was to cancel Mr Degning’s Class BF transitional (permanent) visa under s 501(2) of the Migration Act 1958 (Cth) where the Minister reasonably suspected that Mr Degning did not pass the character test and Mr Degning had not satisfied the Minister that he did pass the character test.

2    It is worth repeating that on judicial review, it is for the Court to examine the lawfulness of the decision, including matters of procedural fairness, but not the merits of the decision.

Procedural background

3    Before the Minister made his decision, by letter dated 29 December 2016 Mr Degning was sent a “Notice of intention to consider cancellation of your visa under s501(2) of the Migration Act 1958”.

4    That letter stated that the Department of Immigration and Border Protection held information about Mr Degning’s criminal history “listed at the end of this notice,” which indicated that he had a substantial criminal record within the meaning of s 501(7) of the Migration Act and that as a result he did not pass the character test by virtue of s 501(6)(a) of the Migration Act.

5    Immediately above the list of enclosed documents was the following:

The following documents are also enclosed. The documents consist of information that is held by the department, which the decision-maker may rely on to decide whether you pass the character test; and if not, whether your visa should be cancelled.

6    The letter provided Mr Degning an opportunity to comment or provide information on whether he passed the character test and, should the decision-maker reasonably suspect that he did not, on whether the decision-maker should exercise his or her discretion to cancel Mr Degning’s visa.

The Minister’s decision

7    As I have already noted, the Minister said that he reasonably suspected that Mr Degning did not pass the character test and Mr Degning had not satisfied the Minister that he passed the character test. (That Mr Degning did not pass the character test was not in issue in this judicial review application.) The Minister said he had decided to exercise his discretion under s 501(2) of the Migration Act to cancel Mr Degning’s visa.

8    The Minister gave reasons for his decision which I summarise as follows.

9    On 24 July 2013, Mr Degning was convicted in the District Court of New South Wales of sexual intercourse – person with cognitive impairment and sentenced to 17 months imprisonment, suspended upon entering a bond for 17 months. The judge took into account an offence on a Form 1 to the effect that on the same day Mr Degning attempted sexual intercourse with a person who had a cognitive impairment.

10    The Minister noted that, having considered the evidence before him, the judge had accepted that Mr Degning’s sexual offending was “towards the lower end of the criminality within the section.” However, the Minister concurred with the judge when he remarked that the offence is a “very serious offence” and determined that a term of imprisonment was the most appropriate.

11    The Minister found that the sentence Mr Degning received on 24 July 2013 was a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender were the last resort in the sentencing hierarchy and the Minister considered that the court viewed the offending as very serious, notwithstanding the suspended nature of the sentence.

12    The Minister found that Mr Degning had a lengthy criminal record in Australia. His most recent conviction was on 21 September 2015 for drink driving with a mid-range of prescribed concentration of alcohol. He was sentenced to seven months imprisonment suspended on entering a good behaviour bond for seven months, and a nine month licence disqualification.

13    Mr Degning’s other convictions were prior to 2009 and dated back to 1977, and included offending relating to drugs, stealing, possession of stolen goods, drink driving, and assault. The penalties Mr Degning received varied from fines, licence disqualification, good behaviour bonds and terms of imprisonment of six months (1982) and nine months (1983).

14    The Minister found that Mr Degning’s conviction for “sexual intercourse – person with cognitive impairment” was very serious.

15    The Minister referred to the sentencing remarks of 24 July 2013.

16    At [33] of his reasons, the Minister said:

33. I note Mr DEGNING failed to declare his criminal convictions on his Incoming Passenger Cards dated 4 January 2004, 20 April 2004 and 02 March 2006, and I consider this indicative of a further disregard for the law.

17    At [34]-[35], the Minister said:

34.    I note from the sentencing remarks of 24 July 2013 that the Judge was of the view that Mr DENGING (sic) was unlikely to reoffend in a similar way because of his previous record, the fact that Mr DEGNING had not come into notice since being charged on 7 October 2009, and the shame and embarrassment Mr DEGNING’s offending has caused.

35.    Notwithstanding the Judge’s observation, I note that Mr DEGNING’s sexual offending in 2009 was when he was aged 48 years of age and involved him having taken advantage of a person with a cognitive impairment who was therefore vulnerable.

18    At [36], the Minister found that, overall, there was a risk, albeit low, that Mr Degning “will reoffend in a similar way.”

19    At [38], the Minister referred to Mr Degning’s three grandchildren. He said, at [39], he had taken into account Mr Degning’s representations regarding his relationship with his grandchildren, that he sees them regularly, that they adore him and that they would be devastated if he was to be removed from Australia.

20    At [40], the Minister said that he had treated the best interests of any affected minor children as a primary consideration and had concluded that it was in the best interests of the three grandchildren not to cancel Mr Degning’s visa.

21    Under the heading “Expectations of the Australian community”, the Minister said at [42]-[43]:

42.    I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached or whether there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of serious offences in Australia or elsewhere, it may be appropriate to cancel the visa of such a person. Mr DEGNING has breached this trust as he has been convicted of sexual intercourse - person with cognitive impairment in Australia. His lengthy criminal history in Australia also includes drink driving offences with his most recent committed in 2015 for which he received a term of imprisonment, albeit suspended.

43.    Given the serious nature of the sexual offence, as well as his serious driving offending conduct that also places members of the community at risk, I conclude that the Australian community would expect that Mr DEGNING should not hold a visa, notwithstanding his lengthy time residing in the Australian community.

22    The Minister then went on to consider, at [44] and following, Mr Degning’s ties to Australia, noting that Mr Degning had resided in Australia for some 49 years, having arrived as a young child aged seven. He had lived in Australia for most of his life and had substantial ties to the Australian community.

23    The Minister ended his reasons as follows;

CONCLUSION

57. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Act and (2) all other information available to me, including information provided by, or on behalf of Mr DEGNING.

58. Mr DEGNING has committed a serious crime, that of sexual intercourse – person with cognitive impairment, which is of a sexual nature, and involved a vulnerable member of the community, that being a person with an intellectual disability. Also he has multiple drink driving convictions with his most recent in 2015 incurring a suspended term of imprisonment. Mr DEGNING and non-citizens who commit such offence should not generally expect to be permitted to remain in Australia.

59. I find that the Australian community could be exposed to harm should Mr DEGNING reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr DEGNING. The Australian community should not tolerate any further risk of harm.

60. I found the above consideration outweighed the countervailing considerations in Mr DEGNING’s case, including the best interests of the [grandchildren] and the impact on his wife and other family members, I have also considered the length of time Mr DEGNING has made a positive contribution to the Australian community and the consequences of my decision for minor children and other family members,

61. I am cognisant that where harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct by Mr DEGNING, than I otherwise would, because he has lived in Australia for most of their (sic) life, or from a very young age.

62. In reaching my decision I concluded that Mr DEGNING represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

63. Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr DEGNING’s BF transitional (permanent) visa under s501(2) of the Act.

The amended application for judicial review

24    The amended application raises three grounds, as follows:

6.    The Minister denied the Applicant procedural fairness having the consequence that the decision was affected by jurisdictional error.

Particulars

(a)    The power to cancel a visa under s 501(2) of the Act was conditioned by a requirement to afford the Applicant natural justice (or procedural fairness);

(b)    Procedural fairness required the Minister to put the Applicant … on notice of the nature and purpose of the Minister’s inquiry, the issues to be considered by the Minister in conducting the inquiry, and the nature and content of information that the Minister might take into account as a reason for coming to a conclusion adverse to the Applicant.

(c)    By letter dated 29 December 2016 an officer of the Department of Immigration and Border Protection (the Department) the Applicant was informed that the Department held information about the Applicant's criminal history, which was said to indicate that the Applicant had a substantial criminal history within the meaning of s 501(7) of the Act, and that as a result, the Applicant did not pass the character test by virtue of s 501(6)(a) of the Act.

(d)    The information referred to in (b) (sic) above was said to include Incoming Passenger Cards dated 04 January 2004, 20 April 2004 and 02 March 2008 (the Incoming Passenger Cards).

(e)    The copies of the Incoming Passenger Cards enclosed with the letter of 29 December 2016 were poor quality and were difficult to read in parts (including in relation to the question relating to the Applicant’s prior convictions).

(f)    The Minister found that the Applicant failed to declare his criminal convictions on his Incoming Passenger Cards, considered this to be indicative of the Applicant's disregard for the law, and took this into account in determining that there is a risk, albeit low, that the Applicant will in the future reoffend in a manner similar to his previous offending.

(g)    The Applicant was denied procedural fairness in circumstances where:

a.    The Minister did not inform the Applicant that he had not declared his criminal convictions in the Incoming Passenger Cards.

b.    Contrary to the letter from the Department dated 29 December 2016, the Incoming Passenger Cards were not relevant to the question of whether the Applicant had a substantial criminal history within the meaning of s 501(7) of the Act, and that as a result, the Applicant did not pass the character test by virtue of s 501(6)(a) of the Act;

c.    The relevance of the Incoming Passenger Cards to the question of whether the Applicant’s visa should be cancelled was not obvious from the Incoming Passenger Cards themselves or any other information provided to the Applicant.

d.    The fact that the Applicant did not declare his criminal convictions on the Incoming Passenger Cards was not obvious on the face of the poor-quality copies provided to the Applicant;

e.    By reason of the matters (a)-(d), the Applicant was not informed of the nature and content of information that the Minister might take into account in reaching his decision.

f.    Further and in the alternative, the Minister did not inform the Applicant that issues to be considered by the Minister in his inquiry were:

i.    whether the Applicant had failed to declare his criminal convictions in the Incoming Passenger Cards; and

ii.    if so, whether any such failure had a bearing on the risk that the Applicant would, in the future, commit offences of a nature similar to his previous offending: and

g.    the Minister did not inform the Applicant of issues in (f) above, nor inform the Applicant of the adverse conclusion reached by the Minister in relation to those issues, in circumstances where:

i.    those issue and those conclusions were not apparent from the terms of … s 501 of the Act: and

ii.    those issues and those conclusions were not obvious on the material available to the Applicant.

7.    The Minister’s decision was illogical, irrational and legally unreasonable, having the consequence that the decision was affected by jurisdictional error.

Particulars

(a)    The Minister held that there was a risk that the Applicant will reoffend in a similar manner to his previous offending, which relevantly included drink­driving and one sexual offence.

(b)    The Minister acknowledged that there were extenuating family and personal circumstances associated with the Applicant's previous offending.

(c)    The Minister acknowledged that the Applicant had completed courses to address drink driving.

(d)    The Minister acknowledged that the Applicant pleaded guilty and showed some level of remorse and insight into his offending.

(e)    The sentencing judge who sentenced the Applicant for the offence of "Sexual intercourse – person with cognitive impairment” found that the Applicant was unlikely to reoffend in a similar manner.

(f)    The Applicant was given a suspended sentence for the offence of “Sexual intercourse – person with cognitive impairment”.

(g)    In light of the matters in (a)-(f) above, there was no rational or logical basis for concluding that there was a risk that the Applicant would offend again in the same manner.

(h)    The Minister held that the Applicant’s apparent failure to declare his convictions in the Incoming Passenger Cards was indicative for (sic) further disregard for the law. The failure of a person to declare a conviction on an incoming passenger card is not logically or rationally probative of the risk that the Applicant would offend in the same manner, that is by commiting (sic) drink driving offences, sex offences or any other offence for which the Applicant had previously been convicted.

(i)    The Minister held that the Applicant's sexual offending in 2009 involved him having taken advantage of a person with a cognitive impairment who was therefore vulnerable. The cognitive impairment of the victim was an· essential element of the offence “Sexual intercourse – person with cognitive impairment”. The cognitive impairment of the victim (or any consequent vulnerability) was not logically or rationally probative of the risk that the Applicant would, in future, offend in the same manner.

8.    The Minister's decision was affected by a denial of procedural fairness, having the consequence that the decision was affected by jurisdictional error, in circumstances where the Minister, although recognising that the interests of minor children were affected by his decision, failed to invite those minor children, or their legal guardian, to make submissions or give evidence on the issues relevant to the decision.

Particulars

(a)    The Minister informed the Applicant that the best interests of any minor children would be taken into account as a primary consideration.

(b)    The Applicant submitted to the Minister that the interests of his three grandchildren, who were minors, would be adversely affected by a decision to cancel the Applicant's visa.

(c)    The Applicant provided the Minister with the name of his grandchildren's guardians and the addresses where they resided.

(d)    The Minister recognised in his reasons for decision that the bests interests of the Applicant's three grandchildren were a primary consideration and that their best interests would be served by not cancelling the Applicant's visa.

(e)    The interests of the minor children in the decision to cancel the Applicant's visa was such that the minor children were entitled to be afforded procedural fairness in respect of the decision.

(f)     The Ministers obligation to afford the minor children was not satisfied by inviting the Applicant to comment upon their best interests.

(g)    The Minister did not make inquiries of the Applicant's grandchildren or their guardians or invite them to make submissions or give evidence in relation to the decision whether or not to cancel the Applicant's visa.

(h)    Procedural fairness required that the minor children, or the guardians on their behalf, be given an opportunity to make submissions and give evidence in relation to their interests in the decision whether or not to cancel the Applicant's visa.

Submissions

25    The applicant’s submissions in support of these grounds were as follows.

Ground 6

26    As to ground 6, the applicant submitted the denial of procedural fairness arose because, although the applicant was given the Incoming Passenger Cards, it was not obvious from the information given to the applicant that an issue in relation to the Minister’s decision was: (a) whether he had failed to declare his criminal record in the Incoming Passenger Cards; and (b) if so, how that might bear on the risk he would re-offend. Alternatively, the unfairness arose because the Minister did not disclose the “nature and the content” of the Incoming Passenger Cards. Further, the Minister did not give the applicant notice of adverse conclusions in relation to the issues that arose in respect of the Incoming Passenger Cards in circumstances where those conclusions were not obvious on the known material. The applicant referred to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 at 590-592 and to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [32]-[34].

27    The applicant submitted that the procedural unfairness in this case was acute by reason of the following matters.

28    First, the notice of intention to cancel the applicant’s visa was internally contradictory and confusing. The body of the notice stated that the information listed at the end of the notice was relevant to whether the applicant had a substantial criminal record and did not pass the character test. That was not correct in the case of the Incoming Passenger Cards. If they were relevant at all, they were relevant to the exercise of the Minister’s discretion in the event it was concluded that the applicant did not pass the character test.

29    Secondly, the copies of the Incoming Passenger Cards enclosed with the letter of 29 December 2016 were poor quality and were difficult to read. It was not at all obvious from the copies given to the applicant that the Incoming Passenger Cards even required declarations of criminal convictions, nor whether he had in fact declared them. In the circumstances, it cannot be said that the “nature” or “content” of the adverse material was disclosed to the applicant.

30    Thirdly, the inference that a failure to declare a criminal conviction on an Incoming Passenger Card is indicative of a propensity to reoffend was so tendentious that, if it could be considered at all, the issue had to be squarely raised. The less obvious the issue, the greater the requirement to give proper notice. The less clear the evidence, the greater the need to explain its relevance: cf SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486; 232 FCR 282 at [52]; AZR16 v Minister for Immigration and Border Protection [2017] FCA 1453 at [51].

31    Fourthly, the Minister chose to make this decision personally and without affording the applicant an oral hearing. The Minister’s election so to proceed made it even more important that the written correspondence with the applicant clearly set out the relevant issues and disclosed any adverse evidence.

32    Fifthly, the decision to cancel the applicant’s visa had severe, immediate and potentially permanent effects on the applicant’s rights and liberties. The requirements of procedural fairness were more onerous in such a case.

33    Sixthly, it was not at all surprising that the applicant did not address the Incoming Passenger Cards in the submissions he did make given the relevance of the cards was not identified. However, it was not difficult to conceive of how such a submission could be made. The applicant could have explained omission, or he could have made submissions as to why one would not draw any inference as to his propensity to re-offend from the Incoming Passenger Cards. In order to make a “meaningful” submission, however, it was necessary for the Minister to put the incoming passenger cards “into context” by explaining their relevance: cf. SZNKO v Minister for Immigration and Citizenship [2010] FCA 297; (2010) 184 FCR 505 at [27]. That the applicant was deprived of an opportunity to make a submission in relation to the issue, of itself, constituted a denial of procedural fairness: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [60]; Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [89] and [92].

34    Seventhly, it was not to the point that the Minister also relied on other matters in reaching his decision. The Minister clearly gave some weight to the applicant’s apparent failure to disclose information on the Incoming Passenger Cards. The Minister’s assessment of the applicant’s prospect of re-offending was somewhat finely balanced given he accepted the risk was low. If the applicant had been given the opportunity to make a submission on the issue, the Minister might have arrived at a different conclusion.

35    Finally, the procedural fairness obligations in relation to a decision under s 501 arose at common law and not by reference to the statutory code applicable in relation to migration decisions made by the Administrative Appeals Tribunal. It would be surprising, however, given the history of those provisions, if the general law obligations of procedural fairness were less demanding than the statutory code: cf SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 96 ALD 1 at [14]. If ss 359A or 424A had applied in this case, there was no doubt that the Minister would have had to not only give “clear particulars” of the Incoming Passenger Cards, but also explain the relevance of that information.

36    The Minister’s submissions in relation to this ground were as follows.

37    First, it was submitted, the notice of intention to consider cancelling the applicant’s visa was not contradictory and confusing. The fact that in the body of the notice reference was made to information about the applicant’s criminal history “listed at the end of the notice” did not take anything away from the paragraph immediately above the last four dot points, see [5] above. The Minister submitted that the words “information about your criminal history listed at the end of this notice” should be read distributively and did not mean that all such information indicated that the applicant had a substantial criminal record.

38    Secondly, there was no evidence for the assertion that the copies of the Incoming Passenger Cards enclosed with the notice were “poor quality and difficult to read.”

39    The substance of this ground was, in any event, misconceived. It focused on [33] of the Minister’s statement of reasons, set out at [16] above.

40    The substance of this ground of review was relevantly identical to that considered by Perry J in Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; 249 FCR 275 at [48]-[49].

41    The Minister did not accept that the applicant did not apprehend the relevance or significance of the Incoming Passenger Cards. The correct inference to be drawn from his failure to address those documents was that he had nothing to say about his failures to disclose his earlier convictions. In his case there were repeated failures to disclose a considerable number of convictions.

Ground 7

42    The applicant referred to the principles of legal unreasonableness in Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [35].

43    He put his challenge under this ground in two ways.

44    The first was specifically directed at the Minister’s reasoning in relation to the Incoming Passenger Cards. The Minister concluded that the failure of the applicant to disclose his criminal convictions was “indicative of a further disregard for the law” and a matter which supported the conclusion that the there was a risk, albeit low, that the applicant would offend again “in a similar way”: see the Minister’s reasons at [33] and [36], set out or referred to at [16]-[18] above. The applicant submitted that the reference to “similar” offending was to be understood as a reference to sexual and driving offences. The difficulty with this finding, the submission went, was that the failure of the applicant to accurately complete a routine administrative form upon arrival in Australia was simply not probative of a risk that the applicant would, in future, commit a specific type of offence – i.e. a sexual offence or a traffic offence: cf Muggeridge at [54]-[55]. The applicant submitted that even if a person told a deliberate lie in completing an administrative form, it could not justify an inference that the person was any more or less likely to be a sex offender, or a drink driver. Indeed, even looking at the position more generally, the applicant’s failure to refer to criminal convictions in the Incoming Passenger Cards was not rationally capable of supporting an inference that he had disregard for the law or was likely to reoffend in any manner.

45    The second way in which the applicant put his unreasonableness contention attacked the Minister’s assessment of the risk of re-offending more generally. The Minister accepted that there were extenuating family and personal circumstances associated with the applicant’s previous offending. The Minister acknowledged that the applicant had shown a level of remorse and taken steps to ensure he would not offend again. The Minister also acknowledged the fact that the applicant received a suspended sentence for his most serious offence, and that the sentencing judge had determined he was unlikely to re-offend. All of these matters clearly justified the Minister’s conclusion that there was a low risk the applicant would re-offend.

46    The applicant submitted that the Minister effectively bypassed any meaningful assessment of re-offending by imposing a risk threshold that was outside the range reasonably permitted by the statutory discretion. Specifically, the decisive consideration for the Minister was that he “could not rule out the possibility of further offending by [the applicant]”. That was an impossible standard of certainty to require. No decision-maker could ever exclude all possibility that a person might re-offend (or even offend for the first time). On the Minister’s approach, it was difficult to conceive of a situation where any person would obtain a favourable exercise of the statutory discretion. The Minister’s reasoning was legally unreasonable because it was inconsistent with the existence of a statutory discretion.

47    The Minister’s submissions in relation to this ground were as follows.

48    The Minister submitted that it was not correct to assert that the applicant’s failure to disclose on the Incoming Passenger Cards his previous convictions amounted to no more than a failure to accurately complete a routine administrative form. The Incoming Passenger Cards included a declaration in the following terms:

The information I have given is true, correct and complete. I understand failure to answer any questions may have serious consequences.

49    In effect, the applicant made a false declaration on an official form on three separate occasions. The Minister considered this ‘indicative of a further disregard for the law’.

50    The Minister submitted it was not open to argue that disregard for the law was not probative of the risk of a person offending in the future. The applicant’s submissions did not go that far. What was sought to be asserted by the applicant was that it was not probative of the risk of a specific offence being committed. In this regard, the applicant relied on what had been said by Charlesworth J (with whom Flick and Perry JJ agreed) in Muggeridge at [54]-[55]. There were, however, significant difficulties associated with reliance being placed on earlier judgments in the context of an allegation of legal unreasonableness, which was an inherently fact dependent inquiry. The Court’s conclusions in Muggeridge were heavily dependent on the particular facts of that case and the terms of the Minister’s statement of reasons, and should not be interpreted as a general statement about the potential relevance of disregard for the law to an assessment of the risk of a person reoffending, whether in general terms, or in a particular or specific way: see Maxwell at [41] per Perry J.

51    Unlike Muggeridge, the Minister submitted, this was not a case where it could be said that the Minister’s findings were not logically open to him, nor did the finding disclose any lapse of logic (whether one agreed with the findings or not). Further; whether one focused on a specific offence or the inquiry was more general in nature, disregard for the law could not be said to be an irrelevant consideration in determining the risks of a person committing an offence.

52    There was no substance to the applicant’s second argument under this ground, the Minister submitted. In the present case, in the context of assessing the risk the applicant posed to the Australian community, the Minister noted a number of matters about both the applicant’s past sexual offending and his various driving offences. Some of the Minister’s findings were favourable to the applicant and some were adverse. It was plain from that part of the decision that in assessing the risks posed by the applicant to the Australian community the Minister focused on the applicant’s past criminal history. This was hardly surprising; while past behaviour was not determinative of future conduct, it was the best indicator of what may happen in the future.

53    Significantly, the Minister noted that the applicant’s “criminal history shows that despite some periods of years with no convictions, he continued to variously offend, despite court dispositions, including sentences of imprisonment in 1982, 1983 and 2013 and licence disqualifications”. Ultimately, the Minister went on to conclude that there was a risk, albeit low, that the applicant would reoffend in a way similar to his previous offending, and that if he did engage in such conduct, it could result in psychological and/or physical harm or injury to a member or members of the Australian community. These conclusions were reasonably open to the Minister on the material before him, and on the findings of fact that he made in considering whether to cancel the visa.

Ground 8

54    The applicant contended that the interests of his three grandchildren, who were minors, would be adversely affected by a decision to cancel his visa. The applicant provided the Minister with the name of his grandchildren’s guardians and the addresses where they resided. The Minister recognised in his reasons for decision that the best interests of the applicant’s grandchildren was a primary consideration. This was consistent with Australia’s international obligations. The Minister further found that the grandchildren’s best interests would be served by not cancelling the applicant’s visa.

55    Despite recognising their interest in the decision, and the potentially adverse effect upon them, and despite being informed of their addresses, the Minister took no step to contact the children and invite them to comment on the proposed decision.

56    The applicant submitted that the effect of the visa cancellation decision upon the interests of the grandchildren gave rise to a separate and independent obligation of procedural fairness. Procedural fairness required a decision-maker “to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power”: SZSSJ at [82]. Interest in that sense was not limited to a legal right and was focussed upon the “practical consequences” of the decision: Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; 244 FCR 305 at [51] and the cases there cited.

57    The Minister, having determined that the grandchildren had an interest in the decision, should have sought comment from them (or their guardian).

58    The applicant accepted that the submissions made in respect of this ground sat uncomfortably with the decision (but not the reasoning) in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1. It was submitted that Ex parte Lam could be distinguished, however, because the High Court’s reasoning was limited to the question of whether, in the particular circumstances, the failure of the decision-maker to contact the visa holder’s minor children constituted a denial of the obligation of procedural fairness owed to the visa holder: referring to WZARH at [34]-[36]. No issue was raised in Ex parte Lam as to the question of whether obligations of procedural fairness were owed to the children directly.

59    The Minister submitted, in relation to this ground, that it was a novel one, alleging a denial of procedural fairness on the basis that, while the Minister recognised that the interests of the applicant’s three minor grandchildren would be adversely affected by a decision to cancel the applicant’s visa, and while the applicant provided the Minister with the name of his grandchildren’s guardians and the addresses where they resided, the Minister took no step to contact the children and invite them to comment on the proposed decision.

60    The Minister submitted there were a number of difficulties with this ground.

61    First, on its face, this ground seemed to assume that there was a positive obligation on the Minister to contact and invite comment from every person who was either claimed by an applicant, or recognised by the Minister, as at least potentially affected by a decision made in the exercise of discretionary powers. That obligation was apparently said to be owed directly to these third parties, and not to the person who was the subject of the proposed decision, with the practical consequence that a failure of the subject of the proposed decision to provide such material activated the underlying obligation of the Minister to seek comments directly from third parties. Apart from the fact that this raised issues about potentially serious breaches of people’s privacy, the proposition was not supported by any authority that the respondent was aware of and, as the applicant’s submissions recognised, did not sit comfortably with the decision in Ex parte Lam. The Minister argued that this discord extended to the fundamental assumptions underlying the reasoning in that case.

62    Secondly, even assuming that such an obligation was owed to people potentially or actually affected by such a decision, it was less than clear that a person other than the person who claimed to have been denied procedural fairness could rely on the alleged failure to provide them with natural justice.

63    Finally, and perhaps most importantly, the Minister submitted, in the present case he accepted that the applicant’s three grandchildren would be adversely affected by a decision to cancel the applicant’s visa. The Minister gave that consideration “less weight” as there was “no evidence to suggest that [the applicant] is responsible for the day to day care of his grandchildren”. (In fact, there was evidence that the children resided with others.) There was, however, no basis to assert that the grandchildren suffered any practical injustice in the circumstances.

Consideration

64    The first matter to consider is the application for an extension of time. The applicant required an extension of time pursuant to s 477A(2) by reason of his failure to commence proceedings within the time prescribed under s 477A(1) of the Migration Act.

65    The “date of the migration decision” was the date of the written notice of the decision, which was 25 January 2018. The last day an application could be made under s 477A(1) was therefore 35 days after 25 January 2018. The proceedings were commenced on 19 April 2018.

66    The application was supported by an affidavit of Ms Elizabeth Steer, affirmed on 19 April 2018 and of the applicant, affirmed 26 June 2018.

67    Ms Steer deposed that the reasons for the applicant’s delay in commencing these proceedings were that:

a.    The Applicant was notified of the Migration Decision on 25 January 2018. He was detained on that day, and has remained in immigration detention since. This has caused some delays in the Applicant obtaining documents and providing instructions.

b.    The Applicant’s previous solicitors did not lodge an appeal or application for the Applicant.

c.    On or about 15 March 2018 the Applicant approached Mr Blanks for advice in relation to this matter.

d.    Mr Blanks obtained the Applicant’s file from the Applicant’s previous solicitors on 27 March 2018.

e.     The Applicant's file involves complex questions of fact and law that required detailed analysis before this application could be finalised.

f.     The Applicant is in immigration detention at Villawood and has been notified by his case officer that he is on the removal pathway.

68    In his affidavit, the applicant gave more detailed evidence to support some of these propositions, in particular his attempts, with the assistance of his daughters, to get legal advice and to file an application in this Court.

69    The Minister did not oppose the extension of time application.

70    In order to grant an application under s 477A(2), the Court needs to be satisfied that “it is necessary in the interests of the administration of justice” to make the order extending time: s 477A(2)(b). I am so satisfied. In my opinion, the length of delay is modest given the applicant’s circumstances and the applicant has provided an explanation for the delay. The respondent Minister points to no prejudice, consistently with not opposing the extension of time application. Similarly, the application, assessed on a reasonably impressionistic basis, is arguable. I grant an extension of time to the applicant to lodge an application for review so as to permit the filing of the application on 19 April 2018.

71    To the extent necessary, I also grant leave to the applicant to rely on his amended application for review dated 1 June 2018.

72    I turn now to consider the grounds of review.

Ground 6

73    I am not persuaded on the evidence that the copies of the Incoming Passenger Cards enclosed with the letter of 29 December 2016 were illegible such that it was not clear that they required declarations of criminal convictions or whether the applicant had in fact declared them. It appeared that the copies of the Incoming Passenger Cards originally relied on in the applicant’s submissions were copies obtained from the files of the applicant’s former solicitors. The applicant no longer had in his possession the original letter to him dated 29 December 2016 and could not produce it in answer to a Notice to Produce served on him. Tendered without objection were copies of the Incoming Passenger Cards retrieved from the records of the respondent’s Department. Those copies were legible. The applicant has not proved that the copies of the Incoming Passenger Cards enclosed with the letter to him dated 29 December 2016 were illegible. The applicant gave no evidence that those copies were illegible.

74    The first page of the letter of 29 December 2016 could, by itself, be taken to indicate that the Incoming Passenger Cards were listed as “information about your criminal history” because those Incoming Passenger Cards were “listed at the end of this notice” along with Ministerial Direction 65, the National Police Certificate and the Court Attendance and New South Wales Police Fact Sheet. In my opinion it is not a fair reading of the letter to construe the words used on the first page to mean that each and every document listed at the end of the notice indicated that the applicant had a substantial criminal record. The reference to the information listed at the end of the notice is to be read distributively and not so as to mean that every piece of information there listed indicated the applicant had a substantial criminal record. Further, approximate to that listing, on page three of the letter of 29 December 2016, the Incoming Passenger Cards were listed as “documents… which the decision-maker may rely on to decide whether you pass the character test; and if not, whether your visa should be cancelled.” If there was any ambiguity, which I do not accept, that specific statement dispelled it.

75    For these reasons, I reject the submission on behalf of the applicant that the notice of intention to consider cancellation, the letter dated 29 December 2016, was “internally contradictory and confusing”.

76    The Incoming Passenger Cards showed that on 4 January 2004, 20 April 2004 and 2 March 2006 the applicant denied in writing that he had any criminal convictions. In each case the applicant declared that the information he had given was true, correct and complete. Those declarations were inconsistent with the contents of the National Police Certificate which also accompanied the letter of 29 December 2016.

77    In my opinion, the context was provided by the nature of the letter, which was directed to the applicant’s character, including his criminal history and whether his visa should be cancelled in light of his failure to pass the character test. The three Incoming Passenger Cards showed the applicant denying the existence of his convictions from 1982 to 2000. In my opinion, it was clear from the provision to the applicant of the Incoming Passenger Cards that an issue could be the applicant’s failure to declare his criminal record. It was not necessary to specify, so as to comply with procedural fairness, how this might bear on the risk that the applicant may re-offend.

78    In my opinion, the potential adverse conclusions that could be drawn from the Incoming Passenger Cards were obvious. I reject the submission that it could not be said that the “nature” or “content” of the adverse material was disclosed to the applicant.

79    The principles in Alphaone and SZBEL suggest no different conclusion. The context and subject-matter were not whether the applicant was entitled to a protection visa, as in SZBEL, but were much more specific, in effect whether the applicant’s visa should be cancelled in light of his failure to pass the character test.

80    Further, I do not accept that the inference that a failure to declare a criminal conviction on an Incoming Passenger Card is indicative of a propensity to re-offend is tendentious or so tendentious that the issue had to be squarely raised.

81    In my opinion, the other matters raised on behalf of the applicant under Ground 6 take the issue no further.

82    Leaving aside the questions of illegibility and potential confusion, I note that my conclusions on this ground are consistent with the conclusions of Perry J in Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; 249 FCR 275 at [48]-[49], as follows:

[48] With respect to ground 4 of the application for judicial review, the applicant contended that the Minister relied on evidence to the applicant’s detriment without affording him an opportunity to respond. The detrimental evidence was identified by the applicant as:

(1)    the Incoming Passenger Card dated 14 June 2014 including the alleged commission of an offence with respect to the Incoming Passenger Card;…

(2)    ….

[49] The failure to declare convictions on the Incoming Passenger Card was relied upon by the Minister as “a further indication of an ongoing disrespect for authority” (at [26] of the Minister’s reasons). As noted above at [7], the Incoming Passenger Card was identified in the letter dated 14 November 2014 to the applicant as information on which the decision-maker may rely to decide whether to cancel his visa. In my view, that afforded the applicant sufficient notice that the document may be used by the Minister against him in determining the cancellation decision. Notwithstanding the applicant’s submissions to the contrary, I do not consider that anything further was required in order to afford the applicant procedural fairness in the context of a notice of an intention to cancel by reason of the applicant’s substantial criminal record and the presence of an apparently false statement on the Incoming Passenger Card by him that he had not been convicted of any criminal offences.

83    I reject ground 6.

Ground 7

84    I do not accept the applicant’s submission that his failure “to accurately complete a routine administrative form upon arrival in Australia is simply not probative of a risk that the Applicant would, in future, commit a specific type of offence”.

85    I do not accept that the Incoming Passenger Cards may be characterised adequately as routine administrative forms.

86    What the Minister said at [33] was that the applicant’s failure to declare his criminal convictions was indicative of a further disregard for the law. Read fairly, this was a step to the conclusion, at [36], that there was a low risk that Mr Degning would re-offend in a similar way. I do not regard this process of reasoning as legally unreasonable. I do not accept the emphasis put by the applicant on the expression “in a similar way”: the Minister was considering whether the applicant had a propensity to commit further offences and reasoned that if the applicant did re-offend, he may re-offend in a manner similar to his previous offending.

87    The applicant referred to Muggeridge in this respect. The essential conclusion on this point in Muggeridge is to be found in the judgment of Charlesworth J (Flick and Perry JJ concurring) at [56], as follows:

[56] In the result, the Minister exercised the discretion in a manner that purported to advance an object of the statute, and yet there is no evident rational connection between that legitimate object and the particular materials upon which the Minister is said to have relied. A rational connection in a case such as the present should not depend upon unnatural implications drawn from the reasons that cannot be reconciled with the express findings concerning Mr Muggeridge’s demonstrated rehabilitation, his serious physical debilitation and the absence of evidence that he had had any connections with like motorcycle clubs for more than two decades.

88    In other words, Muggeridge turned on its own facts in this respect, the fact-finding being internally inconsistent. No such inconsistency has been identified in the fact-finding in the present case.

89    The second limb of the argument was that the Minister by-passed any meaningful assessment of re-offending “by imposing a risk threshold that was outside the range reasonably permitted by the statutory discretion” and this was therefore inconsistent with the existence of the statutory discretion. In my opinion, what the Minister said at [59] was no more than another way of putting the earlier conclusion, at [36], that there was a low risk that Mr Degning will re-offend in a similar way: see [86] above. Again, I do not regard this process of reasoning as legally unreasonable or inconsistent with the existence of the statutory discretion.

90    I reject ground 7.

Ground 8

91    The claim of a failure to afford procedural fairness under this ground is that the Minister took no step to contact the applicant’s three minor grandchildren and invite them to comment on the proposed decision. It appears to be accepted on behalf of the applicant that the interests of his grandchildren were taken into account in the Minister’s decision.

92    In my opinion it is not accurate to say that the Minister had determined that the grandchildren had an interest in the decision, and that therefore he should have sought comment from them or from their guardian.

93    In my opinion, this is to confuse the interests of the grandchildren as a mandatory relevant consideration with an interest founding procedural fairness to each of them. Put differently, the grandchildren are not the subject of the decision or directly affected by it: see Aronson M, Groves M, Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters (Professional) Australia Limited, 2017) at [7.80] and [7.100].

94    In my opinion, a requirement to take into account a particular consideration, here the interests of the grandchildren in a decision to cancel the applicant’s visa, does not translate, without more, into an obligation to provide procedural fairness to those grandchildren. I am not persuaded that the power in question, to cancel the applicant’s visa, defeats or prejudices the grandchildren’s rights or interests so as to require that they, or their guardians, be given an opportunity to be heard. As illustrated by Ex parte Lam, the interests of a child may be taken into account without giving an opportunity to be heard to the child or to the child’s carer or guardian. In the present case, in my opinion, there was no departure from procedural fairness: WZARH at [30] per Kiefel, Bell and Keane JJ and [61] per Gageler and Gordon JJ.

95    In my view the flaw in the submission is similar to that identified by Lehane J in Botany Bay City Council v Minister of Transport and Regional Development [1996] FCA 394; 66 FCR 537 at 556. His Honour said it was by no means inconsistent with a decision that there was no duty to hear persons in relation to a proposed decision to hold also that there were persons “aggrieved” by such a decision who had standing to impugn it. The Full Court dismissed an appeal: City of Botany Bay Council v Minister of State the Transport and Regional Development (1996) 45 ALD 125.

96    Lehane J said at 568:

The argument, as I think is not uncommon, proceeded on the basis that there was a relationship between the questions of standing and, in the context of procedural fairness, of a right to be heard. Where, of course, a decision affects an individual interest it is highly likely that a conclusion on one matter will dictate a conclusion on the other: it is of course inconceivable that someone entitled to a hearing in relation to a proposed deportation order would not, if denied a hearing, be entitled to challenge the order once made. It is, however, different I think in what may be described loosely as a public interest case, such as the present. In such a case it would not be at all unusual, I think, to find that a person with standing to challenge a decision once made had, nevertheless, no right to be heard in relation to its making: as will be apparent, I think this is such a case. Ogle v Strickland was, I should think, another; and North Coast Environment Council [Inc v Minister for Resources] may well have been a third. In reality, they are in my view separate questions, in relation to each of which there is a distinct set of principles, emerging from strikingly separate lines of authority.

(Citations omitted.)

The passage was cited with approval in Griffith University v Tang [2005] HCA 7; 221 CLR 99 at 118 [45], per Gummow, Callinan and Heydon JJ.

97    In the present case, the grandchildren of the applicant are not parties to the application and it is difficult to see how the applicant may complain of a denial of procedural fairness to the grandchildren, rather than to himself: see Comcare v Post Logistics Australasia Pty Ltd [2012] FCAFC 168; 207 FCR 178 at [99] where the Full Court said that the appellant in that case could not complain of a denial of procedural fairness to someone else. Contrary to the submission on behalf of the applicant, taking Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 to mean that a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all, does not affect who may come to the court for relief. I see no analogy between the position of the applicant and a public interest group.

98    It is submitted on behalf of the applicant that in Ex parte Lam it was not argued that obligations of procedural fairness were owed to the children directly. This would appear to be the case. Indeed McHugh and Gummow JJ noted at [56] that counsel for the applicant accepted that, in the absence of the statement in the Departmental letter of 7 November 2000, procedural fairness would not have required the officers of the Department to interview the carers.

99    But, in my opinion, neither the reasons nor principle provides a foundation for the submission that the Minister denied procedural fairness to persons not parties to the present proceedings.

100    In Ex parte Lam the children had not been contacted but there was a letter from a Ms Tran, the letter being described as from the carers of the children. The narrow point argued was that the officer of the Department, having stated in a letter dated 7 November 2000 to the applicant that the Department “wishes to contact [the children’s carers] in order to assess your relationship with the children, and the possible effect on them of the decision to cancel your visa”, denied procedural fairness to the applicant. This argument was rejected. One of the reasons for rejecting the submission was that the applicant had not lost an opportunity to make representations. Further, as Gleeson CJ said at [38], there was no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant’s children. As Hayne J said at [110], material before the Minister for him to consider in making his decision included detailed material about the children and the effect on them that cancelling the applicant’s visa would have.

101    Independently, in my opinion, it is also difficult to reconcile this contention with any practical injustice suffered by the grandchildren where the Minister concluded, at [40], that it was in the best interests of the three grandchildren not to cancel Mr Degning’s visa: see Ex parte Lam at [37]-[38].

102    I reject ground 8.

Conclusion

103    The application, as amended, for judicial review of the Minister’s decision dated 9 January 2018 should be dismissed, with costs.

Associate:

Dated:    7 August 2018