FEDERAL COURT OF AUSTRALIA

Wozniak v Minister for Immigration and Border Protection [2017] FCAFC 148

ORDERS

THE COURT ORDERS THAT:

1.    Proposed ground 4 be stood over for mention on a date to be fixed, not sooner than seven days after the decision of the High Court of Australia in Falzon v Minister for Immigration and Border Protection [2017] HCATrans 84.

2.    The application for an extension of time in which to bring an appeal from the orders of Burley J dismissing the applicant’s application be dismissed.

3.    Leave to rely on proposed appeal grounds 1 and 2 not advanced before Burley J be refused.

4.    The applicant pay the costs of the respondents of and incidental to all matters other than proposed ground 4 of the draft notice to appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an application for leave to appeal out of time from orders made by a judge of this Court on 3 February 2017, by which his Honour dismissed an application for judicial review of a decision not to revoke the mandatory cancellation of the applicant’s Class BS Subclass 801 Partner (Permanent) visa (partner visa). The applicant’s mandatory visa cancellation on character grounds under s 501(3A) of the Migration Act 1958 (Cth) took place because he had a “substantial criminal record”, within the meaning of s 501(6)(a), as defined by s 501(7)(c), arising from a criminal conviction and sentence of 12 months (with a non-parole period of three months) for contravening an apprehended violence order. He also had two other convictions imposed at the same time which were part of his criminal history, but were not the basis upon which his visa was cancelled.

2    The cancellation decision was made by a delegate of the respondent, the Minister for Immigration and Border Protection, on 26 May 2015. The decision not to revoke the applicant’s partner visa cancellation was made by the Parliamentary Secretary to the Minister for Immigration and Border Protection on 18 March 2016, using the title “Assistant Minister for Immigration”: see Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68 at [3], [42]. As in Bochenski, nothing turns on the Parliamentary Secretary having used the title “Assistant Minister for Immigration” on the decision record or the reasons signed by him, instead of the formal title of his appointment for the office he held.

3    The present appeal proceedings were not commenced within the required 21 days: see r 36.03 of the Federal Court of Australia Rules 2011 (Cth). The applicant therefore required an extension of time in which to bring an appeal. The substance of only one of the proposed grounds of appeal was raised in the Court below, being proposed appeal ground 5 reproduced below. The applicant therefore also required leave to appeal upon a basis not relied upon before the primary judge in respect of proposed appeal grounds 1 and 2, also reproduced below. A further feature of these proceedings was an application to adduce fresh evidence in support of several of those grounds. The proposed evidence should be admitted for the limited purpose of determining this application. Apart from that, for the reasons that follow, with one exception, the application for an extension of time to appeal and for leave to advance new grounds on appeal must be dismissed.

4    The one exception to the refusal of an extension of time and leave to appeal arises from a ground in the same terms as in pending proceedings brought in the original jurisdiction of the High Court, challenging the constitutional validity of s 501(3A) of the Migration Act: Falzon v Minister for Immigration and Border Protection [2017] HCATrans 84 (proposed Falzon ground). That challenge is to be heard by a Full Court of the High Court on a date to be fixed.

5    If Mr Falzon’s challenge succeeds, the present applicant’s visa cancellation most likely will have been invalid, in which case that may need to be reflected in orders by this Court. If Mr Falzon’s challenge fails, then the applicant’s proposed ground of appeal most likely cannot succeed, in which case an extension of time and leave to appeal on that ground will necessarily be refused. Either way, orders on that remaining proposed ground of appeal are unlikely to require adjudication by this Court beyond consideration of the High Court’s decision. It is therefore appropriate to defer formal consideration of the proposed Falzon ground until at least seven days after the High Court delivers judgment.

Summary of relevant facts

6    The applicant, Mr Wozniak, is a citizen of the United States of America. He arrived in Australia on 24 November 2001, aged 44. On 8 August 2012, he was granted a partner visa, allowing him to remain indefinitely in Australia.

7    Not long after the grant of the partner visa, the applicant committed a number of criminal offences, the details of which are not material. On 6 September 2013, he was formally warned as to the potential cancellation of his visa by the respondent’s Department. However, he was instead given the benefit of a favourable exercise of discretion by a delegate of the Minister not to cancel his visa under s 501 of the Migration Act. On 3 February 2014, the applicant was sent a notice of the decision not to cancel his visa, which included a formal warning, noting that despite a prior warning he had committed further offences, and that if he was convicted again, that would most likely cause his visa to again be considered for cancellation.

8    On 6 March 2015, the applicant was convicted of a further criminal offence in the Local Court of New South Wales. The offence was contravening a prohibition or restriction in an apprehended domestic violence order. He was sentenced on that occasion to 12 months’ imprisonment. The applicant was also convicted and sentenced to 12 months’ imprisonment (with an order to be released after serving three months upon entering into a recognisance to be of good behaviour) for using a carriage service to menace, harass or offend, but it appears that this was not a conviction upon which the visa cancellation decision was based, according to a notice of visa cancellation letter dated 26 May 2015 sent by a delegate of the Minister. Nothing turns on whether or not that is correct. There was also a sentence for common assault, but the sentence of two months was below the 12-month threshold for character purposes under the mandatory visa cancellation provisions outlined below.

9    A delegate of the Minister was satisfied that the applicant did not pass the character test due to the operation of s 501(6)(a) of the Migration Act, on the basis that the applicant had a “substantial criminal record” as defined by s 501(7)(c) of the Migration Act. Accordingly, on 26 May 2015, the applicant’s partner visa was mandatorily cancelled under s 501(3A) of the Migration Act. That visa cancellation outcome was inevitable given the terms of ss 501(3A), 501(6)(a) and 501(7)(c), which provide that:

(1)    the Minister must cancel a visa if the Minister is satisfied that the person does not pass the “character test”, inter alia, on the basis of s 501(7)(c) and the person is serving a full-time sentence of imprisonment for an offence: s 501(3A)(a);

(2)    a person does not pass the character test if the person has a “substantial criminal record” as defined by s 501(7): s 501(6)(a); and

(3)    a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

10    The applicant became an unlawful non-citizen upon his partner visa being cancelled. At the time of the delegate’s cancellation decision, the applicant was serving a 12-month full-time sentence of imprisonment at Bathurst Correctional Centre. Following the delegate’s decision and the applicant’s release from prison on 5 June 2015, the applicant was taken into immigration detention.

11    The notice of visa cancellation letter from the delegate dated 26 May 2015, sent to the applicant while he was still in custody at Bathurst Correctional Centre:

(1)    set out the grounds for mandatory visa cancellation;

(2)    provided particulars of the relevant information pursuant to which the applicant’s visa was cancelled; and

(3)    enclosed information that was in the possession of the decision-maker at the time the decision was made.

The notice also informed the applicant of his right to seek the revocation of the delegate’s decision, and invited the applicant to make representations about possible revocation.

12    On 11 June 2015, the applicant signed a form requesting the revocation of the mandatory visa cancellation decision. The form was received by the Department on 19 June 2015. Immediately below the request signed by the applicant, the form contained the following:

AUTHORITY TO SEEK AND DISCLOSE INFORMATION

It may be necessary for the department to seek further information about you, or disclose information about you to a third party, to assist the Minister or his/her delegate in assessing your request for revocation and verifying any information you provide to the department. This information may be personal or sensitive information otherwise protected by privacy laws and may extend to prison and parole reports.

In order to assist the department in doing so, please indicate below whether you authorise the department to seek personal or sensitive information about you, or to use and disclose personal or sensitive information about you, where doing so is relevant to, and will assist with, the processing of your request for revocation.

[Box checked with a tick] Yes – I authorise the Department of Immigration and Border Protection to seek information about me and my situation. I understand that information may be disclosed to a third party.

The applicant also signed the authorisation part of the form.

13    On 28 August 2015, 2 September 2015, 7 September 2015 and 27 November 2015, further letters were sent to the applicant notifying him of information “which has been received and which may be taken into account when making the decision whether to revoke the decision to cancel your visa under s501CA of the Migration Act”. Each letter invited the applicant to comment on the information referred to. In the case of the 28 August 2015 letter, that referred to and enclosed a transcript of the Local Court proceedings of 6 March 2015. That transcript, in turn, contained references to a pre-sentence report that was before the sentencing magistrate.

14    On 21 March 2016, an officer of the Department informed the applicant by letter that the Parliamentary Secretary (referred to as the Assistant Minister) had decided, under s 501CA(4) of the Migration Act, not to revoke the original decision to cancel the applicant’s visa, and provided a statement of reasons. Those reasons relevantly stated the following:

71.    While there is no recent information before the department concerning any formal assessment of Mr WOZNIAK’s risk of re-offending, available evidence suggests that his behaviour in custody and Immigration Detention is disciplined. He has expressed remorse and genuine intentions to reform and has support from family and friends. However, I consider these factors have had limited value in the past. I also note Mr WOZNIAK was aware of the operation of s501 given his previous Department warning, and various dispositions have failed to deter him from further offending, which include sentences of imprisonment. Sentencing remarks indicate Mr WOZNIAK has an ongoing risk of re-offending given his lengthy criminal history and propensity to breach judicial orders. Taking into consideration all of the aforementioned factors, I find that Mr WOZNIAK poses a risk of re-offending and in doing so there is a risk if he was to re-offend in a similar manner, the potential harm to a member of the community would be significant particularly if directed at members of the community and, in particular, his former partner.

…

78    Further, I find that the Australian community could be exposed to great harm should Mr WOZNIAK reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr WOZNIAK.

79.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr WOZNIAK represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children as a primary consideration and other, [sic] family members, and any other considerations as described above. These include his lengthy residence, employment and familial ties to Australia, and the hardship Mr WOZNIAK, his family and social networks will endure in the even the original decision is not revoked.

15    The applicant subsequently pursued an application for review of the delegate’s decision before the Federal Court, alleging five grounds of error. On 3 February 2017, the primary judge dismissed the application on each ground. On 3 May 2017, the applicant filed an application for an extension of time in which to appeal from the primary judge’s orders dismissing his application for judicial review.

The proposed grounds of appeal

16    At the hearing of the appeal, counsel for the applicant pressed the following proposed grounds 1 (without particulars), 2 and 5 (in addition to the proposed Falzon ground as proposed ground 4, which does not need to be reproduced), with proposed ground 3 quite properly not pressed (emphasis in original):

Proposed grounds of appeal

1.    The Appellant was denied procedural fairness because he lost the opportunity of the Respondent considering the Pre-sentencing report dated 3 February 2015 (“Pre-sentencing report”) when determining a mandatory consideration being the risk to the Australian community and the risk of the applicant re-offending.

2.    Further, or in the alternative, the failure on the part of the Respondent to make an obvious inquiry about a critical fact, being the existence of the Pre-sentence report, the existence of which was easily ascertained, and which could have affected the outcome, was a failure on the part of the Respondent to exercise the jurisdiction under s501CA(4)(b) of the Migration Act 1958 (Cth) (the Act).

…

5.     The Respondent, at paragraph [39] of the Respondent’s Statement of Reasons, stated that he “took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens” and, by taking this into account, did not properly exercise the power in accordance with s 501CA(4) of the Act.

Proposed grounds 1 and 2: alleged denial of procedural fairness; alleged failure to make an obvious inquiry about a critical fact

17    It is convenient to deal with these two grounds at the same time, as they both turn on whether, by one means or another, the pre-sentence report (PSR) that was before the sentencing magistrate should have been before the Parliamentary Secretary. Neither of these two proposed grounds was raised before the primary judge.

18    In relation to proposed ground 1, counsel for the applicant submitted that a “practical injustice” had arisen as a result of the applicant having provided authority to the respondent to seek further information in relation to his circumstances and the respondent, in exercising this authority, having failed to obtain the PSR upon becoming aware of its existence from the transcript of the Local Court proceedings. Counsel for the applicant submitted that, in the absence of the applicant being informed that the respondent was not going to obtain the PSR, it was incumbent upon the respondent to obtain the PSR, and that not doing so amounted to an unfair change of procedure.

19    The unfairness was submitted to extend to the applicant’s lost opportunity to provide the PSR to the Minister himself, which counsel for the applicant asserted may have changed the outcome of the decision not to revoke his visa cancelation. Reference was made to the statement in the reasons as to a lack of “recent information before the department concerning any formal assessment of Mr Wozniak’s risk of re-offending”: see the first sentence of [71] of the reasons reproduced at [14] above. Counsel for the applicant submitted that the PSR addressed this issue as it was a recent formal assessment that went directly to the relevant consideration of the applicant’s risk of re-offending. It was submitted that the PSR contained information that was favourable to the applicant in a determination of his risk of re-offending, including that the applicant’s risk of re-offending was “medium/low”, that the alcohol issues that had previously contributed to his offending were no longer an issue, and that the applicant would benefit from a period of supervision by Community Corrections to address his substance misuse and relationship issues.

20    Considerable weight was ultimately placed in the applicant’s submissions on the relevance of the PSR, to the extent of suggesting that “no document was more critical to determining the issue of the applicant’s propensity for re-offending than the Pre-sentencing report”. As such, it was submitted in relation to proposed ground 1 that the applicant’s loss of opportunity to raise the PSR and the information contained therein raised a practical injustice that, in turn, caused a denial of procedural fairness.

21    In relation to proposed ground 2, the applicant relied on Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [24] to submit that there are limited circumstances in which a decision-maker is required to make further inquiries. Reliance was placed on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 111 ALD 15; 259 ALR 429 at [25] to suggest that a failure to make an obvious inquiry about a critical fact could, in some circumstances, constitute a constructive failure to review. It was submitted that, in failing to make the obvious inquiry of asking the applicant for the PSR or obtaining the PSR, the respondent failed to exercise jurisdiction, thereby giving rise to jurisdictional error.

22    In relation to proposed ground 1, the Minister submitted that the Court should not grant leave in respect of this ground as it relied on new evidence which could, and would, be the subject of challenge, citing Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73 at [20]. In relation to proposed ground 2, the Minister submitted that a decision-maker’s failure to make inquiries would only vitiate the decision in rare and strictly limited cases. It was submitted that this was not such a case, given the lack of importance attributed to the PSR on the face of the Local Court sentence hearing transcript, and the plain conclusions that could be drawn as to the applicant’s patterns of offending and risk of re-offending without the PSR. It was further submitted that the information contained in the PSR did not assist the applicant in any case, as the conclusion that he posed a “medium/low” risk of reoffending was in line with the findings in the reasons for not revoking the visa cancellation.

23    The Minister submitted that the reference to “recent” at [71] of the reasons (reproduced at [14] above) was in relation to any assessment after the applicant’s time in gaol, given that the sentence concludes with a reference to his conduct in gaol and in immigration detention, and having regard to the context provided by an earlier statement in the reasons that no current prison report was available. It was submitted that this was a reference to the absence of evidence that any rehabilitation in gaol may have lessened the applicant’s risk of offending. This probably goes further than the language used compels, even on a beneficial reading. However, a beneficial reading of the word “recent” as used supports the conclusion that it was not, in context, referring to an assessment made before the sentences were imposed over a year earlier, and therefore was at least referring to the post-sentence period. There was no issue of any report existing post-sentence that should have been before the Parliamentary Secretary but was not.

24    Both proposed grounds 1 and 2 cannot succeed for the following reasons.

25    The authorisation given by the applicant to the Department to seek and disclose information as part of his revocation application did not change the law in relation to the very limited obligation imposed on administrative decision-makers to make inquiries under the Migration Act: see SZIAI at [25]; and Ayoub at [24]. Nor did the terms or circumstances of the giving of the authorisation trigger such an obligation in this case.

26    The authorisation, in its terms and in context, did no more than facilitate the obtaining of documents in the course of assembling material for the consideration of the decision-maker, who in this case was ultimately the Parliamentary Secretary. It neither added to, nor detracted from, any obligation otherwise present arising from the undisputed obligation to afford procedural fairness. If the obligation otherwise arose, then the authorisation facilitated meeting it. However, no basis for any obligation to obtain the PSR was identified apart from the authorisation.

27    In any event, the Department, either relying upon the authorisation, or perhaps simply relying upon the public and open justice nature of the applicant’s sentence hearing on 6 March 2015, obtained the transcript of that hearing. On 28 August 2015, the Department wrote to the applicant, enclosing the transcript, along with another document, describing those documents as information which had been received and which may be taken into account when making the decision whether to revoke the decision to cancel his visa. The applicant was invited to comment on that information. No such comment was forthcoming.

28    If the applicant considered that the PSR was important to his application for revocation in some way, it was a matter for him to say so. He was constructively on notice that the Department either did not have a copy of the PSR, or at least did not intend to have regard to it, by the fact that the transcript was sent and the PSR was not, and by the fact that no comment was sought in relation to the PSR. Procedural fairness required no more. There was no practical injustice in nothing being done to obtain the PSR.

29    Further, it is difficult to see what possible difference the PSR could have made to the decision made by the Parliamentary Secretary. There was no practical injustice by reason of the following:

(1)    The part of the PSR relied upon by the applicant is under the community service order (CSO) assessment part of the community-based sentencing options. It was a part not relied upon by the magistrate because no CSO was imposed but rather a custodial sentence for all three offences. The magistrate took into account subjective matters “other than the presentence report”.

(2)    The conclusion reached in the reasons at [71] was that there was “a risk of re-offending” and at [78] that the Parliamentary Secretary “could not rule out the possibility of further offending”. A PSR which referred to a medium/low risk of reoffending confirms the existence of a risk, and that such a possibility cannot be ruled out. There was no practical injustice as the PSR was no more favourable than the conclusion reached, and in fact tended to confirm it.

(3)    In all the circumstances, obtaining the PSR and thereby its contents cannot be seen to constitute an “obvious inquiry”, nor an inquiry about an “obvious fact”.

30    Leave for an extension of time to appeal in relation to proposed grounds of appeal 1 and 2, and leave to advance those grounds by reason of them not being relied upon before the primary judge, must therefore be refused.

Proposed ground 5 – taking into consideration the “privilege” of remaining in Australia

31    This proposed ground of appeal for present purposes can be assumed to have been sufficiently raised before the primary judge because a point was taken about the use of the word “privilege” in the Parliamentary Secretary’s reasons and was rejected by his Honour. The grant of leave to advance this appeal ground out of time depends upon the proposition that the question before the Full Court in Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93 on the use of the same word in much the same circumstances was wrongly decided, and that this Court should await the outcome of an application to the High Court for special leave to appeal from that decision, and if successful, the outcome of that appeal. The Minister opposed that course being taken.

32    In support of this proposed ground, counsel for the applicant furnished post-appeal hearing submissions with leave. Those submissions referred to the two issues raised by proposed ground 5 that were noted by the Full Court in Tesic:

(1)    first, whether the use of the word “privilege” as used in the reasons at [39], even when read beneficially in accordance with Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, was a reference to the applicant’s legal status, and not merely the application of policy; and

(2)    second, if that meaning was accepted, whether that gives rise to jurisdictional error.

33    On the first issue, counsel for the applicant disputed the Full Court’s factual finding in Tesic that the Minister’s reference to “privilege” in his reasons was to be read as a consideration of government policy, rather than a reference to legal principles, on the basis of context provided by cl 6.3(1) of Direction No. 65. Counsel for the applicant submitted that:

(1)    The matters raised in Direction No. 65 cannot be considered as merely governmental policy as they are tied to the statutory authority given to the Minister under s 499 of the Migration Act to issue directions “if the directions are about (a) the performance of those functions or (b) the exercise of those powers”.

(2)    Direction No. 65 could not be seen as mere policy when compared to the Procedures Advice Manual 3 (PAM3), the purpose of which is expressly stated to be for policy guidance.

(3)    The Full Court in Tesic considered cl. 6.3(1) of Direction No. 65 in reaching its conclusion, but did not refer to cl. 13.1 of the same Direction, which, it was submitted, is “a direction about the exercise of s 501CA(4)(b)(ii) and was not, therefore, mere governmental policy”.

(4)    The word “privilege”, if read in the context of the whole sentence in the relevant passage of the Parliamentary Secretary’s reasons, is a reference to the status of the applicant as opposed to governmental policy.

34    On the second issue, counsel for the applicant submitted that, while the Full Court did not consider the need to address potential jurisdictional error in Tesic, in this case there was jurisdictional error on the basis that the Parliamentary Secretary took into account a prohibited factor, this being an incorrect statement as to the legal status of the applicant. It was submitted that this is a finding which is open to this Court, having regard to the scope, purpose and subject matter of s 501CA(4)(b)(ii). Counsel for the applicant referred to various authorities which were said to support the proposition that an incorrect statement as to legal status could amount to jurisdictional error. However, this is a hypothetical question in the absence of a finding that the use of the word “privilege” in such a way has taken place. Tesic stands squarely in the way of that conclusion being reached.

35    There was no need to seek any further written submissions from the Minister on this question. The arguments advanced on behalf of the applicant that took issue with the characterisation given to the use of the word “privilege” in Tesic do not constitute a sufficient reason to withhold judgment on this application. That is because it is well-established that intermediate appeal courts should not depart from judgments of other such courts in the absence of a compelling reason to do so, which is sometimes more bluntly expressed as needing to be convinced that the earlier decision is “plainly wrong”, be it as to a matter of statutory interpretation or non-statutory law, including seriously considered dicta: see Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135], [138], [178]; and CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 at [48]-[51], [63].

36    There is no compelling reason for declining to follow Tesic on the meaning to be given to the use of the word “privilege” in the reasons for deciding not to revoke a visa cancellation as being one reflecting the application of policy rather than a determination of legal status. The further submissions for the applicant go no further than demonstrating that a different conclusion could have been reached in Tesic, and do not demonstrate that the conclusion reached was not fairly and reasonably open to the Full Court. This does not meet the necessary threshold of providing a compelling reason not to follow Tesic, let alone require that a conclusion be reached that their Honours were plainly wrong. To the contrary, the conclusion reached in Tesic is compelling in the overall context in which the word “privilege” was used in both Tesic and in this case. Accordingly, this Court is bound to follow Tesic on the first issue and the second issue does not arise for determination.

37    The principle of following prior decisions of other intermediate appeal Courts in the absence of a compelling reason not to do so holds good even when an application for special leave to the High Court has been made or foreshadowed. That is because the mere fact that an application for special leave to appeal has been filed in Tesic, without more, is not a compelling reason to decline to follow, or to defer deciding, a point decided by a prior intermediate appeal court, in this case a Full Court of this Court.

38    Following Tesic, the proposed ground of appeal 5 cannot succeed. Accordingly, leave to appeal out of time on this ground must be refused.

Conclusion

39    The application for an extension of time and leave to appeal on grounds not advanced before the primary judge should be refused in respect of proposed grounds of appeal 1 and 2. An extension of time to appeal in respect of proposed ground 5 should be refused. The decision on the proposed Falzon ground should be deferred until at least seven days after the High Court’s decision in that case is published.

40    The applicant should pay the costs of the Minister except in relation to the proposed Falzon ground.

Associate:

Dated:    21 September 2017