FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Hunt [2019] FCAFC 58

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The notice of contention be dismissed.

3.    In lieu of the orders of Barker J made on 19 October 2018, the application for judicial review be dismissed.

4.    The respondent pay the appellant’s costs of this appeal and the costs of the hearing below, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

THE APPEAL

1    This appeal raises several questions as to the deportation of Australian non-citizens on character grounds. The notice of appeal raises the question of whether a particular aspect of sentencing was or should have been taken into account. The notice of contention raises a question of whether information obtained allegedly in contravention of statutory provisions (in this instance privacy legislation) may form the basis of a decision made about a non-citizen’s character.

2    The respondent, Mr Hunt, was convicted of two serious child sex offences 16 years ago. Although he was sentenced to imprisonment on each conviction, the sentence was wholly suspended for a period of two years. Mr Hunt was a minor aged 16 at the time. By reason of these and other offences the Minister for Home Affairs (as he now is) formed the view that Mr Hunt’s visa should be cancelled on character grounds.

3    The primary judge quashed the Minister’s decision after allowing an extension of time for the lodging of Mr Hunt’s application for judicial review. The Minister appeals. For the reasons which follow, the appeal must be allowed and the notice of contention dismissed.

BACKGROUND

4    Mr Hunt is a New Zealand national who arrived with his parents in 1993 as an 8 year old child. Since his arrival he has held a Class TY Special Category (Temporary) visa. His convictions in the District Court of Queensland of two counts of indecently dealing with a child under 12 years were in March 2003 (the March 2003 convictions). From that time, both as a minor and as an adult, Mr Hunt was convicted of relatively minor offices including public nuisance, fare evasion on public transport and failing to comply with reporting obligations under Queensland child protection laws in respect of the March 2003 convictions. He received fines for those offences.

5    In 2010, once again, Mr Hunt was convicted of failing to comply with child protection reporting obligations and sentenced to a term of imprisonment of four months. This term was also suspended for 18 months.

6    Between 2013 and 2016, Mr Hunt received fines for a number of driving offences.

7    In February 2017, nearly 14 years after the March 2003 convictions, the Department for Immigration and Border Protection (as the Department then was) sent Mr Hunt a “Notice of intention to consider cancellation of your visa under s 501(2) of the Migration Act 1958”. Unfortunately, no steps were taken by Mr Hunt to respond to the Notice despite the invitation to make representations as to why his visa should not be cancelled.

8    On 17 May 2017, in the absence of any response, the Department sent the Minister a submission inviting him to personally consider whether to cancel Mr Hunt’s visa on the basis that he did not pass the character test pursuant to s 501(6)(e) of the Migration Act 1958 (Cth). The Minister decided to exercise his discretion under s 501(2) of the Migration Act to cancel Mr Hunt’s visa on the basis that he reasonably suspected that Mr Hunt did not pass the character test and that Mr Hunt had not otherwise satisfied him that he did pass that character test.

9    Mr Hunt received from the Department a “Notice of Visa Cancellation” in July 2017 and was placed into immigration detention.

10    On 25 August 2017, without representation, he filed in this Court an application for an extension of time within which to apply for judicial review of the Minister’s decision to cancel his visa. He was 10 days out of time, which is not unusual considering that he was transferred from Yongah Hill Immigration Detention Centre in Northam, Western Australia, to Christmas Island Immigration Detention Centre. Representations were made on behalf of Mr Hunt with the assistance of a pro bono lawyer, Dr Cameron, who has generously assisted Mr Hunt since that time. The Court appreciates Dr Cameron’s professional service.

11    Mr Hunt’s application was amended. It stressed three major matters:

(1)    first, that the initial decision was based on evidence of his criminal record which had been unlawfully or improperly obtained on behalf of the Minister;

(2)    secondly, that the Minister’s refusal to revoke his decision gave no adequate reasons and failed to take into account relevant considerations and was irrational and unreasonable;

(3)    thirdly, in failing to take into the account the fact that the March 2003 convictions had been wholly suspended for two years, the Minister failed to take into account a relevant consideration, made an illogical, irrational and unreasonable decision and fell into jurisdictional error.

THE MINISTER’S REASONING

12    The Minister was of the view that the appellant’s criminal conduct (sexual offences involving children) was very serious. This is clear from the Minister’s reasons (at [10]-[17]):

10.    I am of the view that sexual offences involving children are very serious.

11.    On 20 March 2003, Mr HUNT was convicted in the District Court at Queensland of two counts of unlawfully and indecently dealing with a child under 12 and sentenced to nine months imprisonment on each count.

12.    The sentencing Judge described the offending as ‘two extremely serious offences’, both of which involved a ‘breach of trust’. The two counts of unlawfully and indecently dealing with a child under 12 relate to the same child, a distant relative, whom Mr HUNT was baby-sitting at the time of the offences.

13.    In both cases Mr HUNT digitally penetrated the victim’s vagina. The second count occurred whilst Mr HUNT and the victim were swimming. The Judge took into account a victim impact statement and found the offences ‘obviously would have had some impact’ on the child.

14.    Between 2007 and 2010 Mr HUNT was convicted of multiple counts of fail to comply with reporting under the Child Protection (Offender Reporting) Act 2004 (Qld). He received fines and, in 2009, a term of imprisonment of four months, suspended for 18 months.

15.    Mr HUNT also has convictions between 2003 and 2016 for fare evasion, commit public nuisance and unauthorised driving and speeding offences. He received fines for these offences.

16.    I find the sentence Mr HUNT received for unlawfully and indecently dealing with a child under 12 is a further indication of the seriousness of the offending. Depositions involving sentencing the offender to a term of imprisonment are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious.

17.    I find that Mr HUNT’s conviction for two counts of unlawfully and indecently dealing with a child under 12 is very serious.

13    As will become important to the grounds of appeal and the argument, the Minister did not, in this passage of his reasons, note that the District Court wholly suspended the sentence of imprisonment for nine months for a period of two years.

14    The Minister referred to Mr Hunt’s convictions between 2007 and 2010 for failing to comply with reporting obligations under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). However, this passage of the reasons noted that Mr Hunt “received fines and, in 2009, a term of imprisonment of four months, suspended for 18 months”. The suspended nature of the sentence was therefore expressly noted in relation to this sentence which concerned the reporting failure conviction. The distinction in the two modes of recording was later relied upon (in part) to conclude that the suspension of the earlier sentence was apparently not taken into account.

15    The Minister addressed the risk Mr Hunt posed to the Australian community, noting that he was 16 years of age at the time of committing the offences which resulted in the March 2003 convictions. The Minister stated that he accepted that Mr Hunt’s youth may have played a part in this offending. He acknowledged that Mr Hunt pleaded guilty to these offences, sparing the complainant from having to give evidence. The Minister said that this showed Mr Hunt had some level of remorse and insight into his offending which indicated a “lower likelihood of re-offending”.

16    However, the Minister also referred to Mr Hunt’s failure to comply with his reporting obligations on multiple occasions, including as recently as in 2010. He found this showed “not only a further disregard for Australian laws designed to protect the community, but also a lack of continued insight into his sexual offending”, indicating “some risk of him re-offending”. The Minister said that Mr Hunt’s multiple appearances before courts as an adult “showed some propensity to continue to disregard Australian laws”.

17    The Minister noted Mr Hunt did not make any representations and, therefore, there was no information before him regarding rehabilitative efforts made in relation to Mr Hunt’s sexual offences. The Minister found that, despite 15 years having passed since the sexual offences, there was “a likelihood, albeit low” that he would re-offend in a similar way. To this end, the Minister considered that if Mr Hunt did engage in further criminal conduct of a similar nature, this could result in psychological or physical harm to the Australian community and as such “even the smallest risk of re-offending [was] a sufficient risk”.

18    The Minister also had regard to the best interests of minor children, stating that there was no information before him regarding any minor children with whom Mr Hunt has a parental relationship, but he accepted that Mr Hunt may have children or ongoing relationships with minor children such as step-children. He further accepted that any such children would suffer emotional, and potentially financial, hardship should Mr Hunt’s visa be cancelled, meaning it was in the best interests of said children not to cancel his visa.

19    The Minister then considered the expectations of the Australian community. The Minister noted that Mr Hunt had breached the trust of the Australian community based on his March 2003 convictions and concluded that the Australian community would expect that Mr Hunt should not hold a visa.

20    In regard to Mr Hunt’s ties to Australia, the Minister acknowledged that Mr Hunt had lived in Australia for most of his life, from a young age, meaning that the community may have a higher tolerance of his criminal conduct. Again, the Minister stated that Mr Hunt had not provided information in regard to his ties to Australia, but accepted that he would have made social and work contacts and it was likely he had family residing in Australia who would suffer emotional hardship in the event Mr Hunt’s visa was cancelled.

21    Finally, the Minister considered the extent of the impediments Mr Hunt would face if removed. The Minister said that Mr Hunt was unlikely to experience substantial language or cultural barriers if he returned to New Zealand. However, it was accepted he would experience some hardship if he did not have support networks to help establish himself. The Minister considered this impact would lessen over time as Mr Hunt would have access to comparable welfare and support services in New Zealand as which exist in Australia.

22    In reaching his conclusion to exercise his discretion to cancel Mr Hunt’s visa, the Minister stated (at [40]):

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

REASONING OF THE PRIMARY JUDGE

23    The primary judge explained the reasons for Mr Hunt’s delay in lodging his application for judicial review. It was also noted that Mr Hunt had set out in documentation a range of information going to the merits of the Minister’s initial decision. The primary judge recorded that this was material Mr Hunt should have given to the Minister when initially invited to respond to the Notice. Examples included the family violence between his mother and stepfather and his “rough upbringing”. He deposed to having been sent across the country to live with his father when he was 14 years old, following some time in foster care. He became homeless after a breakdown in the relationship with his father, until staying briefly with his aunt and uncle at the age of 15 and 16 years old, during which time the offences the subject of the March 2003 convictions occurred. Mr Hunt expressed extreme remorse for those actions.

24    His Honour recorded the further detail of Mr Hunt’s background at considerable length and, when it came before the Court for case management in light of the circumstances described, the matter was referred to mediation before a Registrar of the Court. The mediation unfortunately failed to resolve the matter, the Minister declining to reconsider his initial decision.

25    Following the failed mediation, Mr Hunt filed an amended application based on the amended grounds referred to above. He also filed a further affidavit explaining that at no time had he authorised any person or authority to access his criminal record in either Queensland or Western Australia or any records that may have been held by the Australian Federal Police (AFP). He had not authorised any person or authority to access his court file from the March 2003 convictions in relation to his actions as a minor. He deposed that he had always assumed that his privacy was ensured by data protection laws applying to Australian States and the Commonwealth.

26    The Minister opposed Mr Hunt’s application for an extension of time only on the basis that the merits of the substantive application did not warrant an extension of time. His Honour allowed the extension of time after a consideration of the substantive merits.

Ground 1 – did the Minister’s decision lack jurisdiction on the basis that he relied on evidence of Mr Hunt’s criminal record obtained without consent?

27    In dealing with this, the primary judge described the particular issue as whether there had been a breach of the Australian Privacy Principles (APP) made under the Privacy Act 1988 (Cth) (the Commonwealth Privacy Act), having regard to:

    the manner in which the Department requested and obtained a copy of Mr Hunt’s criminal record from the Queensland Police Service on 14 and 15 September 2016; and

    the Department’s request to the AFP on 22 September 2016 for a National Police Check in relation to Mr Hunt and the AFP’s provision of a National Police Certificate to the Department in response to that request.

28    His Honour said a further issue also appeared to arise, namely, if there was a breach of the APP by an officer of the Department in relation to either of the requests for information as to Mr Hunt’s criminal record, whether any such breach was relevant to the validity of the Minister’s decision to cancel Mr Hunt’s visa.

29    The primary judge recorded the submissions of both the Minister and Mr Hunt in relation to the “first breach issue” (as his Honour described it) before commencing consideration of this privacy ground.

30    His Honour noted that the Commonwealth Privacy Act is designed to effect the regulation of privacy and the handling of personal information before detailing the objects of the Commonwealth Privacy Act as set out in s 2A.

31    His Honour noted that Div 2 of Pt IIIB deals with codes of practice about information privacy, called APP codes.

32    The act of “interference with the privacy of an individual” is mentioned by the Commonwealth Privacy Act.

33    The breach of a registered APP code is also mentioned by the Commonwealth Privacy Act. By s 6B(1), an act or practice breaches a registered APP code if, and only if, it is contrary to, or inconsistent with, the code.

34    An “organisation” to which the Commonwealth Privacy Act may apply, by s 6C(1), does not pick up a State or Territory authority or a prescribed instrumentality of a State or Territory. By s 6C(3), a “State or Territory authority” is defined to include a Minister, a Department of State and a body established or appointed for a public purpose or under a law of a State, with some exceptions.

35    His Honour noted that s 26A provides that an APP entity must not do an act, or engage in a practice, that breaches a registered APP code that binds the entity.

36    Section 26C states what an APP code is.

37    However, the primary judge noted that the Commonwealth Privacy Act allows for special rules in relation to an “enforcement body”, which is defined by para (ca) of s 6, to include the Department. An “enforcement body” also means, by para (m) of s 6, “another prescribed authority or body that is established under a law of a State or Territory to conduct criminal investigations or inquiries”. An “entity” includes “an agency” or “an organisation”. An “agency” includes “a Department”.

38    In this case, the Minister accepted before the primary judge that the Department was affected by the Commonwealth Privacy Act and the APP. The Minister submitted the Department is an “enforcement body” pursuant to the s 6 definition. That, his Honour noted, is demonstrably correct.

39    The primary judge referred to APP 3 which deals with the collection of solicited personal information. APP 3.1 provides that if an APP entity is an agency (which the Department here is), it must not collect personal information (other than sensitive information) unless the information is reasonably necessary for, or directly related to, one or more of the entity’s functions or activities.

40    In this case, the particular information that the Department collected (the criminal record of Mr Hunt) is “sensitive information”. His Honour reasoned that is because para (a)(ix) of s 6 defines that term to include an individual’s criminal record.

41    In those circumstances, the primary judge reasoned that the collection of the criminal record of Mr Hunt by a member of the Department for use by and within the Department, including by the Minister, for the purpose of making a decision such as the impugned decision, was not the subject of the prohibition on the collection of personal information that would otherwise apply pursuant to APP 3.1.

42    APP 3.4 provides that the subclause applies in relation to sensitive information about an individual if, amongst other things:

(d)    the APP entity is an enforcement body and the entity reasonably believes that:

(i)    if the entity is the Immigration Department, the collection of the information is reasonably necessary for, or directly related to, one or more enforcement activities conducted by, or on behalf of, the entity; …

43    His Honour said the term “enforcement related activity”, which is also defined by s 6 of the Commonwealth Privacy Act, plainly covers the exercise of the power by the Minister to cancel a person’s visa in circumstances such as the present. The term is relevantly defined to include:

(f)    the prevention, detection, investigation or remedy into misconduct of a serious nature, or other conduct prescribed by the regulations; …

44    The primary judge rejected Mr Hunt’s submission that the Minister or the Department could only obtain information where there was demonstrated “misconduct”. In context, the power to undertake activity in relation to the exercise of powers under the Migration Act to cancel a visa, the primary judge thought to be well within the activity described in para (f).

45    His Honour went on to explain that Mr Hunt’s complaint was not so much with this analysis of the operation of the Commonwealth Privacy Act and the application of the APP to the Department’s activities in requesting his criminal record, but with the circumstances in which the Department initially became aware of Mr Hunt and his criminal record and also with the conduct of a State of Queensland official in imparting knowledge about Mr Hunt to a member of the Department and providing a copy of the record to that member.

46    The primary judge dealt with this contention as follows (at [95]-[99]):

95    The broad submission made is that, if it can be demonstrated that the imparting of that knowledge and the provision of the criminal record by a State official to the Department was in breach of Queensland privacy law, then the criminal record, in the hands of the Department, constituted the “fruit of the poisonous tree” such that the Court should find that the Minister was not entitled to regard the criminal record ultimately obtained from the AFP.

96    The evidence or other information surrounding the provision of information concerning [Mr Hunt’s] conviction by a person employed by the State of Queensland to an official of the Commonwealth is, generally, rather hazy. It is not entirely clear how an officer of the State of Queensland came to inform an officer of the Department about [Mr Hunt’s] relevant conviction. It seems, however, that armed with some awareness of a conviction further inquiries were made by the Commonwealth officer of the Department.

97    In my view, on the facts as they have been set out above, no officer of the Department acted contrary to the APP. The record of [Mr Hunt] was, under the Commonwealth Privacy Act, regularly obtained.

98    [Mr Hunt] has made submissions about the operation of Queensland privacy law to support his “poisonous fruit” argument. However, even if contravention of that law could be shown, I accept the correctness of the decision in Goldie, above, which has been considered rightly decided in Abbasi and SZLWQ. (I note that Goldie was reversed on appeal but not in relation to this question.) The result is that I cannot see any basis upon which a “poisonous fruit” argument, as put on behalf of the applicant, can apply in this instance. There is nothing to suggest that the decision made by the Minister here lacked a jurisdictional basis. I do not see any basis to conclude that the Minister’s decision was infected with jurisdictional error because of the possible breach of Queensland privacy law.

99    I should add that I do not consider that the provisions of the Evidence Act 1995 (Cth) upon which the applicant relies to claim a court has a discretion not to adduce evidence unlawfully obtained, has any application in these factual and administrative circumstances.

47    It was for these reasons that the primary judge dismissed the first ground. This conclusion on the privacy law argument is the subject of the notice of contention.

Ground 2 – was the Minister’s refusal to revoke the cancellation decision legally unreasonable?

48    His Honour then moved to the second ground of unreasonableness. It was rejected. There is no cross-appeal.

Ground 3 – did the Minister commit jurisdictional error by failing to regard the suspended nature of the March 2003 convictions?

49    The live ground on the Minister’s appeal is ground 3. On this ground, Mr Hunt succeeded before the primary judge.

50    Ground 3 as then cast was particularised as follows:

3.1.    The [Minister] claimed to have suspected that [Mr Hunt] did not pass the character test set out in section 501(6)(e) of the Act on the basis of the offences on which he had been convicted in the District Court in Queensland on 20 March 2003.

3.2.    On all charges [Mr Hunt] had been sentenced to 9 months imprisonment wholly suspended for two years.

3.3.    At the time of the commission of the offences in October and December 2000 [Mr Hunt] was a juvenile aged 16. Had he been charged and sentenced as a juvenile, a sentence of imprisonment was unlikely.

3.4.    On 1 March 2010 he was convicted on multiple charges of failing to report, and sentenced to four months imprisonment to be served concurrently and suspended for 18 months. He has not subsequently been sentenced to a term of imprisonment.

3.5.    In failing to have regard to the suspension of the terms of imprisonment on the sexual assault charges in March 2003, and to the fact that [Mr Hunt] was a juvenile at the time of the offences with which he was charged, the [Minister] failed to have regard to a relevant consideration, reached his determination on an illogical, irrational, and unreasonable basis, and so fell into jurisdictional error.

(Emphasis added.)

51    After recording the parties’ submissions, the primary judge noted that two grounds of judicial review arose from the third ground as particularised:

(1)    the Minister’s failure to take into account a relevant consideration, namely, that the sentence for the March 2003 convictions was suspended for two years;

(2)    the failure to regard the fact of suspension of the term of imprisonment involved not only the failure to have regard to a relevant consideration but also a determination made on an illogical, irrational and unreasonable basis.

52    The first question for his Honour’s consideration was whether it could be said that the Minister failed to have regard to the fact that the sentence of imprisonment for nine months was suspended wholly for two years. His Honour noted that the Minister had put forward a range of factors to suggest that the Minister plainly would have been aware of the fact that the sentence was suspended. His Honour said while that material existed, the real question was whether the Minister actually had regard to the fact that the sentence of imprisonment was suspended for two years. In determining the answer to that question, what the Minister actually stated in his written reasons for decision was critical, not what he may have read.

53    On a fair reading of the Minister’s reasons, his Honour said, the proper conclusion was that the Minister did not make his decision on the basis that the sentence was suspended. It was a fact which escaped the Minister’s attention because he simply stated, without qualification, that Mr Hunt was convicted and sentenced. This statement as noted above, was in contrast to the Minister’s treatment of Mr Hunt’s convictions between 2007 and 2010 for failing to comply with a reporting obligations where the Minister did note the suspended nature of the sentence to a term of imprisonment.

54    In short, the suspended nature of the sentence in the latter case was expressly stated, but was not stated at all in respect to the March 2003 convictions.

55    His Honour considered that if the Minister had appreciated the true nature of Mr Hunt’s sentence for the March 2003 convictions, it was possible he may have taken a materially different view of the nature and seriousness of the relevant offences and so taken a different approach to the decision-making now challenged. His Honour concluded, as a question of fact, that the Minister made his decision on the basis that the relevant sentence was not wholly suspended for two years.

56    His Honour then turned to the next question, whether the sentence being wholly suspended was a mandatory consideration for the Minister to take into account. The parties were also opposed on that topic.

57    The primary judge observed that this Court has accepted in some circumstances, such as where a person has been invited to make a representation to the Minister under the Migration Act concerning a matter affecting the person and has done so, that the Minister may be bound to give proper consideration to the content of that representation. Decisions relied upon to support that proposition included Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, Hooton v Minister for Home Affairs [2018] FCAFC 142 and Minister for Home Affairs v Buadromo (2018) 362 ALR 48 (at [41]).

58    It seemed to his Honour to be equally correct to observe that where the Minister, in exercising the power under s 501(2) of the Migration Act, makes a certain factor central to his decision-making, that same factor thereby becomes a mandatory one to be considered properly by the Minister. To make a decision on the basis of misconstruction or misunderstanding of the factual basis of that central factor may lead to a finding of jurisdictional error in the final decision made by the Minister. In such a case, the “gravity” of the error made may indicate jurisdictional error. His Honour drew on the discussion in Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 per Kiefel CJ, Gageler and Keane JJ (at [25]).

59    His Honour said that while Mr Hunt did not make representations upon the invitation following the giving of the Notice, the Minister plainly and clearly identified the factors to be considered relevant to the decision to be made. Critically, those factors included the correct nature of the sentence for the March 2003 convictions.

60    In those circumstances, the primary judge took the view that the Minister’s decision was infected with jurisdictional error. Alternatively, his Honour was of the view that the misconstruction and misunderstanding of the “true nature of the sentence” was unreasonable in that it lacked a logical or evidential basis.

GROUNDS OF APPEAL

61    The grounds of appeal are succinct. They may be stated verbatim:

1.    The Court below erred in finding that [the Minister], in exercising the discretion to cancel [Mr Hunt’s] visa, failed to take into account the suspended nature of the sentence imposed in respect of [Mr Hunt’s] convictions on 20 March 2003.

2.    Further and in the alternative, the Court below erred in finding that:

2.1    the suspended nature of the sentence imposed in respect of [Mr Hunt’s] convictions on 20 March 2003 was a relevant consideration that the [Minister] was required to consider in exercising the discretion to cancel [Mr Hunt’s] visa; and

2.2    the [Minister’s] failure to consider that matter constituted jurisdictional error.

3.    Further and in the alternative, the Court below erred in finding that the [Minister’s] decision was unreasonable or illogical and thereby involved jurisdictional error.

NOTICE OF CONTENTION

62    There is also a notice of contention in the following terms:

His Honour should have held:

1.    That in the absence of evidence as to the circumstances in which [Mr Mullan] learned of the prior conviction of the Respondent [‘Mr Hunt’] this information was acquired unlawfully in breach of Queensland’s Information Privacy Act 1988 (Qld) [sic] [‘Information Privacy Act’].

1.1.    Mr Hunt had not consented to officers of [the Minister’s] Department [‘the Department’] acquiring information as to his criminal record.

1.2.    His criminal record was ‘sensitive information’ under the Information Privacy Act and protected by its Information Privacy Principles.

1.3.    There was no evidence before his Honour demonstrating that either Mr Mullan or his unidentified source in the Queensland Police Service had complied with the requirements of the Information Privacy Principles.

1.4.    In particular there was no evidence of an application having been made under section 43 of the Information Privacy Act.

1.5.    In the absence of compliance, information as to Mr Hunt’s prior convictions was unlawfully obtained, and the ‘fruit of a poisonous tree’.

1.6.    As such, unless brought within the provisions of section 138 (1) of the Evidence Act 1995 (Cth), it was inadmissible in support of [the Minister’s] claim lawfully to have cancelled Mr Hunt’s visa under the provisions of section 501(2) of the [Migration Act].

2.    That in the absence of evidence as to how sentencing remarks of the Queensland District Court judge had been acquired by the Department, and of an application having been made under section 43 of the Information Privacy Act, the document had been unlawfully obtained and should not be admitted.

3.    That the definition of ‘enforcement related activity’, and the reference to ‘misconduct of a serious nature’ in section 6(f) of the [Commonwealth Privacy Act], construed in context, required probable cause before the initiation of an investigation by the Department.

Particulars

3.1.    The construction contended for by the Minister would empower officers of the Department, without probable cause basis, to trawl through data otherwise protected by the [Commonwealth Privacy Act] in search of ‘misconduct of a serious nature’, and in so doing breach the privacy rights of classes individuals that are guaranteed by statute.

3.2.    Section 6(f) should be construed having regard to the other provisions of section 6, and to the statutory context of the section.

3.3.    The construction contended for by the Minister, and its application to the uncontested facts, could not be supported.

CONSIDERATION

Ground 1 of the appeal

63    The essence of this ground is that it was not open to the primary judge to conclude that the Minister failed to take into account the suspended nature of the sentence in respect of the March 2003 convictions.

64    The reasoning of the primary judge has just been discussed. Mr Hunt submits that the primary judge did not err by approaching the Minister’s statement of reasons with an eye too finely attuned to the detection of error.

65    The Minister elected to consider Mr Hunt’s case personally, confirming by declaration that “I have considered all relevant matters …”. He also signed a “Statement of Reasons for Cancellation of Visa under s 501(2) of the [Migration Act]”, in which he declared (at [36]) that he had considered all relevant matters including “(1) an assessment against the character test as defined by s 501(6) of the [Migration Act] and (2) all other information available to me, including information provided by, or on behalf of Mr HUNT” (emphasis added). In his statement of reasons the Minister also commenced his conclusion (at [42]) by observing “Having given due consideration to all of these matters …”.

66    As Mr Hunt notes, this statement was entirely erroneous and most unfortunate because Mr Hunt did not in fact provide any information. It would seem this “boiler plate”, but important statement could not have been properly examined by the Minister or his staff.

67    Mr Hunt argues a further factor to suggest that the Minister must have overlooked the fact that the March 2003 convictions sentence was suspended, was that suspension of his subsequent sentence was expressly mentioned when it was presumably thought to be a “relevant matter”.

68    Of course, it is clear that the primary judge’s conclusion that the Minister failed to appreciate the suspension factor rested on a careful analysis of the Minister’s statement of reasons. We have referred to the comparison relied upon by Mr Hunt and the incorrect statement that the Minister had taken into account Mr Hunt’s submissions.

69    For the Minister it is argued, in contrast, that the analysis by the primary judge was too finely attuned to the detection of error within the meaning of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ (at 272). It is submitted that whilst the absence of a reference to the suspension of the sentence may give rise to an inference supporting his Honour’s conclusion, that inference is weak. It relies on the omission of a reference to the suspended sentence, rather than any positive statement relevant to the sentence imposed in respect of that offending.

70    In our view the “omission”, if that is the correct description, could equally be explained by the Minister choosing to not place significant weight on the suspension of the sentence as opposed to, for example, the seriousness of the offending itself. That is, the Minister may not have considered the suspension to be important to his considerations. It could also, plausibly, have resulted from a mere inadvertence in the use of language, as distinct from an oversight of the actual fact of suspension.

71    When regard is had to the totality of the material before the Minister it is not appropriate, in our view, to draw the inference so as to find as a positive fact that the Minister overlooked the suspension.

72    Amongst that totality of material, the submissions put forward to the Minister by the Department expressly referred to the suspension of the sentence. It appears the primary judge gave less weight to this document than the statement of reasons. Although it may be appropriate in some instances to afford greater weight to a decision-maker’s statement of reasons than other material before the decision-maker, that approach is less plausible when the Minister did not personally draft the statement of reasons, but instead just adopted them by signature signifying acceptance.

73    Further, the Minister did sign the submission provided by the Department and also received Mr Hunt’s National Police Certificate as well as the remarks of the sentencing judge. All of these documents expressly referred to the suspension of the March 2003 convictions. Further, the sentencing remarks were specifically referred to in the statement of reasons.

74    It is clear that the Minister also understood that Mr Hunt was a minor at the time of the offending which, taking into account the express remarks appearing in the sentencing remarks, appears to be the principal reason that the sentence of imprisonment was suspended.

75    Having regard to all these matters, and having regard to Wu Shan Liang, there was an unsatisfactory foundation from which to infer that the Minister failed to have regard to the suspension of the sentence. While of course inferences which may be drawn will depend upon the facts of each particular case, the need for caution is apparent from Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158. In Eden, in very similar circumstances, the Full Court (Allsop CJ, Griffiths and Wigney JJ) said (at [73]):

As for the apparent suggestion that, by reason of the content of the issues paper or otherwise, the Minister failed to have regard to, or failed to give adequate weight to, the fact that Mr Eden’s sentence of imprisonment was fully suspended, it is clear that the Minister had the sentencing judge’s remarks on sentence before her. The issues paper also clearly indicated that Mr Eden’s sentence was fully suspended. A sentence of imprisonment which is fully suspended is nonetheless a sentence of imprisonment and is regarded as a “very serious form of punishment”: Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at [4] (Rares J, with whom Moore J agreed). It is “treated as the penultimate punishment in the hierarchy of sentencing options provided, just slightly lower in severity than the imposition of imprisonment to be immediately served”: Dinsdale v The Queen (2000) 202 CLR 321 at [77]; see also R v Zamagias [2002] NSWCCA 17 at [22]-[31] (Howie J, with whom Hodgson JA and Levine J agreed). Contrary to the apparent findings of the primary judge, it was open to the Minister to conclude, as she did … that the sentence imposed on Mr Eden was “indicative of the seriousness of his offending”. The fact that the sentence was wholly suspended did not mean that the offence was not very serious.

76    This purely factual question falls for determination essentially de novo on this appeal, purely by reference to the documents. This is not a case where the primary judge was presented with witnesses adducing oral evidence. There is no occasion, with respect, to defer to the finding of the learned primary judge on account of any perceived advantage in determining factual questions: Warren v Coombes (1979) 142 CLR 531 per Gibbs ACJ, Jacobs and Murphy JJ (at 552). In construing the proper inference to draw from the materials, this Court is in as good a position as the primary judge to determine whether the Minister understood the nature of the sentence imposed: see Fox v Percy (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ (at [25]) quoting Warren v Coombes (at 551). Given that a significant body of material was before the Minister and the Minister’s declaration confirmed that he had taken all the material that was before him into account, there is no proper basis to infer that he failed to take into account the fact that the sentence for the March 2003 convictions was suspended. It follows that the first ground of appeal must be allowed.

Grounds 2 and 3 of the appeal

77    Grounds 2 and 3 are, for all practical purposes, in the alternative. Although each of them is cast as being further and in the alternative, they only fall for consideration if ground 1 fails. That is to say they contend (assuming contrary to our finding) that had the Minister overlooked the suspended nature of the sentence, that such an oversight would not constitute jurisdictional error and was not unreasonable. In light of our finding on appeal ground 1, it is unnecessary to consider grounds 2 and 3.

78    We would say only in relation to ground 3, that as authority of this Court has already established in Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81, it is certainly possible that a conclusion that there was any risk of reoffending may be legally unreasonable in the particular circumstances. In this case, the ground does not fall for consideration.

Notice of contention

79    The notice of contention concerns two documents allegedly obtained by the Department in contravention of the Information Privacy Act 2009 (Qld) (Queensland Privacy Act). The first document is a “Queensland Person History” (the Criminal Record) which discloses Mr Hunt’s criminal record and the second is a transcript of the sentencing hearing before the District Court for the convictions of Mr Hunt in 2003 of two counts of indecently dealing with a child under 12 (the Sentencing Transcript). It was common ground that the Criminal Record was provided to Mr Aaron Mullan, an officer of the Australian Border Force, upon a request being made to the Queensland Police. It was also common ground that there was no evidence at trial as to the means by which the Sentencing Transcript came to be included in the materials before the Minister. Furthermore, it was not in issue that Mr Hunt’s Criminal Record and the Sentencing Transcript were “personal information” within the meaning of s 12 of the Queensland Privacy Act and fell within the sub-category of “sensitive information” as defined in the dictionary in Sch 5 to the Queensland Privacy Act.

80    Mr Hunt’s argument in support of the notice of contention reduced to the following essential propositions.

(1)    In concluding at [97] that Mr Hunt’s Criminal Record was regularly obtained under the Commonwealth Privacy Act, the primary judge misunderstood and failed to address the respondent’s case which was based on the failure to comply with the Queensland Privacy Act.

(2)    The primary judge erred in finding at [97] that Mr Hunt’s Criminal Record had been “regularly obtained” and therefore erred in his assessment of Mr Hunt’s “poisonous fruit” argument (as the argument was described by the primary judge at [95]).

(a)    With respect to the Queensland Police Service: There was no evidence to demonstrate compliance by the Queensland Police Service with the provisions of the Queensland Privacy Act in providing the Department with information concerning Mr Hunt’s conviction in 2003. Absent compliance, there was a breach of s 10.1 of the Police Service Administration Act 1990 (Qld) which makes it an offence improperly to disclose information, irrespective of whether or not there was a request for the information by the Department. Nor was there any evidence that the transcript of proceedings in the District Court (relied on by the Minister at [11] to [12] of his reasons) had been lawfully acquired by the Minister.

(b)    With respect to Mr Mullan: There was no evidence that, even if Mr Mullan made an initial request for the information, he did so conformably with the provisions of the Queensland Privacy Act; nor that he complied with those provisions in seeking Mr Hunt’s record from the Queensland Police Service in his email message of 14 September 2016. In this regard, the respondent submits that s 3 of the Commonwealth Privacy Act had the effect of requiring Commonwealth officers such as Mr Mullan to comply with the Queensland Privacy Act in seeking personal information in Queensland.

(3)    As his data had been accessed unlawfully, the Criminal Record and Sentencing Transcript were inadmissible under s 138 of the Evidence Act 1995 (Cth) and the primary judge erred in finding at [99] (without elaboration) that the discretion under that provision had no application to the circumstances of this case. Neither the Minister nor the primary judge relied upon any of the factors under s 138 to assess whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence which had been obtained in, or in consequence of a, contravention of an Australian law.

81    It may be accepted (without deciding) that the primary judge erred in the first respect alleged. However, even assuming that the primary judge did misunderstand Mr Hunt’s argument, with respect, the notice of contention must fail for the reason that the substantive errors alleged with respect to the Minister’s decision cannot succeed.

82    The short point is that Mr Hunt submits that it can be inferred that his Criminal Record had not been lawfully obtained, relying upon the Minister’s failure to prove compliance with the Queensland Privacy Act. However, it is well established that the onus lay upon Mr Hunt to establish jurisdictional error in the Minister’s decision: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 per Gummow J (at [67]); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 per French CJ, Bell, Keane and Gordon JJ (at [24]). As such, an absence of evidence cannot suffice to establish that the Queensland Police Service and Mr Mullan failed to comply with the Queensland Privacy Act. As this is the first step in Mr Hunt’s contention that the Minister’s decision is invalid, this difficulty is fatal to the notice of contention.

83    That notwithstanding, it is still helpful to identify (without endeavouring to be exhaustive) certain other difficulties which would have been fatal to issues raised on the notice of contention in any event.

84    First, the Queensland Privacy Act did not apply to Mr Mullan, as a Commonwealth officer. Mr Hunt relies upon the Information Privacy Principles (IPP) 10 and 11 set out in Sch 3 of the Queensland Privacy Act which apply by virtue of s 27 to the use of personal information by an “agency” subject to certain exceptions. An “agency” is defined in the Queensland Privacy Act to mean, relevantly, a “Minister”, “department”, “local government”, or “public authority” (see s 11 of, and Sch 5 to, the Queensland Privacy Act). Absent a contrary intention, these definitions refer to, respectively, “a Minister of the State”, an entity which is a department of government under the Public Service Act 2008 (Qld), or an agency “in and for Queensland”: s 33(1)(a) and (6) and s 35(1)(a) of the Acts Interpretation Act 1954 (Qld). The Queensland Privacy Act does not therefore purport in its own terms to require Commonwealth officers to comply with the Information Privacy Principles.

85    Nor does s 3 of the Commonwealth Privacy Act assist Mr Hunt. That section provides that:

It is the intention of the Parliament that this Act is not to affect the operation of a law of a State or of a Territory that makes provision with respect to the collection, holding, use, correction or disclosure of personal information (including such a law relating to credit reporting or the use of information held in connection with credit reporting) and is capable of operating concurrently with this Act.

86    As such, s 3 does no more than to state the Commonwealth Parliament’s intention to leave open the field relevantly for State laws to continue to operate to the extent that they are capable of operating concurrently with the Commonwealth Privacy Act. In other words, the provision makes it plain for the purposes of s 109 of the Commonwealth Constitution that the Commonwealth law is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws not inconsistent with the Commonwealth law to continue to operate to that extent: Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2 per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ (at [32]-[33]) and Gageler J (at [73]) (albeit that his Honour differed from the joint judgment as to the utility of distinguishing between so-called “direct” and “indirect” inconsistency). As such, nothing in s 3 of the Commonwealth Privacy Act purports to extend the operation of State privacy laws beyond their own terms, as the Minister submits.

87    Secondly, even if there were a breach of IPP 10 and IPP 11, it would not follow that the Minister’s decision to cancel Mr Hunt’s visa is invalid. Rather, as McHugh, Gummow, Kirby and Hayne JJ held in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [93] the question is “… whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.” The question is, therefore, one of construction of the statute in which “regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’”: ibid, see also Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 per Kiefel CJ, Gageler and Keane JJ (at [27]) and Edelman J (at [66]). In this case, the issue is therefore whether the Commonwealth Parliament intended that a decision made by the Minister under s 501(2) of the Migration Act 1958 (Cth) would be rendered invalid in circumstances where the Minister had regard to information obtained in circumstances where IPP 10 and IPP 11 were not complied with. The primary judge held that no such intention could be discerned and in so doing accepted the correctness of a line of authority in this Court, namely: Goldie v Commonwealth (2000) 180 ALR 609 per French J (at [85]-[87]); SZLWQ v Minister for Immigration and Citizenship (2008) 172 FCR 452 per Buchanan J (at [32]); Abbasi v Minister for Immigration and Multicultural Affairs [2001] FCA 1274 per Beaumont J (at [67]); see also MZZQC v Minister for Immigration and Border Protection [2015] FCA 685 per Yates J (at [17] and [32]).

88    In Goldie, French J (as his Honour then was) rejected a claim that the Commonwealth owed a duty to comply with the provisions of the Commonwealth Privacy Act so as not to release confidential information with respect to the applicant’s migration matters as a result of which the applicant claimed to have suffered harm and loss. In so holding, French J held that:

87. It is sufficient for present purposes to say that I accept the submission for the respondents that, even if a plea of a breach of the Privacy Act were made out, there is no relevant claim for relief apparent from the amended statement of claim. The Privacy Act itself provides the complaints to be made to the Privacy Commissioner (s 36), investigation by the Commissioner of the act or practice complained of (s 41) and a determination by the Commissioner dismissing the complaint or finding it substantiated (s 52). The determination may include a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint (s 52(1)(b)(iii)). The Commissioner or the complainant may commence proceedings in the Federal Court for an order to enforce a determination under the provision just referred to (s 55). This establishes a process which has not been followed in this case. Part VIII of the Act deals with the breach of obligations of confidence to which an agency or a Commonwealth officer is subject, however that obligation arose, and provides for a “confider” to recover damages from a “confidant” in respect of a breach of an obligation of confidence with respect to personal information (s 93).

89    It is apparent that the decision in Goldie concerned an issue somewhat different from that under consideration here. However, relying in part upon the decision in Goldie, Buchanan J in SZLWQ accepted in obiter that compliance with the Commonwealth Privacy Act was not a prerequisite to making a valid decision by the (then) Refugee Review Tribunal because the requirements for a valid decision are set out comprehensively in the Migration Act and the Commonwealth Privacy Act contains its own remedial provisions which are “self-contained”: SZLWQ at [32]; see also Abbasi per Beaumont J (at [67]). These decisions, in turn, were applied in MZZQC to reject the proposition that a decision of the then Refugee Review Tribunal was tainted by jurisdictional error by reason of a failure by the Tribunal to respect the appellant’s privacy: MZZQC per Yates J (at [17] and [32]).

90    We agree with the Minister’s submission that the decisions particularly in SZLWQ, Abbasi and MZZQC are plainly correct and the primary judge correctly applied them in the context of alleged non-compliance with State privacy laws. In this regard, the pre-requisites for a valid decision by the Minister to cancel a visa on character grounds are set out in Division 2 of Part 9 of the Migration Act where s 501 appears. There is no requirement in Division 2 or elsewhere in the Migration Act imposed on the Minister to comply with State (or Commonwealth) privacy laws in the obtaining of information. Nor is there any foothold in the text or structure of the Migration Act for implying any such requirement, and the objectives in s 4 of the Act do not include any purpose which the imposition of such a requirement might promote. Moreover, it is self-evident that a State law could not of itself impose any such duty upon a Commonwealth Minister or officer: see e.g. R v Hughes (2000) 202 CLR 535 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ (at [31]); see also Stellios, J, Zines’s The High Court and the Constitution (6th ed, 2015) (at 412). Unsurprisingly, therefore, the Queensland Privacy Act does not purport to do so (as we have earlier explained).

91    Finally, the discretion under s 138 of the Evidence Act 1995 (Cth) has no application to administrative decision-makers who are not bound to apply the rules of evidence or by the Evidence Act, albeit that the rules of evidence may afford guidance to administrative decision-makers: see s 4, Evidence Act; and e.g. Martin v Medical Complaints Tribunal (2006) 15 Tas R 413 per Evans J (at [15]) and the general discussion in the context of administrative tribunals in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 per Flick and Perry JJ (at [88]-[97]). As such, there was no requirement that the Minister undertake the balancing exercise required by s 138 of the Evidence Act before having regard to the Criminal Record or Sentencing Transcript. Indeed, with respect to the Criminal Record, there is nothing to suggest that this document was material to the Minister’s decision in the sense that exclusion of the Criminal Record could have made any difference to the decision in fact made. This is because the fact of Mr Hunt’s conviction of the child sex offences was established in any event by other evidence including the national police certificate. No challenge is brought to the lawfulness of the manner in which that other evidence was obtained. As such, any error in the case of the Criminal Record would not have been jurisdictional: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 per Kiefel CJ, Gageler and Keane JJ (at [30]-[31]).

92    It follows for these reasons that the notice of contention must be dismissed.

CONCLUSION

93    The appeal will be allowed. The notice of contention will be dismissed.

Associate:

Dated:    11 April 2019