FEDERAL COURT OF AUSTRALIA

Milne v Minister for Immigration and Citizenship [2011] FCAFC 41

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, such costs to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from orders of a single Judge of the Court (Gray J) dismissing an application by the appellant, William Thomas Dunbar Milne, seeking to set aside a decision of the Administrative Appeals Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the respondent Minister for Immigration and Citizenship (“the Minister”) to cancel the appellant’s Class BF Transitional (Permanent) Visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Migration Act”) on the ground that the appellant did not pass the character test.

2    The facts which led the Minister’s delegate to conclude that the appellant did not pass the character test were summarised by the learned primary Judge as follows, at [3] of his reasons;

The applicant is a citizen of the United Kingdom. He has resided in Australia since 1970. On 11 May 2005, in the County Court of Victoria, he pleaded guilty to one count of incest, two counts of sexual penetration of a child under the age of 16 and 16 counts of indecent acts with or in the presence of a child under the age of 16. The offences occurred between May 2001 and May 2004, and involved a granddaughter of the applicant, as well as the granddaughter’s friends and children of family friends, all of whom were aged between 7 and 11. The applicant was sentenced effectively to seven years’ imprisonment with a minimum of five years to be served before release on parole. His earliest release date was to be 1 May 2010.

3    His Honour then noted the presence of s 476A and related provisions of the Migration Act and concluded, at [7] of his reasons;

… The effect of these provisions in the present case is that the Court has original jurisdiction to deal with an application for mandamus (and for ancillary or consequential relief) in respect of the Tribunal’s decision, which was made pursuant to s 500 of the Migration Act, but can only grant relief if there was jurisdictional error on the part of the Tribunal in making the decision.

4    On the hearing of this appeal, no challenge was made to that analysis of the relevant statutory provisions or to his Honour’s conclusion that “there was no doubt that the applicant did not pass the character test, so that the discretion conferred on the Minister (and exercised in this case by a delegate of the Minister) to cancel the visa was enlivened.”

5    Central to the decision of the Tribunal which is the subject of this appeal was the existence of a Ministerial Direction No 21 given pursuant to s 499 of the Migration Act. The relevant provisions of Direction No 21, which was applicable to the decision made in respect of the appellant but has since been superseded, were;

PRELIMINARY

This Direction consists of two parts. Part 1 provides directions on the application of the Character Test. Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. If the non-citizen does not pass the Character Test, decision-makers are to exercise the discretion to consider whether to refuse or cancel a visa, taking into account primary and other considerations. Part 2 provides directions on what these considerations are and the weight to be given to them.

...

PART 2 - EXERCISING THE DISCRETION

2.1    If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Weight of considerations

2.2    The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

PRIMARY CONSIDERATIONS

2.3    In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)    the protection of the Australian community, and members of the community;

(b)    the expectations of the Australian community; and

(c)    in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Protection of the Australian Community

...

2.5    The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(a)    the seriousness and nature of the conduct;

(b)    the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c)    whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

...

b.    likelihood that the conduct may be repeated (including any risk of recidivism)

2.10    It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:

...

(c)    the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.

c.    general deterrence - the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons

2.11    General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:

(a)    the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and

(b)    the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.

...

OTHER CONSIDERATIONS

2.17    When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations.

6    As the learned primary Judge observed, the appellant before him challenged the Tribunal’s decision on three grounds. The first was that the Tribunal had erred in the consideration of general deterrence required by cl 2.11 of Direction No 21. The second ground was that the Tribunal had denied the appellant procedural fairness by relying heavily on his failure to undertake rehabilitation without informing him that it proposed to rely in that way on that factor and without adjourning the hearing of the application before the Tribunal to allow him to adduce evidence directed to it. The third ground was that the Tribunal had misdirected itself by saying that considerations other than those designated in Direction No 21 as primary considerations must be given less weight than the primary considerations.

7    Of those three grounds, only the second was pressed by Counsel for the appellant on the hearing of this appeal. That was made clear by this identification, in Counsel’s written outline of submissions, of the “ISSUES PRESENTED BY THE APPEAL”;

A.    Whether the learned primary judge fell into appealable error in not finding that the Tribunal denied the Appellant procedural fairness by making an adverse finding against him based on his non-completion of a rehabilitation program without affording him a reasonable opportunity to present evidence of his desire to undergo such a program.

B.    Whether the learned primary judge fell into appealable error in not finding that the Tribunal should have drawn [to] the Appellant’s attention the issue of his willingness to undergo a sexual offender program, which he had been unable to undergo in prison, and given him a meaningful opportunity to comment on this matter in the context of his prospects of further rehabilitation.

8    The observations and findings of the Tribunal about the desire or willingness of the appellant to undergo a rehabilitation program are to be found first at [21] of its reasons, where it was noted;

On 27 October 2005 the Reporting Officer at HM Prison Ararat told the Department that Mr Milne was prepared to participate in any sexual offender program, but that this had not occurred. The officer assessed Mr Milne as having a moderate risk of re-offending. Mr Milne said that he has not attended any rehabilitation or sex offender programs because prison authorities had decided that any such programs should be undertaken after his release on parole.

9    After discussing the gravity of the offences of which the appellant had been convicted, the Tribunal went on to observe, at [23] of its reasons;

On the question of the likelihood that the conduct may be repeated (paragraph 2.10 of the Direction), the Tribunal takes into account that the sentencing Judge noted that a consulting forensic psychiatrist could find no major cognitive deficit or other condition that might have impaired Mr Milne’s judgment or produced sexual disinhibition and inappropriate sexual contact. The psychiatrist was unable to provide any ready explanation for the misconduct, and considered that any depressive disorder occurred after the offending behaviour became known and Mr Milne’s wife had abandoned him. The sentencing Judge concluded:

This court has formed the very clear view on the evidence that that [sic] your pattern of offending is paedophilic in nature. It has also formed the clear view, given the pattern of your past offending, that without treatment, at least in the appropriate circumstances, you would [be] likely to further offend against children.

10    The Tribunal then referred to comments made by the appellant in 2005 and on 21 February 2009 respectively to the effect that his offending had been a “one-off situation” and that he had not caused any physical harm to any of his victims. The Tribunal concluded, at [24] of its reasons, that those comments “demonstrate that he has not gained insight into the nature and consequences of his offending. He has not completed a sexual offender program or any meaningful rehabilitation or treatment.”

11    The Tribunal also referred to the appellant’s prospects of rehabilitation when evaluating the primary consideration enumerated in cl 2.3 of Direction No 21. In that context, it said, at [25] of its reasons;

The Tribunal finds that Mr Milne’s criminal history over a three-year period, together with a lack of medical evidence that he was suffering from any diagnosed condition, support the conclusion that Mr Milne remains at a considerable risk of re-offending. His wife was unable to detect or prevent the offending behaviour, even though she lived with Mr Milne and was close to him. Ms Wheeler, in whose care Mr Milne will be released in May 2010, has doubts about the extent of his offending and sees no need for him to be kept away from children. The suggestion that Mr Milne be accompanied by an adult appears to be concerned more with Mr Milne’s safety than any concerns for the welfare of the public. This has serious potential consequences for the protection of the Australian community, particularly young children who are especially vulnerable.

12    The same notion of the appellant’s desire for, and ability to achieve, rehabilitation was revisited when the Tribunal discussed, at [30], the second primary consideration enumerated in cl 2.3(b) of Direction No 21, the expectations of the Australian community. The Tribunal there said;

Although Mr Milne had no prior convictions at the time of the offences, and the Australian community would expect that he should be given an opportunity to change his behaviour, Mr Milne has not shown an ability and genuine desire to do so. The Tribunal is satisfied that, although Mr Milne has spent most of his adult life in Australia, the community would expect that the perpetrator of such repugnant crimes, who is assessed as being at some risk of re-offending and who shows little evidence of stable and lasting rehabilitation, would have his or her visa cancelled in the absence of genuine remorse and medical or other reasonable explanation for the offending. Therefore in respect of the second primary consideration the Tribunal finds strongly in favour of cancellation [sic] the visa.

13    As to the “other considerations” which could be taken into account pursuant to cl 2.17 of Direction No 21, the Tribunal reviewed, in a way tending to an exercise of its discretion favourably to the appellant, the matters, mainly personal to him, which it regarded as relevant under this head. As a result, it concluded, at [38] of its reasons;

… Although there is no evidence of rehabilitation or treatment, the Tribunal takes into account that his conduct in gaol has been good. On balance, in respect of the secondary considerations, the Tribunal finds against the cancellation of the visa.

14    The learned primary Judge was himself called on to examine whether the appellant had been accorded procedural fairness in relation to the issue of rehabilitation. He observed, at [33]-[35] of his reasons;

33    Counsel for the applicant argued that the Tribunal denied the applicant procedural fairness by failing to advise him that it proposed to make a finding adverse to him about the fact that the applicant had not undertaken any rehabilitation program, and giving the applicant an opportunity to provide further material, and to make submissions, in relation to this proposed finding. The argument involved the proposition that the Tribunal had made the lack of any rehabilitation course a “key basis” of its reasoning and used it against the applicant in a way that he could not have foreseen.

34    The applicant told the Tribunal that he had been told by the Parole Board that he did not have to transfer to another prison to do a sex offenders’ course, but that he would be offered a short course once he was released. In her evidence to the Tribunal, the applicant’s daughter explained that, because of the need to transfer to another prison, the question of rehabilitation while in prison was out of the control of the applicant and that he could do a course after he was released on parole. At [21] of its reasons for decision, the Tribunal summarised this evidence in terms that the applicant had said that he had not attended any rehabilitation or sex offender programs because prison authorities had decided that any such programs should be undertaken after his release on parole.

35    At [24] of its reasons for decision, the Tribunal made a finding that the applicant “has not completed a sexual offender program or any meaningful rehabilitation or treatment.” This was a simple finding of fact, based on the evidence of the applicant himself, and of his daughter on his behalf. The finding was made in the context of the Tribunal’s reasoning on the primary consideration of the protection of the Australian community. It followed the Tribunal’s findings on the seriousness of the applicant’s offences, the likelihood of a repetition of similar conduct in the absence of treatment, and the applicant’s failure to gain insight into the nature and consequences of his offending. The Tribunal then returned to the likelihood of the applicant reoffending, and mentioned general deterrence, before reaching its conclusion that the first primary consideration was strongly in favour of cancellation of the visa. The Tribunal returned briefly to the issue of rehabilitation in discussing the second primary consideration, the expectations of the Australian community. At [30], the Tribunal made a finding that the community would expect that the perpetrator of “such repugnant crimes, who is assessed as being at some risk of re-offending and who shows little evidence of stable and lasting rehabilitation, would have his or her visa cancelled in the absence of genuine remorse and medical or other reasonable explanation for the offending.” It was this reasoning that led to the Tribunal’s conclusion that the second primary consideration was strongly in favour of cancellation of the visa.

15    His Honour then noted that cl 2.10(c) of Direction No 21 identified, as among the matters to be evaluated in examining the first primary consideration, Protection of the Australian Community, “the extent of rehabilitation already achieved, the prospect of further rehabilitation, and the positive contribution to the community the person may reasonably be expected to make.” Because cl 2.10(c) directed attention in that way to the extent of rehabilitation already achieved and the prospect of further rehabilitation, his Honour considered that the appellant “had the means of knowing of the relevance of rehabilitation as an issue prior to the Tribunal hearing.” The learned primary Judge then noted that the Tribunal had referred to the order by the sentencing judge that the appellant undertake a sex offender’s course and in that context had been advised of the Parole Board’s decision that the appellant did not have to transfer to another prison to undertake such a course but could do so after release. His Honour then continued, at [36]:

The Tribunal then advised the applicant:

One of the issues that I have to consider is the protection of the Australian community when people are found guilty of serious criminal matters, and that includes a consideration of the likelihood of re-offending.

This statement gave the applicant the opportunity to convince the Tribunal, if he was able to do so, that he was keen to do a rehabilitation course and would certainly do one as soon as he possibly could. He did not take that opportunity. Instead, he gave evidence minimising his culpability, on which the Tribunal no doubt relied in finding that he had not gained insight into the nature and consequences of his offending.

16    In his Honour’s view, the Tribunal had indicated that the fact that the appellant had not done a rehabilitation course would be taken into account and “[I]t was up to the applicant, if he was able to do so, to minimise the impact of that fact. By her evidence in cross-examination, his daughter attempted to do just that.”

17    Nor did his Honour consider that the Tribunal had made any finding at all on whether the appellant would undertake a rehabilitation course in the future, observing, at [38]:

… If the applicant had given evidence of his intention to do so, the Tribunal might have been called upon to make such a finding. The applicant did not give this evidence. …

18    His Honour also identified an alternative reason for rejecting the appellant’s contention that the Tribunal had denied him procedural fairness. That was the time limit imposed by sub-ss 500 (6H), (6J) and (6L) of the Migration Act. In his Honour’s view the combined effect of those sub-sections in the events which had happened was that, as the Tribunal hearing had occurred on 18 May 2009, it could not have granted the appellant a substantial adjournment because of its statutory obligation to complete the hearing and make a decision by, at the latest, 8 June 2009. Accordingly, his Honour reasoned, at [39];

… The Tribunal could not have adjourned the hearing, and thereby delayed its decision, until the applicant’s release on parole, to see if he actually attended a rehabilitation course during the period of his release on parole. By that time, s 500(6L) of the Migration Act would have operated, and the applicant would have lost his case in any event.

19    In support of that analysis, his Honour referred to his own judgment as a member of a Full Court in Goldie v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 378, at [25]-[26];

25    The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the eighty-four day time limit for the whole process, laid down in subs (6L).

26    It is plain that the scheme is designed to disadvantage an applicant for review. Subsections (6H) and (6J) are not counterbalanced by any express obligation on the Minister to disclose the entire case against the applicant prior to the hearing. The purpose of subss (6H) and (6J) can only be to advantage the Minister at the hearing. Being forewarned as to the entirety of the case of the applicant for review, the Minister is better able to respond to that case. It may be that the Minister’s response will be to rely on documents that have been in the Minister’s possession or under the Minister’s control but have not been produced previously, because they were not in the possession or under the control of the delegate who made the original decision, or were not considered relevant to the decision (s 501G(2)), do not contain non-disclosable information (s 500(6F)) or have not been the subject of a notice pursuant to subs (6K). It may be that, after receiving a statement under subs (6H) or copy documents under subs (6J), the Minister acquires documents not previously in the Minister’s possession or under the Minister’s control, for the purpose of using them to answer the case of the applicant for review. The Minister may wish to obtain documents by compulsion with a view to tendering them at the hearing in answer to the case of the applicant for review. In doing so, the powers of the Tribunal found in s 40(1A) to (1E) of the AAT Act may be important. They are powers that enable the Tribunal to compel production of documents in the manner in which a court compels production of documents by the use of a subpoena.

20    A third reason advanced by the learned primary Judge for rejecting the appellant’s invocation of a denial of procedural fairness was that the appellant had not put before the Court any material as to what he would or might have said to the Tribunal if it had alerted him to the possibility of an adverse conclusion based on his failure to undertake a rehabilitation course.

21    Finally, on the issue of denial of procedural fairness, his Honour noted that the appellant’s failure to complete a sexual offender program or any meaningful rehabilitation or treatment was accorded only one sentence in three paragraphs which the Tribunal devoted in its reasons to the primary considerations ordained by Direction No 21. That feature of the Tribunal’s reasons enabled his Honour to observe, at [42];

… It was unlikely to have been the issue upon which the Tribunal’s view about the likelihood of repeat conduct turned. Similarly, when the Tribunal was considering the expectations of the Australian community, it made no more than a passing reference to the fact that the applicant showed little evidence of stable and lasting rehabilitation. It is by no means clear that, had the Tribunal embarked on speculation about whether the applicant would in fact have undergone a rehabilitation program after release, and had made a finding in the applicant’s favour, this would have changed the Tribunal’s view on either of the primary considerations that it found were strongly in favour of cancellation of the applicant’s visa.

22    At the end of his reasons the learned primary Judge examined the contention that the Tribunal had misdirected itself by holding that what it called “the secondary considerations” must be given lesser weight than the primary considerations identified in Direction No 21. As noted at [7] above, that contention was not pressed before this Full Court by Counsel for the appellant and it is unnecessary for us to have further regard to it.

Contentions of the appellant

23    Counsel for the appellant drew on the fact that Direction No 21 made it important for the Tribunal to decide whether, at the time of the hearing before the Tribunal, the appellant was willing, or prepared, to undergo a sexual offender program. The importance of such a decision was said to lie in the attention directed by Direction No 21 to the “likelihood that the conduct may be repeated” which bore, in turn, on the primary consideration of the “Protection of the Australian Public” and also on the “Expectations of the Australian Community.”

24    In support of the obligation imputed to the Tribunal to accord procedural fairness to the appellant, Counsel referred to this passage from Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, at 591-592 (“Alphaone”);

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. …

25    It was then submitted that, despite the significance which it attached to the absence of evidence of rehabilitation and to the appellant’s failure to undertake a sex offender program, the Tribunal overlooked the appellant’s explanation of the reason for that failure. In those circumstances, it was argued, the Tribunal was obliged to “deal with whether the Appellant remained prepared to participate in … a [rehabilitation] program at the time of the Tribunal’s decision in May 2009.”

26    In the same context, Counsel for the appellant pointed to the Tribunal’s adoption of the sentencing Judge’s observation that “without treatment, at least in the appropriate circumstances, [the appellant] would be likely to further offend against children.”

27    By proceeding from the adoption of that prediction to a finding that the appellant lacked insight into the nature and consequences of his offending and had “not completed a sexual offender program or any meaningful rehabilitation or treatment,” the Tribunal was said to have emphasised the importance to its decision of the completion of such a program or the willingness to undertake one. That importance extended, in Counsel’s submission, to the Tribunal’s findings of the expectations which the Australian community would have of somebody “who shows little evidence of stable and lasting rehabilitation”. Attention was also drawn to the way in which the Tribunal had taken into account, in evaluating the secondary considerations, the appellant’s good conduct in gaol. That was contrasted with the Tribunal’s intimation that “there is no evidence of rehabilitation or treatment”, which was seen as an issue going to the consideration (adverse to the appellant) of the likelihood of repeat conduct. Accordingly, Counsel for the appellant took issue with the observation of the primary Judge at [42] of his reasons which is reproduced at [21] above. Rather than it being “unlikely” that the failure to undertake a rehabilitation program was the issue on which the Tribunal’s assessment of the likelihood of repeat conduct turned, it was submitted that “the Tribunal clearly did draw adverse inferences about the Appellant’s attitude to his offending conduct based on his lack of participation in specific rehabilitation and treatment, without considering his attitude to undergoing such treatment as at the time of its decision”.

28    In relation to the view expressed by the learned primary Judge and noted at [15] above that the appellant had the means of knowing, before the Tribunal hearing, that rehabilitation would be a relevant issue, Counsel for the appellant pointed out that he was elderly and had no legal representation before the Tribunal. As well, he had given his evidence by video link between the Immigration Detention Centre and the Tribunal hearing. Had he been represented, it was suggested, his counsel could, in re-examination or oral submissions, have demonstrated the appellant’s continued willingness to undertake a rehabilitation course and the positive effects which that would have on his prospects of further rehabilitation. These features were said to affect the “content” of the Tribunal’s obligations to accord the appellant procedural fairness, in the sense that the existence of a “meaningful opportunity” to deal with an issue depends on the ability of the individual applicant to take advantage of the opportunity.

29    In a related way, Counsel referred to the transcript of the hearing before the Tribunal as demonstrating that, after it had ascertained that the appellant had not undertaken a sex offenders program in prison and the reason for that omission, the Tribunal “moved swiftly” to examine matters going to the protection of the Australian community against a serious offender and the likelihood of recidivism. There were no further questions about the issue of his not having done any [rehabilitation] program or its significance. Against this background, it was contended, it was unrealistic for the learned primary Judge to have found that the Tribunal had given the appellant the opportunity to convince it, “if he was able to do so, that he was keen to do a rehabilitation course and would certainly do one as soon as he possibly could [and] he did not take that opportunity.”

30    Attention was also drawn on behalf of the appellant to this passage from the transcript of the hearing before the Tribunal immediately before it adjourned to receive submissions:

31    It was argued on behalf of the appellant that, in the light of that exchange, the Tribunal should have inferred that the appellant was willing to undertake a sex offender’s course while on parole or, if it was unable to draw that inference, should have drawn the attention of the appellant and his daughter to the fact that it might regard an affirmative finding as to such willingness as decisive in resolving the application in the appellant’s favour. By declining to impose such an obligation on the Tribunal, it was argued, the primary Judge “was too demanding in his expectations of an applicant in the position of [the appellant].”

32    Counsel for the appellant sought to meet the learned primary Judge’s reliance on the time limits imposed by sub-ss 500 (6H), (6J) and (6L) of the Migration Act by referring to this passage from the reasons for judgment of Marshall J on an interlocutory application for an extension of time within which to appeal from the orders of the primary Judge; Milne v Minister for Immigration & Citizenship and Administrative Appeals Tribunal [2010] FCA 987, at [37];

It is arguable that the primary judge’s reliance on the combined effect of s 500 (6H), (6J) and (6L) of the Act in dismissing the application before him is also erroneous. Compliance with the putative obligation to provide procedural fairness to Mr Milne would not have required an adjournment by the Tribunal to obtain documents, but merely a question being put to Mr Milne by the Tribunal as to whether he was still prepared to do a rehabilitation course, and a taking into account by the Tribunal in its reasons for its decision of the response to that question. The question of the preparedness of Mr Milne to undertake a rehabilitation course, was, in any event, raised by documentary material before the Tribunal as at October 2005, …

33    As to whether the appellant should have adduced evidence before the primary Judge of what evidence he would have led, or what submission he would have made, had he been alerted to the critical nature of the issue of undertaking a rehabilitation program, Counsel for the appellant contended that the authorities do not require such evidence in every case of a denial of procedural fairness. Thus, in Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541 (“Dagli”), a Full Court of this Court observed, at [95] and [97];

95    … It is one thing to say that an applicant who claims to have been denied a “legitimate expectation”, or asserts that the Tribunal misled him, must prove that he suffered “practical injustice”. In such cases, the applicant is required to demonstrate that what occurred actually affected the outcome. It is altogether another thing to suggest that an applicant, whose case has been considered by a Tribunal that has before it material of an adverse kind, without informing the applicant of that fact, is not entitled to relief unless he can show that there was something useful that he could have said to rebut that material. That is simply not our understanding of the law.

…

97    We are not persuaded by the submission of counsel for the respondent that the appellant’s failure to file any affidavit, or adduce any evidence to show that there was something positive that he could have said in response to the adverse material, that might have persuaded the Minister not to cancel his visa, means that he did not suffer any “practical injustice”. Nor are we persuaded by the submission that, accordingly, notwithstanding the primary judge’s “provisional view”, the appellant was not denied natural justice. We consider, in accordance with Stead and Aala, that the appellant, having established a breach of the rules of natural justice, was entitled to succeed unless the primary judge was satisfied that the breach could have had no bearing on the outcome. In accordance with the observations of the High Court in Aala¸ that is not an easy task. If the adverse material might realistically have affected the outcome, the decision-maker will have failed to discharge the onus that rests upon him.

See also NARV v Minister for Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89 and Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069. In the latter case, Hely J observed, at [34];

If a breach of the rules of natural justice is established an applicant would ordinarily be entitled to relief unless the Court was satisfied that the breach could have had no bearing on the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Review Tribunal; Ex parte Aala (supra) at 116-117. Accordingly, I reject the submission put by the solicitor for the Minister that this application must fail because of the failure on the part of the applicant to demonstrate by evidence that some practical unfairness accrued to him as a result of the procedures which were adopted. If the applicant was not informed of the case which he had to meet, that is sufficient to establish ‘practical injustice’ without the applicant having to prove what he would have done had he been informed of that case. Re Minister for Immigration & Multicultural Affairs, Ex parte Lam (2003) 195 ALR 502 does not decide otherwise: NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52, at [31]; VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at [25]: Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497 at [61].

34    The Tribunal found, at [21] of its reasons, that the appellant “was prepared to participate in any sexual offender program but this had not occurred.” That finding left open the question of what effect such a program would have had on the likelihood of recidivism. It would have been open to the appellant, according to his Counsel, to have made submissions on the prospects of his future rehabilitation.

35    In paragraph [30] of the Tribunal’s reasons set out at [12] above, it was said, the Tribunal had negatived the desire which, at [21] of its reasons, it had imputed to the appellant to undergo a rehabilitation program. That was done, so the argument went, without asking the appellant about his current preparedness to undergo a rehabilitation program, or inviting him to make submissions about the likelihood of its minimising the risk to the Australian Community of his continued presence in this country. Rather, it was argued, Counsel for the Minister continued to invite the Tribunal to draw an inference, adverse to the appellant, on that issue and to make a finding that the appellant was still at risk of re-offending. The Tribunal was said to have responded affirmatively to that invitation when, at [23] of its reasons, after the passage reproduced at [9] above, it quoted this passage from the sentencing remarks in relation to the appellant;

… It [the sentencing court] has also formed the clear view, given the pattern of your past offending, that without treatment, at least in the appropriate circumstances, you would [be] likely to further offend against children.

36    That finding, it was argued, was based essentially on the appellant’s conceded failure, or inability, to undertake a sex offender rehabilitation program as was made clear by this passage from the Tribunal’s reasons at [24];

Mr Milne’s comments [in 2005 about the offences having been a one-off situation which did not cause any physical harm to any of his victims] demonstrate that he has not gained insight into the nature and consequences of his offending. He has not completed a sexual offender program or any meaningful rehabilitation or treatment.

37    In the light of those passages, it was submitted, the Tribunal was clearly influenced by what it regarded as the appellant’s failure to take advantage of an opportunity for rehabilitation and his lack of a genuine desire to reform, but those matters were never the subject of questioning or cross-examination.

38    Particular attention was drawn on behalf of the appellant to this exchange, recorded at p 5 of the transcript, between the Tribunal and the appellant;

39    Counsel for the appellant contended that, in the light of that exchange, the Tribunal should have afforded the appellant, as an unrepresented litigant, an opportunity to comment on his preparedness to undertake a sex offender’s course or otherwise rehabilitate himself. There was nothing, according to this argument, to lead the appellant to appreciate the significance which the Tribunal would ultimately attach to the opportunity to undertake a rehabilitation course and to the appellant’s failure to take advantage of it. It was common ground that the appellant, immediately after his release from prison, had been taken into immigration detention and, subject to that constraint, his ability thereafter to undertake a rehabilitation course was under the control of the Parole Board and not the prison authorities.

Submissions on behalf of the Minister

40    Counsel for the Minister identified three issues as requiring resolution on the appeal;

4.1    did the Tribunal make an adverse finding based on the appellant’s lack of completion of a rehabilitation program? If so, what was the nature of any such finding?

4.2    did the Tribunal afford the appellant with a reasonable opportunity to present evidence and make submissions about the issue of rehabilitation?

4.3    did the Tribunal draw to the appellant’s attention the issue of his willingness to undergo a sexual offender program? If not, was it obliged to do so?

41    In submitting that each of those issues should be resolved adversely to the appellant, Counsel contended that the Tribunal had found that the appellant had not completed a rehabilitation program but acknowledged that he had been willing to undertake one. Those findings reflected merely the factual circumstances of the appellant based on his own evidence. It was further submitted that the appellant had been given a reasonable opportunity to present evidence and make submissions about rehabilitation, including future rehabilitation. If the Tribunal had not expressly drawn the appellant’s attention to whether he was willing to undergo a rehabilitation program, it had not been obliged to do so.

42    The Minister also argued that the learned primary Judge had been correct in dismissing the application on the two separate grounds respectively noted at [18]-[19] and [20] of these reasons.

43    At the heart of the Minister’s resistance to the appeal was the contention that the issue of the appellant’s rehabilitation and his willingness to undergo a sex offender’s program had always been live before the Tribunal and evidence had been directed to it. Reference was made to a report dated 27 October 2005 which stated that “although there has been no program participation to date (due to EED of 2010) he is prepared to participate in any programs offered.”

44    Counsel for the Minister also rehearsed the appellant’s own evidence before the Tribunal to the effect that the Parole Board had considered it unnecessary for him to be transferred to Mangoneet Prison to undertake the sex offender’s course there but had suggested that he could be offered a short course in Carlton after his release on parole. In response to a question from the Tribunal as to why he had been unable to undertake such a course, the appellant had replied;

Because the parole board said I didn’t have to do it. They said I didn’t have to do Mangoneet Gaol to do the sex offender’s course. They sent a message to the prison, which I don’t have access, to of course. I asked if I could send that with my letter to you and they said it’s prison regulations they can’t release that.

Immediately after that response by the appellant, there occurred the exchange reproduced at [38] above.

45    Counsel for the Minister also drew attention in the same context to the statements made to the Tribunal by the appellant’s daughter which are noted at [30] of these reasons.

46    In the light of those features of the hearing before it, the passage from [21] of the Tribunal’s reasons, noted at [8] above, was said to be a correct recital of the evidence relevant to rehabilitation, as was the Tribunal’s conclusion at [24] of its reasons; see [10] above.

47    By implication, according to the Minister, the Tribunal acknowledged the only available piece of evidence tending to suggest that the appellant had favourable prospects of rehabilitation in the future when it noted, at [38] of its reasons as recorded at [13] above;

Although there is no evidence of rehabilitation or treatment, the Tribunal takes into account that his conduct in gaol has been good.

48    In light of all the indications in the Tribunal’s reasons to which he drew attention, Counsel for the Minister contended that it had not made any finding adverse to the appellant on his willingness to undergo a sex offender’s course in the future and it had understood that his omission to do so in the past had resulted from a decision taken by the prison authorities. Accordingly, it was submitted that the primary Judge had correctly observed that the Tribunal’s conclusion on this issue was “a simple finding of fact based on the evidence of the applicant himself and of his daughter on his behalf …”. Similarly, it was said on behalf of the Minister, there was no appealable error in his Honour’s observation that, in the absence of evidence from the appellant of his willingness to undergo a rehabilitation course in the future, there was no obligation on the Tribunal to make a finding about that issue or to draw it to the appellant’s attention so as to give him a further opportunity to address evidence to it.

49    Likewise, the Minister rejected the suggestion that the Tribunal had drawn on some finding about the appellant’s prospects of future rehabilitation as supporting its assessment, noted at [36] above, that “he has not gained insight into the nature and consequences of his offending.” Rather, that statement was characterised by the Minister as simply adding “another matter to the present position of the appellant”, i.e., that he had demonstrated a lack of insight but had not, as yet, undergone any rehabilitation or treatment. A similar method of reasoning was said to underlie the Tribunal’s conclusion at [25] of its reasons, noted at [11] above, that “Mr Milne remains at a considerable risk of re-offending.” That was claimed not to have been based on any adverse inference from the appellant’s failure to undergo rehabilitation or treatment but to have reflected the appellant’s lack of insight into his offending conduct which he had, in 2005, dismissively described as “a one-off situation.” In a general way, Counsel for the Minister repeated the contention that the Tribunal’s references to an absence of past rehabilitation or prospects for it in the future were merely descriptive of the appellant’s circumstances as revealed by the evidence at the time of the Tribunal hearing. They did not signify, it was argued, any adverse assessment of the appellant’s credibility.

50    Counsel for the Minister accepted that the Tribunal was under a duty to accord procedural fairness to the appellant which extended to affording him an opportunity to deal with matters adverse to his interests that the Tribunal proposed to take into account in conducting its review or, in other words, the critical issues or factors upon which the decision was likely to turn (Kioa v West (1985) 159 CLR 550, at 587). That involved bringing to the appellant’s attention “the gravamen or substance of the issue or factor” (see Pilbara Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539, at [70]). However, Counsel contended, the obligation just identified did not extend to drawing an applicant’s attention to information within his own knowledge or of which he should have been aware. Nor was the Tribunal required to expose its “mental processes or provisional views to comment before making the decision in question;” (Alphaone (supra), at 591-592). In the present case, the absence of past rehabilitation, the reasons for it and the appellant’s willingness to undertake a sex offender’s program in the future were clearly exposed as issues with which the appellant was given a full opportunity to deal. Nor were they issues on which the Tribunal placed “considerable significance” in reaching its conclusion.

51    In any event, the Minister pointed out, the notices of intention to cancel his visa issued to the appellant in October 2005 and February 2009 drew his attention to Direction No 21 as did the statement of facts and contentions dated 7 May 2009 filed by the Minister’s representative in the proceedings before the Tribunal. That included the contention that the appellant had “not demonstrated the necessary rehabilitation to reduce the risk of him re-offending” and a statement that there was no evidence before the Tribunal that the appellant had undertaken treatment.

52    In a related way it was argued that it was not for the Tribunal to make the appellant’s case for him and it could not have postponed its decision until further evidence about rehabilitation might have become available. The relevance of the issue of further rehabilitation was obvious and it was not incumbent on the Tribunal to remind the appellant of it. The inability of the Tribunal to defer its decision to enable evidence on that issue to be gathered and put before it flowed from sub-ss 500(6H) and (6J) of the Migration Act which require a written statement of the evidence to be given to the Minister at least two business days before the Tribunal hearing. As well, the Tribunal was constrained by sub-s 500(6L) of the Migration Act to make a decision within 84 days of the appellant’s having been notified of the delegate’s decision, i.e., by 8 June 2009. In all the circumstances, it was unclear, in any event, what further evidence the appellant could usefully have adduced on the issue of future rehabilitation.

Consideration

(a)    Was the appellant denied procedural fairness by the Tribunal?

53    The obligation on a tribunal or other decision-maker to expose to a party material which may be influential in the making of the ultimate decision is not unlimited. It does not extend to reminding the party of information which has been disclosed as part of the party’s own case or in prior, relevant, statements of the party such as a declaration in support of an application for a visa. Thus, in Alphaone, the Full Court in the passage quoted at [24] above stressed that the entitlement of a party to rebut or qualify material by further information or comment on it by way of submission exists in respect of “adverse material from other sources” (emphasis added). As we understand it, the words which we have emphasised refer to information from sources not under the control of the party claiming the entitlement. In the present case, information about the appellant’s willingness to undertake a sex offender’s program and the reasons why no such program had been available to him before the Tribunal hearing was peculiarly within the knowledge of the appellant.

54    Another aspect of the obligation to expose an issue to a party arises where the issue is not apparent from the nature of the decision entrusted to the decision-maker “or the terms of the statute under which it is made”; see the passage from Alphaone already cited. In our view, the reference in that passage to “the statute” under which the decision is made extends beyond the four corners of the governing Act to subordinate or delegated legislative instruments like Ministerial Direction No 21 which was applicable to the decision in the present case. It was apparent from the terms of Direction No 21 that the decision-maker was required to have regard, as a primary consideration, to “the likelihood that [the appellant’s] conduct may be repeated (including any risk of recidivism).” Moreover, it was indicated at cl 2.10 that a factor particularly relevant to assessing the likelihood of a repeated offence and the risk of recidivism was:

(c)    the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.

55    Accordingly, we consider that the issue of the appellant’s prospects of rehabilitation, including the contribution to those prospects which undertaking a sex offender’s program could make, was apparent from the terms of the instrument under which the Tribunal’s decision had to be made. In any event, the question of the undertaking of such a program was clearly raised with the appellant and his daughter. The Tribunal was therefore not obliged to identify that issue to the appellant.

56    A third feature which distinguishes this case from Alphaone is that there is no suggestion that an adverse decision on the issue discussed at [53] above had been arrived at by the Tribunal when it was conducting the hearing in relation to the appellant.

57    Nor was this a case like that considered by another Full Court in Dagli (supra) where four specific matters, adverse to the appellant, had been before the Minister and which the appellant had been denied an opportunity to address. In the present case, the Tribunal had before it no information on whether the appellant was willing to undertake a sex offender’s program other than the information that he had not undertaken such a program whilst in prison. As we have already noted, that fact and the reasons for it were apparent to, and fully discussed with, the appellant or his daughter. The appellant’s real complaint is that he was not invited to give additional evidence from which the Tribunal could have found, or inferred, that he continued to be willing to undertake a sex offender’s program.

(b)    Effect of appellant’s failure to indicate what submissions he would have made or evidence he would have adduced had he been alerted that willingness to undertake a sex offender’s program and prospects of rehabilitation would be critical to the Tribunal’s decision.

58    As we have pointed out at [57] above, this case is quite unlike Dagli quoted at [33] of these reasons. In that case, the primary Judge had formed a provisional view that the appellant had been denied natural justice by the Minister. The Full Court, accordingly, held that, because the primary Judge’s provisional view was favourable to the appellant, an inference was available that the appellant, had he been given notice of the adverse material subsequently relied on by the Minister, could have reinforced the primary Judge’s “provisional view”. In the present case, by contrast, the Tribunal expressed no provisional view on the appellant’s willingness to undertake a sex offender’s program or his prospects of rehabilitation if he were to do so.

59    We accept that, had he been asked whether, at the time of the hearing before the Tribunal, he was willing to undertake a sex offender’s program, the appellant would have responded affirmatively. However, that would not, of itself, have led the Tribunal to a different result because the Tribunal expressly found, at [21] of its reasons, that the appellant “was prepared to participate in any sexual offender program but this had not occurred.” That expression of the Tribunal’s finding suggests acceptance of the appellant’s continuing preparedness to undertake a program. However, it left open two related questions of whether any such program was available to the appellant outside prison and while he was on parole and what rehabilitating effects any available program might have. Although the appellant was represented before the learned primary Judge by Counsel (other than Counsel who appeared for him on the appeal), no evidence was led at first instance to suggest that the appellant might have persuaded the Tribunal to resolve those questions in his favour. In the circumstances, we regard it as unlikely that mere submissions to the Tribunal by the appellant would have had the requisite persuasive effect.

Conclusion

60    It follows, from our resolution of the two issues identified in our consideration of the appeal, that we have been unable to discern any appealable error in the reasons of the primary Judge. In the light of this conclusion it has been unnecessary for us to express a view on the alternative reason for refusing relief which his Honour founded on sub-ss 500(6H), (6J) and (6L) of the Migration Act; see [18]-[19] above. The appeal must be dismissed with costs.

Associate:

Dated:    23 March 2011.