FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Smith [2019] FCAFC 137

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

1    In this appeal the Minister contends that the primary judge erred in deciding that the Minister denied the respondent procedural fairness, as a result of which the primary judge ordered that the Minister’s decision of 16 April 2018 refusing to revoke the mandatory cancellation of the respondent’s visa be set aside: Smith v Minister for Home Affairs [2019] FCA 45.

2    We have decided that the primary judge’s conclusion is not attended by any error. Accordingly, the appeal must be dismissed. Our reasons follow.

Background facts

3    Ms Smith, a citizen of the United States, has lived in Australia since 1978, when she was about 12 years old, and held a Class BF transitional (Permanent) visa.

4    On 10 February 2005 Ms Smith was convicted of murder and sentenced to a mandatory term of life imprisonment. On the same day she was convicted of burglary for which she was sentenced to 10 years’ imprisonment to be served concurrently. She appealed against her conviction but the appeal was dismissed: R v Smith [2005] QCA 204.

5    On 19 June 2017 a delegate of the Minister was satisfied that the requirements of s 501(3A)(a) and (b) of the Migration Act 1958 (Cth) (the Act) were met with the consequence that Ms Smith’s visa was subject to mandatory cancellation.

6    Ms Smith made representations to the Minister in accordance with the Minister’s invitation to do so, seeking the revocation of the mandatory cancellation of her visa under s 501CA(4) of the Act. As it was common ground that Ms Smith did not pass the character test, in order to revoke the cancellation of her visa the Minister was required to be satisfied that there is “another reason why the original decision should be revoked” pursuant to s 501CA(4)(ii).

7    In his statement of reasons, the Minister recorded the background to the offences by reason of which Ms Smith failed the character test. He recorded that Ms Smith had been in a relationship with the deceased. During the relationship with the deceased, the deceased had been extremely jealous and possessive and became aggressive when people would talk to her. The deceased verbally abused her in public and her friends feared for her safety at the hands of the deceased which is why she ended the relationship. During the breakdown of their relationship, the deceased had threatened to burn down Ms Smith’s house. At the time of the offences, Ms Smith was in another relationship with one Michael Corry. The Saturday before the murder, the deceased had gone to Ms Smith’s house and physically assaulted her. On a subsequent night, Mr Corry went to the deceased’s house and murdered him during a physical altercation. Ms Smith was convicted of murder on the basis that the murder was a probable consequence of a common intention between her and Mr Corry that Mr Corry should enter the deceased’s house at night with a view to either robbing or assaulting him.

8    In her representations to the Minister, Ms Smith maintained that she was innocent of the convictions which led to her imprisonment. She said that she was not an unacceptable risk to the community as, amongst other things, “[n]one of the allegations involve illegal recreational drugs” and “I do not have a drug, alcohol or gambling problem”.

9    The National Police Certificate which was part of the material before the Minister recorded various convictions and fines for minor drug related offences between 1994 and 2002. Another record shows that Ms Smith was convicted and fined for a drug related offence which occurred two days after the murder.

10    It is common ground that neither the sentencing remarks relating to the murder and burglary convictions, nor the reasons for judgment of the Queensland Court of Appeal, suggest that drugs played any role in the commission of those offences.

11    At [80] of his reasons, the Minister noted Ms Smith’s representation that she does not have a problem with drugs, alcohol or gambling. At [82] the Minister said that:

I note that there is uncertainty around the drivers of Ms SMITH’S offending, however, on balance, it appears likely to be a combination of substance abuse issues and Ms SMITH’S own experiences of domestic violence.

12    At [93] the Minister said:

I accept MS SMITH has made progress in addressing the substance abuse issues that have driven her offending. However, I note she claims not to have a drug problem. I find this lack of awareness increases the likelihood of her offending in line with her early criminal history.

13    The Minister also said:

110.    While Ms SMITH has made some progress to reform through custodial rehabilitation, I find her ongoing denial regarding her guilt for the offence of murder and her denial of any offending involving illegal substances is indicative of her propensity to re-offend.

111.    I find that there is a likelihood that Ms SMITH will re-offend, albeit a low likelihood.

112.    I consider that should Ms SMITH re-offend in a similar manner, it could result in physical harm to members of the Australian community.

14    It was not in dispute that the only offence which Ms Smith had committed which had caused harm to a person was the offence of murder. While not critical to the disposition of the appeal, the Minister’s reasoning is far from clear. The murder conviction arose out of a specific context in which a previous relationship characterised by abuse between the deceased and Ms Smith had broken down, with the deceased physically assaulting and threatening Ms Smith shortly before the murder. Whether the Minister was saying that there was a likelihood, albeit a low likelihood, of Ms Smith committing a similar offence to the murder or of committing a similar offence to her minor drug related offences, is unclear. The former may seem unlikely having regard to the unique circumstances out of which the convictions for murder and burglary arose. However, given that her earlier offences involved no physical harm to any person (other than, perhaps, herself), it was common ground that the offence the Minister must have had in mind and which was central to his decision-making process was the murder. Given that this consideration was central to the Minister’s decision-making process, the existence of the ambiguity is regrettable. The Minister found that while the risk of Ms Smith re-offending was low, the harm caused by Ms Smith was such that “any risk of re-offending is too great a risk”. The ambiguity in the Minister’s reasons means that the decision-making process does not accord with one of the central principles underlying the requirement to give reasons, that is, to ensure that decision-making processes are transparent. In any event, for these unclear reasons, the Minister concluded that he was not satisfied that there was another reason why the original decision to cancel Ms Smith’s visa should be revoked.

The primary judge’s reasons

15    The primary judge rejected two grounds of judicial review including that of legal unreasonableness. It had been contended that the Minister misunderstood Ms Smith’s representations which she said were to the effect that the murder and burglary convictions were not drug-related, and that she had not been proposing that none of her convictions were drug related (as plainly some of them were). These grounds, rejected by the primary judge, are a direct result of the lack of clarity of the Minister’s process of reasoning. The primary judge concluded at [61] that, read fairly and in context:

…[110] formed part of the Minister’s response to Ms Smith’s representation that there was no allegation made against her in relation to the murder that her conduct involved illegal drugs. In effect, the Minister proceeded on the basis that Ms Smith was denying that her conduct there was drug related.

16    At [63] the primary judge held that there was probative evidence to support the Minister’s tentative view that Ms Smith’s offending in respect of the murder and burglary were driven by a combination of substance abuse and her prior experience of domestic violence, including the fact that Ms Smith had been convicted of possessing dangerous drugs two days after the murder. As will become apparent, the Minister maintained that the fact that the Minister’s view was held by the primary judge to be reasonably open on the evidence was also relevant to the issue of procedural fairness which the primary judge decided against the Minister.

17    In dealing with the issue of procedural fairness the primary judge provided an orthodox summary of the relevant principles saying:

69    It is well settled that a decision-maker is not required to give a running commentary or “expose his or her mental processes or provisional views” (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 592). A decision-maker is, however, required to identify for the person affected “any critical issue not apparent from the nature of the decision or the terms of the statutory power” and advise of any adverse conclusions “which would not obviously be open on the known material” (see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 (SZGUR) at [9] per French CJ and Kiefel J). Although those observations in SZGUR related to decision-making by the then Refugee Review Tribunal, I consider that they are equally applicable to decision-making under s 501CA(4) of the Act.

70    It is important also to note the Full Court’s following observations in Alphaone at 590-591 (emphasis added):

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 55 FLR 34 at 41. However, as Lord Diplock said in F Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:

...the rules of natural justice do not require the decisionmaker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished.

71    The emphasised words in the extract above from Alphaone were expressly approved by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL) at [32] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Their Honours also emphasised the need for “considerable care” in applying a dichotomy between conclusions which are not obviously open on the known material and the mental processes of decision-making (see SZBEL at [31] and the further observations of the Full Court on this matter in Stowers [Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174] at [40]).

72    It is also well settled that the requirements of procedural fairness are to be determined by reference to the statutory framework within which a decision-maker exercises a relevant power and that “the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case” (SZBEL at [26], citing Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504).

73    The following observations of the Full Court in Stowers at [43] and [44] are pertinent, noting that they are also directed to decision-making under s 501CA(4) of the Act:

43.    As the brief analysis of relevant caselaw above indicates, it is well settled that the statutory context, and the particular facts and circumstances, are important in determining whether or not there has been procedural unfairness. In some instances, procedural fairness does not require a decision-maker to put to an affected person every piece of information the decision-maker will consider. It may be sufficient merely to put the substance of the material to the person (see, for example, Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223).

44.    The underlying purpose of the requirements of notice or disclosure as aspects of procedural fairness is another important consideration. It is to provide an opportunity for meaningful participation by the potentially aggrieved person and to enable the person fairly to respond to adverse matters. As the Full Court observed in Traill v McRae [2002] FCAFC 235; 122 FCR 349 (Sackville, Kenny and Allsop JJ) at [134], what constitutes adequate notice of a matter and when it should be provided is to be decided by reference to the circumstances of the case in question and is directed to enabling the affected person “fairly to respond”. In our view, those observations apply equally to disclosure.

74    Each case necessarily turns on its own particular facts and circumstances but helpful general guidance as to the nature and extent of the required disclosure of the matters which may be critical to a decision is also provided by the Full Court’s statement in Stowers at [49], i.e. that advice or notification of such critical factors must be “practical, direct and non-misleading”.

18    The primary judge said this about the Minister’s reasoning process:

81    Ms Smith was aware from the terms of Direction 65 that a potentially important issue to the decision to be made under s 501CA(4) was the seriousness of her prior offending and the risk of her re-offending. Indeed, the relevant part of her representations expressly addressed why she said that she was not an unacceptable risk to the community.

82    For the reasons given above, the Minister reasonably understood Ms Smith’s statement that none of the “allegations” involve illegal recreational drug were directed to her murder/burglary conviction.

83    There was no direct evidence before the Minister which was inconsistent with Ms Smith’s statement of fact concerning those allegations.

84    The Minister viewed Ms Smith’s assertion of fact as amounting to a denial on her part that her murder/burglary offending was drug related.

85    This “denial” was relied upon by the Minister, together with Ms Smith’s denial concerning her guilt for the murder, as being indicative of her propensity to re-offend.

86    For the reasons set out in [80] and [82] of the statement of reasons, the Minister found that, although there was uncertainty about the “drivers” of Ms Smith’s murder/burglary offending, on balance it appeared to the Minister that it was likely a combination of substance abuse issues and Ms Smith’s past personal experiences of domestic violence.

19    His Honour continued, expressing his conclusions that this process of reasoning, while legally reasonable, nevertheless denied Ms Smith procedural fairness. The primary judge said (our emphasis to highlight the critical part of his Honour’s reasoning):

87    It was open to the Minister to adopt this path of reasoning but, if he did, he needed to comply with procedural fairness requirements. Merely because a finding or decision is legally reasonable and rational does not mean that it was arrived at by a process of decision-making which meets procedural fairness requirements. In my view, applying the approach in Stowers as to whether in all the circumstances Ms Smith had been given practical, direct and non-misleading advice (or notice) as to the factors which might be critical to the Minister’s decision, this did not occur. Although Ms Smith herself drew the Minister’s attention to her assertion that, as a matter of fact, the allegations against her concerning the murder conviction were not drug related, she could not reasonably have anticipated that the Minister would characterise her assertion of fact as a denial on her part that drugs were involved, that he would come to his own view on that matter notwithstanding that there was no finding in the criminal proceeding that drugs were involved, nor that the Minister would proceed to use the denial which he attributed to Ms Smith as part of his reasoning as to why he considered that there was a risk that Ms Smith might re-offend. It may have been open to the Minister to come to his own view on these matters, based on the material before him, but procedural fairness required that Ms Smith be given a prior opportunity to comment on those matters. She was denied that opportunity because nothing in the material which she was given or the statutory scheme itself adequately disclosed that the Minister might approach the decision-making process in the way that he did. In the particular circumstances, the denial of procedural fairness is itself the source of practical injustice to Ms Smith (see Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [82] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ and Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [60] per Gageler and Gordon JJ).

88    For completeness, I would add that the reasons given above as to why there was procedural unfairness would apply equally even if [110] of the Minister’s statement of reasons were read more broadly and covered all of Ms Smith’s offending. The all-encompassing reference there to “any offending” must also include a reference to the offending which gave rise to the murder/burglary convictions.

The Minister’s submissions in the appeal

20    The Minister submitted that his Honour’s conclusion that Ms Smith could not have reasonably anticipated the use the Minister made of her statement, that the allegations against her did not involve illegal recreational drugs and that she did not have a drug problem, was unsustainable. The Minister contended that these statements of Ms Smith were a denial by her that drugs were involved in her offending at least for the murder and burglary convictions. The Minister said it was therefore difficult to see how the primary judge could have concluded that it could not reasonably be anticipated that this assertion would be treated as a denial. Further, given that the Minister is not obliged to accept uncritically every assertion made in a representation, it followed that the Minister was entitled to reject the denial.

21    The Minister also submitted that the fact that there was no finding in the criminal proceeding that drugs were involved in the murder and burglary is not to the point because there was also no finding that drugs were not involved. The Minister said that there was probative evidence, as the primary judge had found at [63], that drugs had played a role in Ms Smith’s commission of these offences. Given that some of Ms Smith’s other offences were clearly connected to drug use and that she was convicted of a drug offence two days after the murder, the Minister said that the possibility a decision-maker could reasonably suspect there was a link between her drug use and the circumstances that led to her murder and burglary offences was obvious and not opaque.

22    According to the Minister, the obviousness of the relevance of drug-taking to the issue was demonstrated by the fact that Ms Smith made a representation “denying that she had a drug problem” and “denying that the murder and burglary …offending were drug related”. As such, the Minister said that both Stowers and Degning v Minister for Home Affairs [2019] FCAFC 67 were distinguishable as these cases involved a decision-maker drawing an inference that was not obvious from evidence, the relevance of which was not explained, whereas in this case the Minister simply did not accept a contention raised by Ms Smith.

23    The Minister said that if Ms Smith’s assertions that she did not have a drug problem and the murder and burglary convictions were not related to illegal drugs were not accepted by the Minister, it was obvious that this might bear on the prospect that she would re-offend. The Minister said that as a result, procedural fairness did not require that the Minister put Ms Smith on notice of this obvious line of reasoning. As the Minister put it: “the fact that [Ms Smith] asserted that her risk of reoffending should be assessed in light of her claim that the ‘allegations’ were not drug related, and her claim that she did not have a drug problem, suggests that she in fact appreciated the relevance of the matters”.

24    The Minister also said the primary judge’s reasoning at [88] was flawed as the finding of the propensity of Ms Smith reoffending was not undermined if at least one of her convictions was drug related. Further, if the primary judge’s conclusion in [87] was as flawed as the Minister proposed, then it must also follow that [88] of his Honour’s reasons could not stand.

Consideration

25    The problem with the Minister’s approach, as the primary judge’s reasons implicitly recognise, is that the critical representation she made (to the effect that the murder and burglary “allegations” did not involve drug-use) did not amount to a denial of drugs being involved in her commission of these offences. The context of the representations is important. As the primary judge noted in [87], there was no finding in the criminal proceedings that drugs were involved. Accordingly, there was no call or occasion for Ms Smith to deny that which had not been asserted against her. She was making a representation, consistent with all of the available material about the circumstances of her convictions for murder and burglary, that drugs were not involved. As the primary judge found at [61], it was the Minister who treated this as a denial that drugs were involved contrary to his own finding to that effect and then used the purported denial to bolster his conclusion that Ms Smith had a propensity to re-offend. It is this sequence of inferences that the primary judge found was not obvious in the circumstances and which underpinned the denial of procedural fairness to Ms Smith.

26    We agree with the parties that the relevant standard of obviousness or otherwise is to be applied objectively, that is with regard to the position of a reasonable person in all of the circumstances in which Ms Smith was in at the time she made her representations. At that time there was no suggestion that drugs were involved in the murder and burglary offences. It may be accepted that she made a representation to the Minister to that effect as relevant to her risk of re-offending. But nothing in the circumstances called for her to make a denial of any involvement of drugs. An apparently uncontentious assertion is one thing. A denial, which involves the concept of the refutation of an asserted or accepted fact, is another. As the primary judge said, what could not have been reasonably anticipated by a person in Ms Smith’s position was that despite there being no mention of drugs as relevant to her commission of the murder and burglary, the Minister would not only find to the contrary but would also treat her representation as a denial of her offending involving illegal substances thereby founding an inference, by reason of her denial of that fact as found by the Minister, that she would have a propensity to re-offend.

27    The Minister’s submissions do not recognise the importance of the context in which Ms Smith was making her representations to the lack of a fair opportunity to address these factual inferences upon which the Minister’s conclusion depended. Once it is accepted that Ms Smith was not issuing a denial in making her representations, it follows that the Minister’s submissions cannot be accepted.

28    First, in the circumstances as they existed, Ms Smith could not have reasonably expected that her statement would be seen as a denial contrary to the Minister’s own factual finding that drugs were involved in her commission of the murder and burglary. The statement she made that drugs were not involved reflected the court records as they existed in respect of her convictions for murder and burglary.

29    Second, and contrary to the Minister’s submission, it is to the point that there was no finding in the criminal proceeding that drugs were involved in the murder and burglary. It is the fact on which the Minister relies, that there was no finding that drugs were not involved, which is not to the point. A reasonable person in Ms Smith’s position would expect that the court records relating to her convictions reflected all relevant circumstances. To put it another way, the context in which Ms Smith was making her representations was one in which there was no suggestion in the court records dealing with those offences that the offences of murder and burglary were drug related. It would not have been obvious to a person in Ms Smith’s position that the Minister would find to the contrary and treat her previously uncontentious assertion that no drugs were involved as a denial of a proposition that the Minister had found to be true. There is a fundamental qualitative difference between an apparently uncontentious assertion, which Ms Smith had made, and a denial of a proposition. Unless and until the Minister had made his finding that substance abuse was a causative factor in the offences there was nothing for Ms Smith to deny. An uncontentious assertion could not have a logical connection to a propensity to re-offend. A denial of a true proposition, however, has such a logical connection. It was the treatment of her assertion as a denial by the Minister which could never have been reasonably anticipated on the facts and in the circumstances as they existed at the time she made her representations. This, as the primary judge’s process of reasoning recognised, was critical to the denial of procedural fairness as found.

30    Third, the fact that there was probative evidence which might support the Minister’s finding that drugs had played a causative role in the offences of murder and burglary (as the primary judge accepted at [63]) does not mean that the link between drugs and her offending was obvious. As the primary judge recognised it was the particular circumstance that there was no finding in the criminal proceedings that drugs were involved that was relevant. Given that specific circumstance, the link between drug use and the offences of murder and burglary would not have been obvious to a reasonable person in Ms Smith’s position at the time she made the representations. To the contrary, it is only in the light of the Minister’s finding of a causative role of drugs in the offences, which was contrary to the court records and which itself could not reasonably have been anticipated, that it could be said that there was any obvious link. Absent that finding, there was no reason at all for Ms Smith to have anticipated that the Minister would treat her apparently uncontentious assertion as a denial of a proposition that the Minister had found to be true.

31    Fourth, and for these reasons, the obviousness of the relevance of the issue to the decision the Minister had to make is not established by the fact that Ms Smith made a representation denying she had a drug problem and denying that the murder and burglary were drug related. As explained above, Ms Smith did not make any such representation. She had no reason to issue such denials at the time she made the representations and did not do so. The Minister could convert her assertions into denials only because of the fact he found that substance abuse was causative of the murder and burglary offences.

32    Fifth, it may be accepted that Stowers and Degning involved different circumstances. Whether or not there has been a denial of procedural fairness always requires consideration of the particular facts and circumstances. The primary judge was well aware of this principle and his reasoning demonstrates that his focus was on the particular facts and circumstances of the present case. In Degning at [6] Allsop CJ referred to his reasons in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 at [6]-[7] that:

The requirements of procedural fairness are not generally apt for precise delineation. Some aspects can be reduced to a verbal expression of law. The test for apprehended bias is perhaps an example of that. The difficulty in precise formulation of many aspects of the requirements is that the informing norm and root of the principle is fairness: Kioa v West [1985] HCA 81; 159 CLR 550 at 583-585. Even in relation to the proper test for apprehended bias, however, the use of the fair-minded observer in the construct imports the norm of fairness: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2].

Fairness is normative, evaluative, context specific and relative. As such, its assessment is sometimes imprecise in articulation and open to debate. Nevertheless, subject to any clear contrary statutory intention, fairness is an inhering requirement of the exercise of state power: Jarratt v Commissioner of Police for NSW [2005] HCA 50; 224 CLR 44 at 56-57 [26]; and SZRUI at [5].

33    Further, it is not accurate to characterise the Minister’s reasoning as the Minister simply not accepting a contention raised by Ms Smith. It is the Minister’s conversion of what was an apparently uncontentious assertion at the time it was made into a denial of a proposition of truth (on the Minister’s finding) which is at the heart of the denial of procedural fairness in this case. This process of reasoning by the Minister cannot reasonably be characterised as the mere rejection of a contention Ms Smith made. This is what, in our view, the primary judge rightly recognised at [87] of his reasons.

34    Sixth, and relatedly, the Minister did not use the mere rejection of Ms Smith’s contentions as a reason for finding a propensity to re-offend. The Minister used her denial of a proposition the Minister’s own findings made true (the causative link between drug use, and the murder and burglary) as the basis for the conclusion of her propensity to re-offend. This accords precisely with the primary judge’s characterisation of the Minister’s process of reasoning. We agree with the primary judge’s characterisation for these reasons and the conclusion he reached of a denial of procedural fairness.

35    For these reasons the appeal should be dismissed with costs.

Associate:

Dated:    19 August 2019