FEDERAL COURT OF AUSTRALIA

Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of Marshall J of 29 November 2013 be set aside.

3.    In their place there be an order that the decision of the Administrative Appeals Tribunal of 19 April 2013 be quashed, and the matter be remitted to the Tribunal for hearing and determination according to law by another Tribunal member.

4.    The First Respondent pay the Appellant’s costs of the appeal and of the proceedings before Marshall J.

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

REASONS FOR JUDGMENT

1    The appellant has been living in Australia since 2003 on a Skilled – Designated Area Sponsored visa. He is 31 years old and a citizen of Fiji.

2    On 23 January 2013, a delegate of the Minister for Immigration and Citizenship, acting pursuant to s 501 of the Migration Act 1958 (Cth), cancelled his visa on the ground that he did not pass the character test specified in s 501(6). This was because the appellant has a “substantial criminal record” as defined in s 501(7), having been sentenced in the Supreme Court of Victoria on 29 January 2008 to imprisonment for 8 years for the offence of manslaughter by criminal negligence committed on 10 June 2006. The appellant was released on parole on 21 December 2011.

3    The victim was the appellant’s wife. In sentencing, Teague J said that the appellant committed the offence when he had an altercation with her and, on his account, pushed her and she fell and hit her head. His Honour said that the appellant did not call for help or medical assistance but instead dragged his wife’s unconscious or semi-conscious body across the road and left her lying out of sight near a waterway. His wife was later found dead submerged in water. His Honour pointed to evidence that this was not the first time that the appellant had assaulted his wife.

4    The circumstance that the appellant did not satisfy the character test enlivened the discretion of the Minister to cancel the visa and the Minister’s delegate exercised that discretion adversely to him.

5    The Administrative Appeals Tribunal (AAT) rejected an application, pursuant to s 500(1) of the Migration Act, for review of the cancellation decision: [2013] AATA 237. A Judge of this Court dismissed the appellant’s application under s 476A of the Migration Act for judicial review of the AAT decision: Jagroop v Minister for Immigration and Border Protection [2013] FCA 1287.

6    The appellant now appeals to the Full Court on two grounds. In broad terms the appellant contends that the AAT erred in:

(a)    refusing to reopen the hearing to hear oral evidence from a psychologist; and

(b)    relying on other materials in its decision without giving notice of those materials to the appellant.

He submits that the learned primary judge erred in holding that the interests of justice did not require the AAT to reopen the hearing, and in deciding that there was no breach of procedural fairness by the AAT.

7    We reject the first of these contentions, but uphold the second. It follows that the appeal should be allowed.

The AAT Decision

8    In conducting the review, the AAT was required by s 499 of the Migration Act to comply with a direction, known as Direction 55, issued by the Minister for Immigration and Citizenship on 25 July 2012. At one stage, the appellant had disputed that the AAT was bound to comply with this Direction, but that contention was not pursued before this Court.

9    The stated purpose of Direction 55 is to guide decision-makers when exercising the power, amongst other things, to cancel the visa of a person who does not pass the character test (cl 6.1(3)). The general principles contained in cl 6.3 indicate, amongst other things, that a non-citizen who has committed a serious crime should generally expect to be denied the privilege of staying in Australia, but that other circumstances, including the length of time during which the person has been in Australia and the consequences of visa cancellation for minors and other immediate family members, are also relevant factors.

10    Direction 55 identifies some matters as “primary considerations” for decision-makers and some as “other considerations”. The first of the primary considerations is the protection of the Australian community from criminal or other serious conduct (cl 9(1)(a)). Clause 9.1(2) provides:

Decision-makers should also give consideration to:

(a)    The nature and seriousness of the person’s conduct to date; and

(b)    The risk to the Australian community should the person commit further offences or engage in other serious conduct.

Clause 9.1.2 requires decision makers to have regard to:

The likelihood of the person engaging in further criminal or other serious conduct taking into account:

(i)    Information and evidence on the risk of the person re-offending; and

(ii)    Evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence …

Hence, an important consideration for the AAT was the prospect of the appellant engaging in further criminal or other serious conduct if he remains in Australia.

11    In considering that prospect, the AAT referred in some detail to the evidence concerning the appellant’s offence and sentence and his release on parole. It then assessed the risk that the appellant may commit further offences or engage in other serious conduct and concluded:

[98]    In conclusion, I find that the evidence discloses that the nature of harm to individuals or the Australian community should the applicant repeat his violent offending is so serious that even a low risk of that occurring in these circumstances would be unacceptable to the Australian community … [D]espite a number of persons qualified to make a psychological assessment of the applicant finding he had a low risk of recidivism, all of those reports omit the full nature and extent of the applicant’s prior violence history and the very disturbing extent of his propensity to be untruthful. Their value must be diminished as a consequence of those omissions. I find that there remains a real risk that the applicant will re-offend and, taking into account the seriousness of his previous offending, this factor must weigh heavily against allowing the applicant to retain his visa.

12    Having found that there was “a real risk” that the appellant will re-offend, the AAT went on to hold at [128] that the primary considerations weighing in favour of visa cancellation outweighed those favouring non-cancellation and, accordingly, affirmed the decision of the Minister’s delegate.

Ground 1: The AAT’s refusal to re-open the hearing

13    The appellant submitted that the primary judge should have found that he had been denied procedural fairness by the AAT’s refusal to re-open the hearing on Monday, 15 April 2013 in order to hear oral evidence from a psychologist. That request was made just before 5:00pm on Thursday, 11 April 2013, and after the AAT had reserved its decision.

14    In our opinion, this ground has no merit. In order to indicate why that is so, it is necessary to set out the background in which the AAT declined a resumption of the hearing.

15    The appellant’s application for review was filed in the AAT on 6 February 2013. On the same day, the AAT fixed Wednesday, 10 April 2013 as the date for the one day hearing of the application. It was necessary for the AAT to act with expedition because s 500(6L) of the Migration Act provides that, if it does not make a decision on an application of the present kind within 84 days, it will be taken to have affirmed the decision under review. In the present case, this meant that the AAT had to make its decision by 24 April 2013.

16    The appellant’s former solicitors arranged for him to be examined by a psychologist, Dr Cunningham, on 15 March 2013. They provided Dr Cunningham with the “G” documents, being those documents provided by the Minister pursuant to s 501G of the Migration Act. Dr Cunningham provided his report on 18 March 2013.

17    In making his assessment of the appellant, Dr Cunningham used a tool for the psychological appraisal of the appellant’s risk of future violent offending, described as “HCR-20”. He reported, on the basis of that assessment, that the appellant presented as a low risk of future violent offending.

18    On 22 March, the appellant’s solicitors sent a copy of Dr Cunningham’s report to Sparke Helmore, the solicitors for the Minister, foreshadowing that reliance would be placed on his opinion at the AAT hearing. On 2 April 2013, Sparke Helmore informed the appellant’s former solicitors that the Minister required Dr Cunningham for cross-examination. The response of the former solicitors on 3 April 2013 was as follows:

You are welcome to subpoena Dr Cunningham to be made available in person at the hearing, as we do not intend to do so.

Sparke Helmore responded on 5 April 2013 saying:

We reiterate our request that you arrange for the author of the psychological report to be made available to give oral evidence at the hearing in this matter. This is because we consider that there are matters concerning the preparation of the report and matters referred to in the report that require clarification before the Tribunal. We are content for the author to be made available to give evidence by telephone. Should the psychologist not be made available to give oral evidence, the Minister will make submissions at the hearing as to the weight that the Tribunal should afford the report.

This was a clear intimation that, if Dr Cunningham’s opinion was to be relied upon, then he was required for cross-examination, together with a warning as to the consequences for the appellant if that did not occur. Sparke Helmore also offered to facilitate the taking of evidence from Dr Cunningham by agreeing that it could occur by telephone.

19    There is no evidence that the former solicitors took any action at that time to procure Dr Cunningham’s attendance. It is likely that they did not do so.

20    In the meantime, in response to a subpoena, the Office of Public Prosecutions of Victoria (OPP) produced to the AAT documents which it held in relation to the appellant’s offence of manslaughter. The documents included the transcripts of proceedings in the Melbourne Magistrates Court on 17 April 2007 and in the Supreme Court of Victoria on 29 January 2008, a report of a psychologist, Dr Kennedy, dated 20 December 2007 and statements from two witnesses. The documents were provided to the appellant’s former solicitors on 4 April 2013.

21    The additional material showed a history of violent conduct by the appellant prior to the events of 10 June 2006. There is no evidence that this additional material was provided to Dr Cunningham. It is likely that it was not.

22    At the commencement of the hearing on 10 April 2013, the appellant’s then counsel informed the AAT that Dr Cunningham was unavailable that day but would be available on Monday, 22 April 2013. The AAT regarded that as unsatisfactory and said:

That’s not going to work. For a start, it’s far too close to the 84 day period in which to make a decision, … Not only that, our listings are made about 3 months in advance. It’s not that easy to find a suitable date. Tomorrow is suitable. Today is suitable. We can do him by telephone. You can make some enquiries.

The AAT also indicated a willingness to sit a little later in order to accommodate Dr Cunningham, if that was necessary.

23    Immediately after the luncheon adjournment on 10 April 2013, the then counsel for the appellant told the AAT that she had been unable to contact Dr Cunningham. The AAT Member confirmed his willingness to sit on the following day and to take Dr Cunningham’s evidence by telephone. At the end of the day’s hearing, the AAT adjourned the hearing to 11:00am on Thursday, 11 April 2013. It indicated that it would permit counsel as well as Dr Cunningham to appear by telephone, in order to accommodate their convenience.

24    Dr Cunningham did not respond to the messages from the appellant’s former solicitors until late on 10 April 2013, when he said in an e-mail:

Unfortunately, I have back to back clients out of Melbourne tomorrow so will not be available by telephone.

I would still be able to present evidence at a later date or alternatively write an addendum report addressing any issues when I am back in Melbourne tomorrow night.

25    The matter resumed at 11:46am on 11 April 2013. Both counsel appeared by telephone but the applicant’s former solicitor was present in the AAT hearing room. The appellant did not have Dr Cunningham available. The Senior Member said:

… I have been informed by my associate that Dr Cunningham will only attend or respond if written questions are put to him in advance.

The Senior Member went on to indicate firmly that the stance which he understood to have been adopted by Dr Cunningham to be inappropriate, and to confirm his willingness to take Dr Cunningham’s evidence by telephone and to limit that evidence to 10-15 minutes. He then adjourned the hearing to 2:15pm that same day, indicating to counsel that the hearing would be completed that afternoon, with or without Dr Cunningham.

26    Counsel for the appellant had still not been able to make any contact with Dr Cunningham by 2:15pm. The parties then completed their submissions, including submissions about the weight, if any, which could be given to Dr Cunningham’s opinion, and the AAT reserved its decision.

27    Later, just before 5:00pm, the former solicitor for the appellant sent an e-mail to the Senior Member’s associate asking if it was possible for Dr Cunningham to give oral evidence by telephone on Monday, 15 April 2013 at 11:00am.

28    The Senior Member declined that request and in his published reasons gave the following explanation:

[85]    Given the history of the attempts to have Dr Cunningham cross-examined regarding his report, it is my view that Dr Cunningham was given reasonable notice prior to the commencement of the hearing on 10 April 2013 that he was required to attend the Tribunal for cross-examination. It should have been apparent to the applicant’s solicitors that to allow Dr Cunningham’s opinion evidence to be admitted without the opportunity to cross-examine would be unfair to the respondent. While this Tribunal is not bound by the rules of evidence, it is required to accord procedural fairness to both parties. The Tribunal had afforded Dr Cunningham a reasonable opportunity to be cross-examined. Therefore, it was inappropriate to set aside yet another day for that purpose particularly having regard to the 84 day time limit imposed by section 500(6L) of the Migration Act which expires on 24 April 2013.

29    Ultimately, the AAT concluded that Dr Cunningham’s opinion was “worthless”.

30    In the hearing before the primary judge, it was common ground that the appellant’s complaint in this regard should be determined on the basis that he sought review of a discretionary decision and in accordance with the principles stated in House v The King (1936) 55 CLR 499. His Honour referred at [54] to Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 in which Kenny J at [24], after identifying four broad categories in which the re-opening of a hearing may be permitted, said:

The overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open.

(Citations omitted)

His Honour then concluded at [57]:

No basis has been established to interfere with the Tribunal’s discretionary decision, on a matter of practice and procedure, to refuse to re-open the matter.

31    In our respectful view this was not the correct approach as the learned primary judge was hearing an application for judicial review and not an appeal. The question for his determination was whether the AAT decision declining the re-opening of the hearing was, given the subsequent rejection of Dr Cunningham’s opinion, a denial of the procedural fairness required by the common law and by s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). We have approached the appeal to this Court on that basis.

32    Section 39(1) of the AAT Act provides:

(1)        Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party     to a proceeding before the Tribunal is given a reasonable opportunity to     present his or her case and, in particular, to inspect any documents to which     the Tribunal proposes to have regard in reaching a decision in the proceeding     and to make submissions in relation to those documents.

The obligation imposed by s 39(1) that the Tribunal give every party “a reasonable opportunity to present his or her case” has been described as a “statutory recognition of an obligation the common law would in any event imply”: Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J at 342; De Simone v Commissioner of Taxation [2009] FCAFC 181 at [15] per Sundberg, Stone and Edmonds JJ. In Sullivan at 343, Deane J said that:

…the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.

33    Accordingly, the AAT was obliged by both s 39(1) and the common law to ensure that the appellant was given “a reasonable opportunity” to present his case. A reasonable opportunity is not synonymous with “every possible opportunity” or even “every opportunity”. Whether or not an applicant has been provided with the requisite opportunity is to be determined objectively, having regard to all the relevant circumstances.

34    Counsel for the appellant argued four matters. First, that as Sparke Helmore had first indicated that Dr Cunningham was required for cross-examination on 2 April 2013, only 8 days before the scheduled hearing, the AAT had been wrong to conclude in [85] quoted above that Dr Cunningham had been given reasonable notice prior to the commencement of the hearing. Secondly, that the AAT’s understanding of Dr Cunningham’s attitude to giving evidence as evidenced by the Senior Member’s statement to the parties at 11:46am was incorrect because Dr Cunningham has said only that he was not available on 11 April 2013 and that he was willing to write an addendum report. Thirdly, that the AAT was mistaken in thinking that the Minister’s counsel had objected to a re-opening and, finally, that there had been sufficient time remaining before the expiry of the 84 day deadline in which the AAT could have heard oral evidence from Dr Cunningham.

35    As to the first, the Court was not provided with any evidence as to when Dr Cunningham was informed that the hearing would take place on 10 April 2013 or when he was first informed that he was required to give evidence in the hearing. What is known is that the AAT gave over two months’ notice of the hearing. On any view, this was reasonable notice. It was for the appellant and his advisors to have their evidence available at the hearing. Further, it is reasonable to suppose that Dr Cunningham, in accordance with the usual understanding of those retained to provide expert opinions in relation to legal proceedings, accepted his responsibility to be available to give evidence in those proceedings if necessary and that, within reason, he would have to meet the convenience of the AAT in that respect.

36    Any omission by the appellant’s former solicitors to inform Dr Cunningham in a timely way of the date of the AAT hearing, or by Dr Cunningham to make himself available in accordance with the usual understanding, did not detract from the opportunity which the AAT had provided to the appellant to present his case. A failure by an applicant to take advantage of the reasonable opportunities provided to present his or her case is not a contravention by the AAT of its obligations with respect to procedural fairness.

37    The primary judge found at [36] that the AAT’s understanding of Dr Cunningham’s attitude to attending to give evidence, as communicated to the parties on the morning of 11 April 2013, involved a misunderstanding. The basis upon which the primary judge reached that finding is not apparent, but there was no complaint in the appeal before us regarding any misunderstanding. However, the existence of the misunderstanding would not, for three reasons, provide a basis for a finding of denial of procedural fairness. First, the Senior Member indicated his understanding in open Court in the presence of counsel for both parties (each attending by telephone) and the appellant’s former solicitor (present in person). No one indicated to the Senior Member that his understanding of Dr Cunningham’s position was mistaken. Each had the opportunity to do so. Secondly, despite the misunderstanding, the AAT still allowed the appellant a further opportunity in which to obtain Dr Cunningham’s attendance by telephone, by adjourning the hearing to 2:15pm. Thirdly, there is no evidence in any event that the AAT’s misapprehension played any part in its decision not to allow a re-opening. The Senior Member does not mention this circumstance at all in the reasons which he gave at [85], quoted above, for his decision to refuse the re-opening.

38    In relation to the attitude of the Minister to the re-opening, it is true that the letter of Sparke Helmore of 12 April 2013 did not state in express terms that the Minister objected to the re-opening, saying that it was a matter for the AAT to determine. Nevertheless, Sparke Helmore described the request as “unusual” and drew the AAT’s attention to the correspondence between the parties before the hearing concerning Dr Cunningham’s attendance. As already seen, that correspondence included the refusal of the appellant’s then solicitor to arrange Dr Cunningham’s attendance and the suggestion that it was for the Minister to subpoena Dr Cunningham if he was required for cross-examination. In our opinion, it was open to the AAT to regard the Sparke Helmore letter of 12 April 2013 as expressing, in respectful and circumspect terms, objection to a re-opening.

39    Finally, we note our view that the circumstance that there were five days remaining before the expiry of the 84 day time limit does not take the matter any further. The question is whether the appellant was denied a reasonable opportunity to present his case and not whether he was denied a still further opportunity.

40    In summary, the AAT had given reasonable notice that the hearing would take place on 10 April 2013. When, on 10 April 2013, counsel indicated for the first time difficulty in securing Dr Cunningham’s attendance, the AAT sought to accommodate the position by arranging an unscheduled resumption of the hearing for the following day, as well as indicating its willingness to take Dr Cunningham’s evidence by telephone and, further, to impose a time limit on that evidence. When Dr Cunningham was not available on the morning of 11 April 2013, the AAT then adjourned the matter to the afternoon to give the appellant a still further opportunity to secure his attendance. In these circumstances, it cannot reasonably be held that there was any denial of procedural fairness or breach of s 39(1) of the AAT Act by the AAT’s refusal to allow a re-opening of the matter to accommodate Dr Cunningham’s convenience. We note that in other cases involving somewhat analogous circumstances, this Court has reached similar conclusions: Daw v Minister for Immigration and Citizenship [2012] FCAFC 123 at [7]-[8] per Flick, Nicholas and Robertson JJ; NZA v Minister for Immigration and Citizenship [2013] FCA 140 at [144] per Kenny J.

41    This ground of appeal fails.

Ground 2: The AAT’s use of other materials without notice to the appellant

42    As already seen, s 39(1) of the AAT Act requires the AAT to ensure that every party is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which it proposes to have regard in reaching a decision in the proceedings and to make submissions in relation to those documents.

43    The AAT referred in its reasons to an academic article by J R Nevotti PhD entitled “The Case Against the HCR-20” published in 2011 (the Nevotti article), to the text book “Australian Sentencing: Principles and Practice” by Edney and Bagaric (Cambridge University Press, 2007) (the Edney/Bagaric textbook), and to two decisions of the High Court: Power v The Queen (1974) 131 CLR 623 and Bugmy v The Queen (1990) 169 CLR 525 (the High Court decisions).

44    It was common ground that there had been no reference at all to this material in the AAT hearing. It is evident that the Senior Member referred to these materials on his own initiative after having reserved his decision.

45    The appellant submitted that the AAT had thereby denied him procedural fairness and had contravened s 39, with the effect that its decision was affected by jurisdictional error. However, during the course of the hearing, the appellant’s counsel withdrew this complaint insofar as it was based on the AAT’s reference to the High Court decisions.

46    The reasons of the primary judge appear to indicate that he would have upheld the appellant’s submission that the AAT had contravened s 39(1) of the AAT Act by its use of the Edney/Bagaric textbook, but not by its use of the Nevotti article. However, the primary judge did not express a final view about this, as he considered that subss 500(6H), (6J) and (6L) of the Migration Act had the effect that the omission of the AAT to give the appellant the opportunity to make submissions concerning the Edney/Bagaric textbook could not amount to a denial of procedural fairness.

47    It is convenient to consider, first, the claimed breach of s 39(1) and, separately, the effect of the provisions in the Migration Act upon which the Judge relied.

48    As noted earlier, Dr Cunningham’s assessment of the appellant included the use of the tool for psychological appraisal of the risk of future violent offending known as HCR-20. That appraisal, so Dr Cunningham reported, indicated a low risk of the appellant engaging in violent conduct in the future. Dr Cunningham reported on the HCR-20 test as follows:

Mr Jagroop was administered the HCR-20 to assess his risk of future violent offending. The HCR-20 is a widely used, normed and validated risk tool within forensic psychology. The HCR-20 measures risk along twenty indicators under three domains. Each of these indicators has been found to correlate with violent recidivism within forensic psychological research literature. The HCR-20 has three risk outcomes: High, Moderate and Low. Under the Historical Risk Factor Scale, Mr Jagroop met the criteria for Previous Violence, Young Age at First Violent Incident and Relationship Instability. On the Clinical Risk Factor Scale, Mr Jagroop did not meet any criteria. On the Risk Management Scale, Mr Jagroop met the criteria for Stress. On the basis of the current HCR-20 risk assessment, Mr Jagroop presents as a Low-Risk of future violent offending.

49    In assessing Dr Cunningham’s opinion, the AAT noted at [87] that in providing his report of 18 March 2013 Dr Cunningham had not had access to the material provided by the OPP (which was not provided to the appellant’s solicitors until 4 April 2013). The AAT continued:

… The significance of this is that although Dr Cunningham administered a test to the applicant known as the [HCR-20], he did not have significant information which contradicted what he had been told by the applicant about his violence history. That test is a checklist consisting of twenty items. There are ten historical or static unchanging items; five clinical or dynamic items that may change; and five risk management items that pertain to future circumstances (see: The Case Against The HCR-20, 2011, by Joseph R Nevotti, Ph. D). According to Dr Cunningham, the HCR-20 is used to assess risk of future violent offending. He reported that the applicant met the criteria under the historical indicators; did not meet any criteria under the clinical items; but met one of the criteria under the risk items. While it may be speculation on my part that the additional information to which Dr Cunningham was not privy would have altered the applicant’s score on the HCR-20, it is difficult to believe that it would not have had any effect. In fact, it is the uncertainty of the effect of that additional information which makes Dr Cunningham’s report, without the opportunity to cross-examine, worthless. In my view, I should not rely on it.

50    The AAT referred to the Nevotti article but the reasons, on their face, indicate only a limited use of it. That was to indicate the nature and number of the items making up the three “domains” to which Dr Cunningham had referred. It does not seem that the AAT used this part of the Nevotti article, at least expressly, as a basis for rejection of Dr Cunningham’s opinion. On the contrary, the concluding sentences in [87] indicate that it was the uncertainty as to whether Dr Cunningham’s opinion was reliable, given that it seemed that he had not had regard to all the available information regarding the appellant’s previous violent conduct, which the AAT regarded as significant.

51    The AAT first referred to the Edney/Bagaric textbook when addressing the appellant’s submission that, having served a lengthy prison sentence, he would be deterred from further criminal conduct. It noted that the appellant’s counsel had not produced any evidence to support that submission and proceeded to address it by reference to the Edney/Bagaric textbook. The AAT referred in [75] to the summary in Section 3.3.2 of the findings of academic research in Australia and elsewhere as to the effectiveness of personal deterrence. It quoted the authors’ conclusion at page 58 doubting the efficacy of harsh sanctions as a personal deterrent:

Accordingly, the weight of evidence supports the view that subjecting offenders to harsh punishment is unlikely to increase the prospect that they will become law abiding citizens in the future.

52    The AAT then referred to the review by Edney and Bagaric in Section 3.3.3 of the academic literature and empirical evidence relating to the effectiveness of general deterrence in sentencing. It quoted the statement of the authors in Section 3.3.3.3 that it is the prospective offender’s perception of the likelihood of being caught, rather than the penalty itself, which is the most important consideration:

As noted above, it has been contended that the most important consideration regarding deterrence is not the penalty, but rather the perceived likelihood of apprehension. The Canadian Sentencing Commission noted that ‘the old principle that it is more the certainty than the severity of punishment which is likely to produce a deterrent effect has not been invalidated by empirical research’. The connection between the certainty of punishment and crime rate has not been reproduced by numerous studies.

53    The AAT referred again to the Edney/Bagaric textbook in relation to its assessment of the appellant’s rehabilitation. The authors discussed this goal of criminal sentencing in Section 3.4. The AAT quoted the observation of the authors in section 3.4.1:

Despite the progressive and superficially appealing nature of rehabilitation as a sentencing objective its reception by the courts and legislators can at best be described as lukewarm.

Later, in relation to the effectiveness of rehabilitation, the AAT quoted the following passages from Section 3.4.2 of the Edney/Bagaric textbook:

The most damaging objection against rehabilitation as a suitable goal of sentencing has been that it does not work. Following extensive research conducted between 1960 and 1974, Martinson in a very influential paper concluded that empirical studies had not established that any rehabilitative programs had worked in reducing recidivism.

…

However, several years later Martinson softened his position, stating that some types of rehabilitation programs, particularly probation and parole, may be effective and that generally ‘no treatment … is inherently either substantially helpful or harmful. The critical factor seems to be the conditions under which the program is delivered’ …

…

That there is some level of success with rehabilitative techniques in relation to the least dysfunctional offenders is evidence not so much of a victory for the rehabilitative ideal as for the fact that some well adjusted people occasionally dabble in crime.

…

Overall, the jury is still out on the ability of criminal sanctions to reform offenders: ‘our understanding … of what works, with which offenders and under what conditions, in reducing offending … [is] still embryonic’. … Where an offender does not re-offend there are always at least two possible causes of this: genuine moral reform or the fear of again being subject to punishment. In most cases, there are also numerous other considerations which may be relevant, such as employment, education and family situation. This makes it very difficult to conduct or observe controlled experiments which provide pointed information regarding the effectiveness of rehabilitative sanctions.

(Emphasis added)

54    The reasons of the AAT do not make clear the precise use which it made of the Edney/Bagaric textbook. It did not make any express findings of fact in reliance on the quoted passages, nor did it expressly say that counsel’s submission was not accepted, or even that it was not supported by the academic literature.

55    However, the very fact that the AAT referred to the authors’ discussion of the efficacy of sanctions in personal and general deterrence, and of the efficacy of rehabilitation, as well as its selection of the quoted passages, seems to indicate that it regarded this material as, at the least, casting doubt on the claimed deterrent and rehabilitative effect of the period of imprisonment served by the appellant. In this way, the AAT used, indirectly, the conclusions in the criminological literature summarised by Edney and Bagaric in a way which was adverse to the appellant.

56    The AAT referred again to the Edney/Bagaric textbook when considering the significance of the appellant’s parole. The appellant’s counsel submitted that it was significant that the Adult Parole Board had been willing to release the appellant under parole supervision on the expiry of his non-parole period. Counsel also referred to the deterrent effect of the appellant being on parole, submitting that he was aware that if he failed to comply with his parole conditions or re-offended while on parole, he risked serving another period of incarceration.

57    The Edney/Bagaric textbook discussed the concept of parole in Section 12.4. The AAT quoted a passage from the introductory paragraph to this Section, namely:

[12.4]    … Essentially, the provision of a non-parole period or minimum term is designed to assist the offender’s reintegration into the community after imprisonment, as well as signifying the sentencing court’s view of the minimum period required to be served by the offender in all the circumstances of the case. Parole has been considered to be the minimum period for which the interests of justice require the offender to be imprisoned.

(Emphasis in the original)

58    In our opinion, the AAT’s reference to Section 12.4 is a matter of no consequence. The AAT seems to have used the quoted passage as a convenient and succinct summary of the nature and purpose of parole, rather than as a matter of significance to its decision.

59    The second limb of s 39(1) of the AAT Act required the AAT, if it proposed to have regard to the documents in reaching its decision, to give the parties a reasonable opportunity to inspect those documents and to make submissions in relation to them. The terms of s 39(1) were described by Sackville J in O’Sullivan v Repatriation Commission [2003] FCA 387; (2003) 74 ALD 407 at [56] as “unequivocal”. Sackville J considered that s 39(1) “reflects a clear statutory policy that a party should have an opportunity of inspecting documents that may play a part in the AAT reaching a decision and should also have the opportunity to make submissions on those documents”: at [45].

60    The application of s 39 was considered by the Full Court in Scorgie v Minister for Immigration and Citizenship [2008] FCAFC 101 in relation to a decision of the AAT affirming the refusal of a visa on character grounds. The appellant in that case complained that s 39(1) had been contravened because the AAT member had referred to his own earlier decisions containing some discussion of certain articles, books and research papers, but without having given her the opportunity to inspect those materials and to make submissions concerning them. The Full Court found, essentially for factual reasons, that s 39 had not been contravened. Marshall and Lander JJ considered that the AAT’s reasons did not indicate that the member had had regard to the texts and publications to which reference had been made in the Member’s earlier decisions: at [38]-[44]. In his separate reasons, Buchanan J at [72] considered that the AAT’s reasons did not identify, or incorporate by reference “documents to which the Tribunal proposes to have regard in making a decision”.

61    In the hearing at first instance, it was common ground between the parties that the Edney/Bagaric textbook, at the least, constituted a “document” for the purposes of s 39(1) of the AAT Act. We consider that view of the matter to be correct. Although this issue was not considered in Scorgie, it seems implicit in the respective reasons of the Court in that case that the materials in question were regarded as “documents” for the purposes of s 39(1). Further, in Toro Martinez v Minister for Immigration and Citizenship and Another [2009] FCA 528; (2009) 256 ALR 32, Rares J, although ultimately refusing relief on discretionary grounds, held that the AAT had contravened s 39(1) and the common law by referring to literature regarding the health system in Colombia when considering whether an applicant’s health needs could be addressed appropriately in that country.

62    In Scorgie, Marshall and Lander JJ observed at [34] that, in order for this obligation under s 39(1) to be attracted, two things must be apparent: the documents must be relevant, and the AAT must be proposing to have regard to the documents for the purpose of reaching a decision in the proceeding. We agree with the second of these conditions but would wish to reserve for further consideration the first if it is intended to encompass only documents which are, objectively considered, relevant to the AAT’s decision. It may be that the obligation in s 39(1) also applies in relation to documents which are perceived by the AAT, correctly or incorrectly, to be relevant. The opportunity of a party to make submissions in respect of documents wrongly perceived to be relevant may be just as important as the corresponding opportunity in respect of admittedly relevant documents, if only to point out their immateriality. Further, AAT members are unlikely to have regard to documents which they perceive as irrelevant.

63    In the present case, it can be concluded, for the reasons given above, that the AAT’s reference to the passages in the Edney/Bagaric textbook concerning parole was a matter of no consequence and did not play a part in the Senior Member’s decision. It is arguable that the particular passage in the Nevotti article to which the AAT referred did not play a part in its decision. However, in our view, it is unnecessary to reach a final conclusion about that.

64    That is because it is evident that the AAT did attach significance to the conclusions of Edney and Bagaric concerning the deterrent (both personal and general) and rehabilitative effect of the sentence of imprisonment imposed on the appellant. By its reference to the passages on those topics it can also be inferred that the AAT had regard, indirectly, to the empirical research to which Edney and Bagaric referred in explaining their opinions. The number and nature of the quoted passages from the Edney/Bagaric textbook make it appropriate to conclude that the AAT relied on this material in implicitly rejecting the submission of the appellant’s counsel as to the salutary effect of his having served a period of imprisonment. This was directly relevant to the AAT’s assessment of the risk of the appellant engaging in further violent conduct if permitted to remain in Australia.

65    Counsel for the Minister referred to the decision of the Full Court in Winch v Repatriation Commission [1999] FCA 408; (1999) 55 ALD 351 in which it was held that the AAT’s reference to three medical texts to which no reference had been made at the hearing was not a denial of procedural fairness. However, the decision of Winch turned on the facts of that case. The AAT had used the texts only to confirm a known scientific fact which had been the subject of evidence by the only medical witness able to express an opinion concerning it, and the issue to which it related had been clearly raised at the hearing. They are not the circumstances of this case.

66    Accordingly, subject to consideration of the effect of subss 500(6H), (6J) and (6L) of the Migration Act, we consider that the appellant has established that the AAT denied him procedural fairness.

The unconscious effect of the Nevotti article

67    The appellant’s counsel advanced an alternative submission in relation to the AAT’s reference to the Nevotti article. Counsel submitted that, although the AAT may have referred in its reasons to the Nevotti article in only a limited way, it was evident that it must itself have located the article and that it had had regard to the complete article. This meant that the AAT must have considered the article’s critique of HCR-20. The submission was that this was “credible, relevant and significant” information capable of creating a real risk of unconscious prejudice against acceptance of Dr Cunningham’s opinion, with the consequence that procedural fairness required the AAT to disclose it to the appellant.

68    Given our conclusion with respect to the Edney/Bagaric textbook, it is not necessary for present purposes to review the contents of the Nevotti article in detail. It is sufficient to record that its contents are reflected in the title “The Case Against the HCR-20”.

69    In our opinion, the Nevotti article answers the description of credible, relevant and significant information as discussed by Brennan J in Kioa v West (1985) 159 CLR 550 at 628-9 and by the Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [16]-[18] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. This means that it should have been disclosed to the appellant, and he given the opportunity to make submissions concerning it. The article was relevant (as the Minister conceded) as it went directly to the appropriateness of Dr Cunningham’s reliance on his HCR-20 assessment of the appellant; it was on its face apparently credible (as the Minister conceded); and it was capable of being significant to the AAT’s assessment of Dr Cunningham’s opinion.

70    It is immaterial that the AAT did not rely expressly on the article’s critique of the HCR-20 and instead rejected Dr Cunningham’s opinion for other reasons. As the decision in Applicant VEAL indicates, the question of whether information is credible, relevant and significant is to be determined before the decision maker reaches the final decision. The article was capable of having a subconscious effect on the Senior Member’s mind and, in particular, to prejudice him, albeit unconsciously, against acceptance of Dr Cunningham’s opinion.

71    In our opinion, this submission of the appellant should also be upheld.

Section 500(6H), (6J) and (6L) of the Migration Act

72    As previously noted, the primary judge considered that subss 500(6H), (6J) and (6L) had the effect that the AAT’s non-compliance with s 39(1) of the AAT Act did not give rise to a denial of procedural fairness. This was because subss (6H) and (6J) in particular precluded the AAT from having regard to any information presented orally, and to any document submitted by the appellant, unless the information and the document had been given to the Minister at least two business days before the AAT’s hearing. This time had already elapsed by the time the AAT came to consider the Nevotti article and the Edney/Bagaric textbook. Accordingly, the Judge considered that, even if the AAT had complied with s 39(1), it could not have had regard to any response of the appellant, with the consequence that the contravention had had no practical effect, and there had been no denial of procedural fairness.

73    The relevant provisions in s 500 are as follows:

(6H)     If:

(a)     an application is made to the Tribunal for a review of a decision under section 501; and

(b)     the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

(6J)     If:

(a)     an application is made to the Tribunal for a review of a decision under section 501; and

(b)     the decision relates to a person in the migration zone;

the Tribunal must not have regard to any document submitted in support of the person's case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.

...

(6L)     If:

(a)     an application is made to the Tribunal for a review of a decision under section 501 of this Act; and

(b)     the decision relates to a person in the migration zone; and

(c)     the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1).

74    As can be seen, subss (6H) and (6J) require that a written statement containing the information to be relied upon, and any supporting documents, be given to the Minister at least two business days “before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review”.

75    The evident purpose of these provisions is to give the Minister an appropriate opportunity to meet the case to be presented by an applicant at the hearing in the AAT, and to avoid the necessity for adjournments. This purpose was discussed by Gray J, with whom R D Nicholson and Stone JJ agreed, in Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378 at [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).

76    This view of the effect of subss (6H) and (6J) has been followed in subsequent cases: Milne v Minister for Immigration and Citizenship [2010] FCA 495 at [40] (Gray J); Mordechai v Minister for Immigration and Citizenship [2011] FCA 986, (2011) 196 FCR 509 at [47] (Bennett J); Uelese v Minister for Immigration and Citizenship [2013] FCAFC 86 at [29]-[32] (Jagot, Griffiths and Davies JJ) and Demillo v Minister for Immigration and Border Protection [2013] FCAFC 134; (2013) 139 ALD 29 at [18]-[19] (Greenwood, Buchanan and McKerracher JJ). In Uelese the Full Court said:

The effect of [subs (6H)] is clear. Where the pre-conditions to its engagement are satisfied, the provision operates to preclude the AAT from having regard to information presented orally in support of an appellant’s case where the information was not set out in a written statement given to the Minister at least 2 business days before the AAT holds a hearing.

77    This means that the entitlement of an applicant to present information or documents to the AAT in proceedings to which subss (6H) and (6J) apply crystallises on the commencement of the AAT’s hearing, with the effect that it may have regard only to that information or those documents provided to the Minister at least two business days before the hearing began. It has also been held that the resumption of an adjourned hearing is not a new hearing: Goldie at [31]; Mordechai at [47]. It is apparent that the primary judge relied on the line of authority commencing with Goldie in reaching his conclusion that any breach of s 39(1) in the present case did not give rise to a denial of procedural fairness.

78    Counsel for the appellant submitted that the conclusion that the resumption of an adjourned hearing was not “a hearing” for the purposes of subss (6H) and (6F) did not give proper effect to the use of the indefinite article “a” before the word “hearing” in those provisions. She contended that, when a hearing is adjourned, the purpose of the provisions would still be satisfied if the Minister had notice at least two business days before the hearing resumed. This was, in effect, a submission that the relevant question is not so much whether the resumption of an adjourned hearing is a new hearing, but whether it is a hearing of the kind contemplated by subss (6H) and (6J).

79    However, this question is foreclosed to this Court. The principle of comity indicates that this Court should follow the earlier decisions of the Full Court unless it is satisfied that those decisions are clearly wrong: Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41; (2009) 176 FCR 53 (Spender, Buchanan and Logan JJ) at [38]-[44]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 at [8] (Moore J) and [146] (Weinberg J). We are not so satisfied. In addition, any reconsideration of this aspect of the Goldie line of authority should be undertaken by a Court of five, and the appellant did not seek the constitution of such a Court. We observe however, similarly to Perry J in Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; (2014) 219 FCR 504 at [113], that we have some doubt about the correctness of this aspect of the decision in Goldie, or at least as to precisely when subss (6H) and (6J) are engaged.

80    Counsel for the Minister submitted that, in the light of Goldie and the authorities which have followed it, subss (6H) and (6J) should be regarded as applying to every item of information presented and to every document submitted by an applicant less than the applicable two business days before the hearing, irrespective of the circumstances in which the information or document is put before the AAT.

81    Counsel did not shrink from the logical consequences of acceptance of this submission. He acknowledged that it would mean that an applicant could not present information or a document in answer to a matter raised by the Minister or by the AAT for the first time during the hearing, even when the applicant could not reasonably have anticipated the matter being raised.

82    Counsel also accepted that acceptance of his submission may mean that the AAT could have no, or little, regard to the answers of an applicant, or an applicant’s witnesses, in cross-examination unless the requisite prior notice of those answers had been given. If this be correct, the position for which the Minister contended has the potential to render redundant, or at least substantially reduce the utility of, oral evidence on behalf of the applicant in a hearing in the AAT. The Minister’s submissions also involved the proposition that the AAT could not have regard to any submissions made by an applicant of which no prior notice had been given, even if only addressing matters raised for the first time by the Minister or by the AAT itself in the hearing.

83    Consequences of these kinds are so contrary to conventional notions of procedural fairness as to require considerable pause before a construction of the legislation which produces them is accepted.

84    In our view, subject to one possible exception, the decisions in Goldie and those which follow it do not foreclose the question of whether ss 500(6H) and (6J) preclude the AAT from having regard to information, documents and submissions of an applicant in response to matters raised by the Minister, or by the AAT itself, when the applicant could not reasonably have anticipated those matters. Goldie itself concerned a different question, namely, whether s 500(6K) had the effect that the Minister could not rely at the hearing in the AAT on documents which the Minister had not produced within the time specified at the AAT’s direction under subpar (d). That is to say, Goldie was concerned with the effect on the Minister’s ability to present information and documents at the AAT hearing, and not that of the applicant.

85    Mordechai, Demillo, and Paerau were each the relevantly straightforward case of an applicant wishing to lead evidence-in-chief of matters about which no prior notice had been given to the Minister. The judgment of Gray J in Milne was a first instance decision. In that case, the appellant submitted, amongst other things, that the AAT denied him procedural fairness by its omission to inform him that it proposed to make a finding adverse to him by reason of his not having undertaken a rehabilitation program. Gray J rejected this submission on a number of alternate grounds, one of which was that subss (6H) and (6J) would have precluded in any event the AAT having regard to any material which the appellant could have provided. It is also evident that Gray J considered that the issue was one which the applicant could reasonably have anticipated and therefore that he had had the opportunity to present evidence on the topic: at [36]. We note that, on appeal, the Full Court considered it unnecessary to express a view about the effect of s 500(6H), (6J) and (6L) of the Migration Act: Milne v Minister for Immigration and Citizenship [2011] FCAFC 41 at [60] per Ryan, Bennett and Edmonds JJ.

86    The possible exception which we mentioned is the decision of the Full Court in Uelese. In that case, the visa of the applicant had been cancelled on character grounds. In the proceedings in the AAT, he relied on the impact of his removal from Australia on his three children who were minors. In the cross-examination by the Minister of his de facto wife, it emerged that the applicant was also the father of another two children, who were also minors. The AAT declined to consider the interests of these two further children. The Full Court held that it had been right to do so, concluding that s 500(6H) precluded it from having regard to the evidence of the applicant’s de facto wife on this topic. On one view therefore, Uelese is a case concerning the use of information raised for the first time during the cross-examination of an applicant’s witness.

87    However, three matters about the decision in Uelese may be noted. First, the appellant had presented his case to the AAT on the basis that he had three children whose interests should be considered, and had not relied on his fatherhood of the two additional children at all. Not only this, but the very nature of the case was such that it was reasonable to expect the applicant to have raised his fatherhood of two further children in his own case if it was to be relied upon as part of that case. Secondly, the reasons of the Full Court do not suggest that, as a general principle, the AAT may not have regard to the answers of a witness in cross-examination, unless advance notice of the content of those answers had been given. Thirdly, Uelese was not a case of the Minister presenting evidence, or the AAT itself identifying material, of which the applicant had had no prior notice. Accordingly, we do not regard Uelese as precluding consideration by this Court of the issue raised by the appellant on the present appeal.

88    The appellant’s application to the AAT was brought under s 500(1) of the AAT Act. The subsequent provisions in s 500 regulate in a number of respects the conduct and determination of such applications.

89    Several aspects of the relationship between the provisions in s 500 of the Migration Act and the general provisions in the AAT Act concerning the conduct of appeals were discussed by Gray J in Goldie at [23] in a passage with which we respectfully agree. It is evident that the application of some provisions in the AAT Act are expressly excluded in the case of s 500(1) applications, for example, ss 23B, 28 and particular subsections of s 29. It is also possible, as Gray J noted, that the application of some of the AAT Act provisions may be impliedly excluded or modified by the scheme contemplated by s 500.

90    Nevertheless, it is apparent that a number of the AAT Act provisions are applicable to applications brought under s 500(1). Gray J gave the following examples: s 32 (a party to a proceeding may appear in person or may be represented by some other person), s 35 (the hearing is to be in public unless, on specified grounds, the AAT otherwise orders), s 40 (powers of the AAT, including taking evidence on oath or affirmation and adjourning a proceeding from time to time) and s 43 (the AAT may exercise all the powers and discretions conferred on the person who made the decision under review and is required to make a decision in writing affirming, varying or setting aside the decision under review and to give reasons either orally or in writing for its decision).

91    It can be concluded therefore that the provisions of the AAT Act and s 500 are, subject to some qualifications and exceptions, intended to operate in conjunction with one another. It can also be assumed, in accordance with ordinary canons of construction, that the respective provisions are intended to have a harmonious operation.

92    It is evident that both s 500 and the AAT Act contemplate participation by both the applicant and the Minister in the AAT hearing. Although proceedings before the AAT are inquisitorial, rather than adversarial, in their general character (Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-5 per Brennan J), the very nature of the proceedings is such that an applicant will present a “case” in support of his or her application for review of the decision in question. It is also implicit that the Minister may present a “case” in answer to that of the applicant, or a case by way of positive support for affirmation of the decision in question, or, as will commonly be the case, with elements of each. As already noted, one of the purposes of subss (6H) and (6J) is to facilitate the presentation of the Minister’s “case” by ensuring that the Minister is on notice of the information upon which the applicant intends to rely.

93    The context in which the AAT hearing may take place allows the possibility that the Minister may adduce evidence at the hearing with little or no prior notice to an applicant. That is because, having had forewarning of the case to be presented by the applicant, the Minister may have conducted investigations or made enquiries eliciting new evidence. That new evidence may be ascertained only within the two business days before the hearing during which the Minister has been in receipt of the applicant’s proposed material. The Minister may, for example, compel the production of documents by subpoena and wish to use those documents to support the decision under review.

94    Those circumstances indicate that close attention should be given to the scope of the prohibitions contained in subss (6H) and (6J). It is significant in our opinion that subss (6H) and (6J) are not expressed in unqualified terms, for example, by referring simply to “any” information presented, or to “any” document submitted, by an applicant. Instead, it is only that oral information and those documents presented “in support of the person’s case” which are the subject of the prohibition. In context, the term “in support of the person’s case” appears to be a qualification on the otherwise broad scope of the two prohibitions. It seems apt as a reference to the information and documents to be provided by applicants as part of their case-in-chief.

95    This view of subss (6H) and (6J) is consistent with the understanding to which we have referred, namely, that at a hearing in the AAT a person may wish to present information or documents in support of the person’s own “case” as well as information and documents in answer to the “case” of the Minister. It also serves to give effect to the principle that, in construing statutory provisions, courts should strive to give meaning to every word in the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ.

96    We conclude that the words “in support of the person’s case” in each of subss (6H) and (6J) are words of qualification. They indicate that the prohibition relates only to information and documents presented as part of an applicant’s case-in-chief to support his or her own case, and not to information or documents which an applicant may wish to present in answer to the case presented by the Minister and which, at the least, the applicant could not reasonably have anticipated.

97    On this understanding, subs (6H) would not preclude the AAT having regard to an applicant’s answers in cross-examination unless prior notice of the content of those answers had been given. Nor would subs (6H) preclude the AAT having regard to the answers of an applicant in re-examination. The subsections would have no application to information or documents presented by an applicant in answer to the Minister’s case, at least when the applicant could not reasonably have anticipated the evidence or issue raised by the Minister.

98    This understanding of the effect of subss (6H) and (6J) also informs the operation of their provisions in relation to matters raised for the first time by the AAT itself. In this respect, we refer first to s 33 of the AAT Act which concerns the conduct of proceedings in the AAT. Section 33(1) provides:

(1)    In a proceeding before the Tribunal:

(a)     the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)     the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c)     the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

99    As can be seen, subs (1)(a) makes the procedure of the AAT within its discretion but subject to the AAT Act itself and the regulations made under it and “to any other enactment”. Section 33(1)(a) can therefore be understood as making the general discretion of the AAT subject to specific provisions such as those contained in s 500 of the Migration Act.

100    However, s 33(1)(c) is significant for present purposes. It provides that the AAT is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. It has been held that s 33(1)(c) permits the AAT to have regard to matters within its own knowledge, and to draw on the experience of the member comprising the AAT in a given case. Thus, in Secretary of the Department of Veterans’ Affairs v Studdert [2001] FCA 1642, Moore J said at [26]:

… The Tribunal deals routinely with a range of matters in which common issues of fact of general application will arise. Members of the Tribunal will build up a body of knowledge about facts of general application in a class of matter that it can draw on in deciding a particular application in that class. Those facts may be known to a particular member of the Tribunal because that member has decided cases that are the same or similar and in which findings about those facts have been made. Equally those facts may be known to a particular member through decisions (containing findings of fact) of other members of the Tribunal. Plainly if a member of the Tribunal decides a matter by reference to facts known to the member in either of these ways, it should do so only if the parties have had an opportunity to comment on the facts as they might impact on the particular matter before the Tribunal. If there is a controversy about the facts in the sense that they are contentious, the Tribunal should also give the parties an opportunity to call or tender evidence about the contentious facts.

Thus, s 33(1)(c) contemplates that, subject to the requirements of procedural fairness, the AAT may inform itself by regard to materials to which reference was not made at the hearing. It was s 33(1)(c) which permitted the AAT in the present case to have regard to the Nevotti article and the Edney/Bagaric textbook. By definition a new matter which the AAT itself raises will not have been presented by an applicant as part of his or her case.

101    For the reasons given earlier, we would not regard an applicant’s response to a matter raised by the AAT of its own initiative as being presented “in support of the person’s case” and therefore a matter to which the AAT could not have regard. The response will be what it is, namely, an answer to the AAT’s question or invitation. Whether it be supportive of, adverse to, or relatively neutral in, the applicant’s case will be a matter of no consequence as it will not have been presented by the applicant as part of his or her case-in-chief. We add that a construction of subss (6H) and (6J) which would preclude or limit the AAT’s consideration of an applicant’s responses (or some of them) could stultify the discharge by the AAT of its function under s 500(1) and under the AAT Act.

102    There is a further reason why subss (6H) and (6J) do not have the effect that the AAT’s failure to alert the applicant to the Nevotti article and the Edney/Bagaric textbook was not a denial of procedural fairness. Neither in terms operates with respect to submissions. The distinction between evidence, on the one hand, and submissions concerning the effect of that evidence, on the other, is well recognised. Section 39(1) of the AAT Act draws that distinction, as do several provisions in the Migration Act, including s 54. Contrary to the Minister’s submission, it is not appropriate to regard the word “information” in subs (6H) as encompassing the submissions which an applicant may wish to make in respect of the evidence before the AAT. Further, the legislature should not reasonably be supposed to have intended that an applicant provide, at least two days in advance of a hearing, a written statement of all the submissions to be made in respect of evidence which, at that stage, the AAT has not received and about which an applicant may not yet be aware.

103    We note that in Williams v Minister for Immigration and Border Protection [2014] FCA 674 (to which counsel for the Minister quite fairly drew attention), Mortimer J at [90]-[91] expressed her agreement with a submission that subs (6H), (6J) and (6L) did not constrain an applicant’s ability to make submissions on the evidence before the Tribunal. We share that view. In this case, it was open to the appellant, at the least, to make submissions to the AAT regarding its proposed use of the Nevotti article and the Edney/Bagaric textbook and he was denied that opportunity.

Futility

104    Counsel for the Minister submitted that even if this Court concluded that the Judge should have found that the AAT had denied the appellant procedural fairness, it should nevertheless decline, in the exercise of the discretion, to grant the relief sought by the appellant. He referred to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [28] in which the plurality endorsed the view expressed in earlier cases that relief may be refused if, amongst other things, “no useful result could ensue”. Counsel submitted that the AAT’s findings for affirming the decision of the Minister’s delegate indicated that a remittal of the matter to the AAT would serve no useful purpose.

105    In the AAT, the appellant had submitted that his risk of re-offending was low. The AAT had reasoned that, even if the risk was low, his visa should nevertheless be cancelled having regard to the serious nature of the harm which would result if the risk was realised. Counsel referred in this respect to the AAT’s finding in [98], quoted above, that the nature of the harm which would result if the applicant repeated his violent offending was so serious that even a low risk of it occurring meant that allowing the appellant to remain in the Australian community was unacceptable.

106    In some cases, it is necessary for a person alleging a denial of procedural fairness to establish that the alleged denial led to a practical injustice. Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1 was such a case. The applicant in that case alleged that unfairness resulted from the decision-maker’s failure, without notice, to take a procedural step (contacting the carer of the applicant’s children) after the decision-maker had earlier indicated that contact with the carer would be made. However, the applicant had made no attempt to show that, in the light of the decision-maker’s representation, he had had a subjective expectation in consequence of which he did, or omitted to do, anything. Nor did he show that he had lost any opportunity to put any information or argument to the decision-maker or that he had otherwise suffered any detriment. In this circumstance, the Court held that there had been no denial of procedural fairness. Gleeson J said at [37]:

A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations … A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

(Citations omitted)

See also Hayne J at [112]-[113] and Callinan J at [149].

107    Lam establishes that in some circumstances it is necessary for persons claiming some forms of denial of procedural fairness to establish that the matter complained of has had a practical consequence. However, cases of the present kind in which a decision-maker has regard to material of an adverse kind, without informing the applicant of that material, are not usually considered to be in that category. The “practical injustice” in such cases is generally found in the very circumstance that the applicant has been denied the opportunity to address the adverse material.

108    Thus, in Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298; (2003) 133 FCR 541, the Full Court said:

[95]    … The principles enunciated in cases such as Stead and Aala are well established. Those principles are not to be taken as having been overruled by a side wind, still less by a judgment of the Court that was given in a particular, and quite specific context. 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 Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 and NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; (2014) 220 FCR 44 at [4]-[5] per Allsop CJ and Katzmann J.

109    In Tuncok, 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 … 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. Ex Parte Lam does not decide otherwise …

(Citation omitted)

110    The present case is not one in which it could be said that, even had the AAT allowed the appellant to inspect and to make submissions concerning the material, its decision would inevitably have been the same: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Re: Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [4], [80], [103] and [130]-[132]. It is sufficient to refer to two matters justifying that conclusion.

111    First, it is evident that reliance on the Edney/Bagaric textbook’s passages concerning deterrence and rehabilitation in the present case would require reasoning from the general to the particular. The dangers in this form of reasoning are well known. It cannot be concluded from evidence indicating that deterrence generally is ineffective that it is not effective in the case of some offenders or in respect of some offences. Hence regard must be had to the circumstances of the individual offender and the appellant was denied the opportunity of putting on evidence to establish that the generalised views of the authors were inapplicable to his particular position.

112    Secondly, there is evidence that rehabilitation programs are effective in some cases. The Tasmania Law Reform Institute Report on Sentencing in 2008 summarised the position at [2.1.40]:

Rehabilitation fell into disfavour because of lack of evidence of its effectiveness and also because of the possibility of imposing oppressive and disproportionate punishment in the name of treatment. However, it now appears that “Nothing works” is an overstatement. Criminologists no longer accept that treatment programs are ineffective in reducing crime. More sophisticated research techniques such as “Meta-analysis” of large numbers of small rehabilitative programs shows positive results can be obtained in favourable circumstances with selected offenders. As a consequence, the pessimism of the last decades of the 20th century has been replaced by a cautious optimism that some programs are effective in reducing the criminal behaviour of at least some offenders.

This suggests that, in the appellant’s case, it may have been possible for him to lead evidence about rehabilitative programs yet to be undertaken, as well as concerning any already undertaken.

113    The Minister referred to the futility of remitting the matter to the AAT, but in our opinion this submission should not be accepted. The elements of the decision of the AAT should not be compartmentalised as though each is a separate and distinct integer with no effect on another. Nor can it be concluded that a low prospect of re-offending coupled with serious consequences to the community in the event of re-offending means inevitably that the appellant’s visa will be cancelled. Direction 55, to which we made reference earlier in these reasons, requires an evaluative assessment by the AAT of all the pertinent factors. The primary considerations are important in that evaluation but are not decisive. While on the evidence at present the application to set aside the cancellation of the appellant’s visa may face serious obstacles, it is not possible for us to conclude that the AAT acting reasonably could not come to a conclusion favourable to the appellant.

Conclusion

114    For these reasons, we make the following orders:

1.    The appeal be allowed.

2.    The orders of Marshall J of 29 November 2013 be set aside.

3.    In their place there be an order that the decision of the Administrative Appeals Tribunal of 19 April 2013 be quashed and the matter be remitted to the Tribunal for hearing and determination according to law by another Tribunal member.

4.    The first respondent pay the appellant’s costs of the appeal and of the proceedings before Marshall J.

Associate:

Dated:    23 September 2014