FEDERAL COURT OF AUSTRALIA

Ranginui v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1280

MIGRATION – cancellation of permanent resident visa under s 501(2) of Migration Act 1958 (Cth) – Minister found that applicant did not pass “character test” – Minister made decision personally – breach of natural justice – applicant not provided with report containing adverse information upon which Minister relied – Federal Magistrate found that decision not affected by breach – whether stringency of applicable test correctly appreciated

Migration Act 1958 (Cth) ss 501(2), 501(6), 501(7)(c), 501G(e)

Ranginui v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 401 referred to

Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311 at 317 referred to

Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 631 referred to

Kioa v West (1985) 159 CLR 550 at 628-629 referred to

Moore v Guardianship and Administration Board [1990] VR 902 at 912 referred to

Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 at 504 referred to

Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 at 122, 116-117, 122, 130-131 applied

VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 448 at par [17] referred to

Western Australia v Ward (2002) 191 ALR 1 referred to

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 referred to

Fox v Percy (2003) 197 ALR 201 referred to

Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 applied

Wilde v The Queen (1988) 164 CLR 365 referred to

John v Rees [1970] Ch 345 at 40 cited

KIMBERLEY RANGINUI v MINISTER FOR IMMIGRAITON AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V907 of 2003

WEINBERG J

12 NOVEMBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.                  Leave to appeal from the judgment of the Federal Magistrate, given on 19 September 2003, be granted.

2.                  The appeal be allowed.

3.                  The decision to cancel the appellant’s visa, made on 19 December 2002, be set aside.

4.                  The appellant’s costs of the application for review before the Federal Magistrates Court, and the appellant’s cost of the appeal to this Court, be paid by the respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a judgment of a Federal Magistrate given on 19 September 2003: Ranginui v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 401.  By that judgment, his Honour dismissed an application, made under s 39B of the Judiciary Act 1903 (Cth), for review of a decision made on 19 December 2002 by the Honourable Philip Ruddock, who was then the Minister, to cancel the applicant’s permanent resident visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).  The Minister concluded that he reasonably suspected that the applicant did not pass the “character test”, and that he had decided to exercise his discretion to cancel the visa.  Because the Minister made the decision personally, the applicant had no right of merits review in the Administrative Appeals Tribunal. 

2                     Mr Ruddock is no longer the Minister.  For convenience, however, I will refer to the decision to cancel the applicant’s visa as having been made by “the respondent”.

3                     Leave to appeal is required because the Federal Magistrate has not yet dealt with all of the grounds upon which the applicant relied in support of her application.  A constitutional question, which relates to whether a person in a similar position to the applicant – namely, a national of New Zealand who arrived in Australia in around 1980 – is an alien, is currently the subject of consideration by the High Court in Shaw v Minister for Immigration and Multicultural and Indigenous Affairs.  It appears to be common ground between the parties that the decision in that case may determine the outcome of the constitutional issue in the present case.  In the interim, the applicant remains in migration detention.  She claims that the respondent’s decision ought to have been set aside upon a separate ground, that the respondent denied her natural justice.  If that ground of review were upheld, she would be entitled to be released from detention. 

The applicant’s background

4                     The applicant is a national of New Zealand, having been born there on 7 April 1982.  She is now 21 years of age.  She arrived in Australia on 9 June 1982, aged 2 months.  She has lived in this country almost continuously since that time on a permanent resident visa. 

5                     On 5 June 2001, the applicant was sentenced to a term of eighteen months imprisonment with a non-parole period of nine months for a series of robberies, and various other drug-related offences.  The offences were all committed at railway station platforms, and on trains.  She was released on parole on 18 February 2002.  However, within a week or two of her release, she re-offended.  On 28 March 2002, she was again convicted of various offences, and sentenced to a further nine months imprisonment.  She was also required to serve some or all of the breached parole period, making a total of almost eighteen months. 

6                     Because the applicant was sentenced to a term of imprisonment of 12 months or more in June 2001, she was deemed for the purposes of “the character test” in s 501(6) of the Act to have a “substantial criminal record”.  See s 501(7)(c).  Her situation was, if anything, made worse by the second term of imprisonment imposed in March 2002.

7                     On 19 December 2002, the respondent cancelled the applicant’s visa.  In doing so, he purported to exercise the discretion conferred upon him, by s 501(2), to cancel a visa. 

8                     The further term of imprisonment imposed upon the applicant has now expired.  However, she remains at the Dame Phyllis Frost Women’s Correctional Centre, not as a serving prisoner, but as a person in immigration detention. 

Events leading to the cancellation of the visa

9                     On 6 May 2002, a delegate of the respondent wrote to the Governor of the Dame Phyllis Frost Centre requesting information regarding the applicant’s behaviour while in custody.  The request sought information, inter alia, regarding any disciplinary breaches, substance abuse, and “security issues”.  It also asked for comments regarding the applicant’s progress towards rehabilitation, and requested an assessment of the risk of her re-offending. 

10                  The prison authorities responded to that request by letter dated 10 May 2002 (“the CORE letter”), which commenced:

“RANGINUI has been involved in a total of 19 incidents while in prison custody.  Incidents involve assault against staff, assaults against prisoners, numerous refusals of drug tests, out of bounds, possess unauthorised articles, damage property and others.

11/9/99 – Out of bounds area.

12/06/00 – Out of bounds area – Guilty

21/06/00 – Good Order, Not Notifiable – Guilty

04/07/00 – Other Drug, Not Notifiable

6/07/00 – Refused drug test – Guilty

28/07/00 – Damaged property in cell – Guilty

28/07/00 – Pending Investigation

10/08/00 & 08/09/00 & 09/09/00 & 10/09/00 – Refused drug tests – Guilty

21/09/00 – Assault prisoner

04/04/01 – Refuse drug test – Guilty

26/05/01 – Assault prisoner

18/06/01 – Suspected of Chroming – Not guilty

18/06/01 – In possession of earstuds, not authorised

14/07/01 – Syringe in cell – Found not guilty, dismissed

06/08/01 – Assault staff

07/08/01 – Smashed prison issue cupboards and abusive to staff – Guilty

As can be seen by incident history, it appears that RANGINUI can be quite difficult to manage.” (emphasis added)

11                  The CORE letter went on to detail the various urine samples that had been taken from the applicant whilst in custody.  It noted that she had refused to provide such samples on six occasions.  The last refusal had occurred on 4 April 2001, more than twelve months previously. 

12                  The CORE letter concluded with a list of “Incidents Outcomes”.  It referred to what had occurred on 26 May 2001, namely the “assault prisoner” incident, as having been “finalised”.  It also described as “finalised” the “assault staff” episode of 6 August 2001. 

13                  The applicant was interviewed on two separate occasions regarding the proposed cancellation of her visa.  On 5 February 2002, a delegate of the respondent interviewed her in person.  The interview was tape-recorded, and the delegate also took notes.  The applicant was invited to comment upon the seriousness of the offences that had resulted in her then current imprisonment, and the circumstances under which those offences had been committed.  She was also asked whether there were any mitigating circumstances that should be taken into account, and what steps, if any, she had taken to ensure that she would not re-offend.  It is important to note that she was not asked any questions about her behaviour in prison.

14                  The second occasion involved a telephone interview with the applicant, on 28 August 2002.  As indicated earlier, she was, by that time, serving her second term of imprisonment, which had commenced on 28 March 2002.  She was asked to explain how it was that she had re-offended so soon after release from her previous sentence, and how she now viewed her prospects of rehabilitation.  She said that she had done well for the first ten days after her release, but found the next week very difficult.  She had gone back to using various drugs, especially “speed”, but claimed that she had not resumed using heroin.  She said that since her return to custody, she had agreed to nine random urine tests, and that all had been negative.  She said that she was receiving counselling, and that this was proving to be beneficial. 

15                  The record of telephone interview then reads as follows:

“Ms Ranginui claimed that she had been involved in only one incident during her current incarceration.  She confirmed that she was still in the Protection Unit.  Ms Ranginui stated that, unlike when she has been in prison previously, she is consciously avoiding prison politics during her present incarceration.”

16                  On 13 November 2002, a representative of CORE advised a delegate of the respondent that the applicant had undergone a total of five urine tests since 2 April 2002, and that the results were all negative.  She said that the applicant had undergone all random tests that were required during her current period incarceration.  She also said:

“…the criminal charges of 30 July 2002 relate to the prison incident at the Dame Phyllis Frost Women’s Correctional Centre in August 2001.  A first committal hearing date has been set for December 2002.”

17                  On 19 November 2002, the Manager of Caraniche Drug and Alcohol Services, a private drug counselling service, wrote to the delegate in response to a request for updated information regarding the applicant’s drug rehabilitation program.  It is fair to say that the report was positive.  It concluded:

“Ms Ranginui appears to be genuine in her desire for change.  She appears to be motivated to address the links between her life experiences, drug use and criminal behaviour and to develop strategies to assist her to maintain a drug-free and crime-free lifestyle upon release from prison.”

The decision to cancel the applicant’s visa

18                  As indicated earlier, the respondent concluded, on 19 December 2002, that the applicant’s visa should be cancelled.  The decision record notes that the Minister had regard to two matters, in particular, in arriving at that conclusion: the protection of the Australian community, and the community’s expectations as to whether someone with the applicant’s criminal record should be permitted to remain in this country. 

19                  Paragraph 24 of the decision record dealt with the applicant’s conduct whilst in custody.  It noted that she had been charged, on 30 July 2002, with various offences allegedly committed in August 2001 during an incident that had occurred whilst she was serving her previous term of imprisonment.  The charges involved two counts of intentionally causing injury, two counts of unlawful assault, two counts of assault by kicking, and one count of affray.  The decision record noted that the charges were scheduled to be heard in April 2003.

20                  Paragraph 35 commented that the applicant had stated that she had been “involved in only one incident which occurred early in her sentence, when she was still ‘playing up’”.  It was noted that the applicant claimed that, during a fight among prisoners, she had accidentally hit a prison officer.  She stated that she had been aiming to hit another prisoner who had made a derogatory remark about her family.  A prison officer was holding the prisoner, and the applicant had accidentally hit the officer instead.  The applicant denied having intentionally assaulted the prison officer, and claimed that the officer had acknowledged that what had occurred had been accidental.  She said that she had been placed in the Protection Unit as a result of this incident.  She was currently awaiting the outcome of the criminal charges.

21                  The respondent was asked to provide reasons for his decision to cancel the applicant’s visa.  It was accepted that the decision record did not satisfy the requirements of s 501G(e), namely that the Minister must give a person whose visa is cancelled a written notice that sets out the reasons for the decision: see generally Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311 at 317 per Stone J.  On 10 July 2003, a statement of reasons was provided.  It was essentially in the same terms as the decision record.  It identified the primary considerations that the respondent had taken into account as being the protection of the Australian community, and the expectations of the community regarding the applicant’s continued presence in this country.  Under the general ambit of protection, it highlighted the seriousness and nature of the applicant’s criminal history, and the risk of recidivism.  It also referred to the need to cancel her visa in order to deter others from engaging in similar activities.

22                  It is important to note the respondent’s comments regarding the risk of recidivism.  He said that he had considered the applicant’s pattern of criminal behaviour between 1999 and 2002, including the offences committed after her release on parole on 18 February 2002.  He noted the statements that she had made regarding her prospects of rehabilitation.  He also noted the record of telephone interview on 28 August 2002, the submissions made on her behalf by Victoria Legal Aid, and the report from Caraniche regarding her drug rehabilitation.  Significantly, he referred specifically to “the additional report from CORE” (the CORE letter).  He concluded:

“I assessed that there was a continuing medium to high risk that Ms Ranginui might re-offend.  I placed significant weight on her risk of recidivism.”

Proceedings before the Federal Magistrate

23                  On 28 August 2003, the applicant commenced proceedings in the Federal Magistrates Court seeking review of the respondent’s decision to cancel her visa.  Her application was given an expedited hearing, and was heard on 12 September 2003.  The applicant relied upon four grounds. 

24                  Ground 1 asserted that the respondent lacked power to make a decision to cancel her visa because s 501 did not apply to the applicant.  The subsection could only be invoked in relation to persons who were relevantly “aliens”.  The applicant did not fall within that description. 

25                  Ground 2 alleged a denial of natural justice arising out of a failure on the part of the respondent to inform the applicant of the contents of the CORE letter. 

26                  Grounds 3 and 4 complained of a failure to take into account relevant considerations, and a failure to make material findings of fact. 

27                  Because the constitutional issue raised in ground 1 was the same as that to be decided in Shaw, the applicant requested the Federal Magistrate to defer consideration of that issue pending the determination of that case.  However, she requested that the remaining grounds be determined forthwith.  The respondent did not oppose that course, and the Federal Magistrate proceeded to deal with the application on that basis.  As noted above, argument was heard on 12 September 2003.  On 19 September 2003, judgment was given.  Grounds 2, 3 and 4 were all rejected.  On 29 October 2003, formal orders giving effect to the decision were made.

The application to this Court

28                  The applicant seeks leave to appeal from that part of the Federal Magistrate’s decision that rejected ground 2.  The respondent, recognising that the only reason leave is required is that the constitutional issue has not yet been determined, very properly does not oppose the grant of leave.  Accordingly, leave to appeal is granted.  Strictly speaking, the applicant now becomes “the appellant”.  However, for convenience, I shall continue to refer to her, in these reasons for judgment, as the applicant.

29                  The appeal concerns a narrow issue.  The respondent accepts that her predecessor as Minister was obliged to accord the applicant natural justice when considering whether to cancel her visa.  The authorities make that clear: Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 at 86, per Gaudron J and at 96 per McHugh J; and Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 631 per McHugh J. 

30                  In Kioa v West (1985) 159 CLR 550, Brennan J observed at 628-629, that it was a basic principle of the common law that a person whose interests were likely to be affected by an exercise of power must be given an opportunity to deal with adverse material that the repository of the power proposed to take into account in deciding upon its exercise.  That did not mean that the source and nature of all material that came before the decision-maker had to be disclosed.  However, “in the ordinary case… an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.” 

31                  What is required to discharge that duty depends on the circumstances of the particular case.  However, there is authority for the proposition that where a decision-maker has received material that may be adverse to a particular person, the opportunity to comment upon that material should be given “clearly and unequivocally”.  To put the matter another way, there must be “meaningful disclosure”: see Moore v Guardianship and Administration Board [1990] VR 902 at 912; and Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 at 504.

32                  It was common ground before me that the CORE letter was among the material that the respondent took into account in deciding to cancel the applicant’s visa.  The content of that letter was generally adverse to the applicant, and bore upon the risk that she would re-offend in the future.  It was accepted, on behalf of the respondent, that the applicant had not been provided with a copy of that letter, although it had been intended that it should be made available to her.  Moreover, she was not at any time, prior to the making of the decision, made aware of its contents. 

33                  Before the Federal Magistrate, the respondent conceded that there had been a breach of the rules of natural justice.  However, it was claimed that the breach was “technical”, and that the applicant was not entitled to any relief by way of judicial review.  In substance, it was contended that the breach of natural justice that had admittedly occurred had not affected the decision. 

34                  The Federal Magistrate correctly identified the issue that required resolution as being whether, in truth, it could be said that the breach had not “affected” the making of the decision.  He referred to Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 at 122 per McHugh J and to VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 448 at par [17] per Finkelstein J.  In both cases, he noted, it was decided that not every breach of the rules of natural justice affects the making of a decision.  Breach of those rules, therefore, does not automatically invalidate a decision adverse to the party affected by the breach.  Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome. 

35                  His Honour noted that the CORE letter referred to 19 incidents that had occurred during the applicant’s first term of imprisonment.  The author of the letter expressed the opinion that the applicant could be “quite difficult to manage”.  His Honour then considered whether the applicant would have done anything different in responding to the inquiries being conducted by the respondent had she been provided with a copy of the CORE letter, or told of its contents.  He referred to the issues paper, which had been prepared for the respondent prior to his decision to cancel the visa, and to what it said about the applicant’s behaviour in prison.  The Federal Magistrate said at par [22]:

“The Applicant’s statement that she had not used any drugs in prison during her current sentence and all the tests were clean was consistent with the Core report.  Her statement that there was only one incident in her current sentence is consistent with the Core report.  Her statement that in contrast to previous sentences this time she wanted to reform is consistent with the Core report.  She has dealt with all the issues raised by the Core report.”

36                  There is some doubt as to whether the Federal Magistrate’s second and third sentences in this passage are correct.  It is by no means clear that the applicant’s statement that there was “only one incident” in her current sentence was consistent with the CORE letter.  The “incident” to which she referred seems to have related to the affray that occurred in August 2001, and preceded her “current sentence”.  It is possible that there may have been some other “incident” of an unspecified nature that was not recorded in the CORE letter, but that had occurred some time prior to the interview of 28 August 2002.  There is considerable confusion regarding this matter, and it is difficult to see how his Honour concluded that the applicant’s account was “consistent” with the CORE letter.  It is also difficult to see how the applicant’s stated desire to reform can be wholly reconciled with the expression of opinion by the author of that letter that she was “difficult to manage”.

37                  His Honour went on to observe that the information regarding the applicant’s conduct in prison, contained in the CORE letter, was plainly relevant to her risk of recidivism.  He said that she must have been aware of the various incidents described in the letter, and that she could have addressed them during either or both of the two interviews that had been conducted with her. 

38                  His Honour concluded at par [25]:

“Even if the Applicant had been provided with the Core document she would not have acted any differently than she did.  Nor do I consider it would have affected the outcome of her application.  She knew of the material it contained.  She knew that her behaviour in prison was relevant and she dealt with the question of her behaviour.  The result would not have been any different if she had received the report.  The accuracy of the information contained in the report was not contested by the Applicant.  Indeed her interviews confirmed it.  There was no additional information which could have been provided which was not provided or no additional argument or submission that could have [been] put which were not put.”

39                  As with par [22] of his Honour’s reasons, there is some doubt about the correctness of several of the statements contained in this passage.  For example, it is somewhat inaccurate to suggest that the applicant “knew of the material” that the CORE letter contained.  She did not know that it described two of the outstanding incidents as having been “finalised” when in truth, that was not the case.  She did not know that, as at 10 May 2002, she was still regarded as being “difficult to manage”, though she must have known that she would have been so regarded during her first term of imprisonment.  To suggest, therefore, as the Federal Magistrate did, that the accuracy of the information contained in the letter was “not contested” by the applicant is, with respect, hardly a fair assessment.

Conclusion

40                  An appeal to this Court from a decision of a Federal Magistrate is not an appeal in the strict sense.  It is an appeal by way of rehearing: Western Australia v Ward (2002) 191 ALR 1.  See also Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.  This Court is obliged “to give the judgment which in its opinion ought to have been given in the first instance”: Fox v Percy (2003) 197 ALR 201.

41                  The principles that govern the resolution of this appeal are not in doubt.  Once it is clear that there was a breach of natural justice, the applicant is entitled to have the decision under review set aside unless the Court is confident that the breach did not affect the making of the decision. 

42                  In Aala, the various members of the High Court who addressed this issue all made it clear that the threshold for refusing relief in such a case is a substantial one. 

43                  Gleeson CJ approached the matter on the basis that the RRT, having inadvertently misled the applicant as to the material before it, deprived him of an opportunity to answer, by evidence and argument, adverse inferences that might be drawn.  Had he been given an opportunity to correct the misunderstanding, “a different view might have been taken as to his credibility”.  His Honour concluded that, in accordance with the principles enunciated in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, no one could be “sure” that the RRT’s ultimate conclusion would have been the same.

44                  Gaudron and Gummow JJ at 116-117 referred to a different passage in Stead, at 147, saying that it was sufficient that “the denial of natural justice deprived [the prosecutor] of the possibility of a successful outcome”. 

45                  McHugh J at 122 accepted that not every breach of the rules of natural justice affects the making of a decision.  The decision-maker may have entirely upheld the case for the party adversely affected by the breach, or the decision may have turned on an issue different from that which gave rise to the breach of natural justice.  Importantly, as the Federal Magistrate noted, his Honour said:

“Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because ‘[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome’.” (footnote omitted)

46                  Kirby J at 130-131 also referred to Stead.  His Honour drew from that case the following statement of principle:

“Once the applicable breach is proved, the victim of the breach is ordinarily entitled to relief.  It is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness ‘could have made no difference’ to the result, that relief will be withheld.  This Court has emphasised that such an outcome will be a rarity.  It will be ‘no easy task’ to convince a court to adopt it.” (footnotes omitted)

47                  His Honour said that the reason for the stringent principle of the common law was plain.  Departure from the requirements of a fair hearing involves a derogation from the assumptions inherent in the grant to the Tribunal by the Parliament of the decision-making power.  Those who enjoy such power must conform to the conditions of the grant.  If they do not, they have not exercised the power in accordance with law but instead in accordance with some “personal predilection”.

48                  It may be thought that there are strong parallels between the approach taken by the High Court in Aala, and that adopted in relation to the exercise of the proviso in criminal appeals.  See generally Wilde v The Queen (1988) 164 CLR 365. 

49                  The Federal Magistrate concluded that there was nothing that the applicant could usefully have done to respond to the CORE letter, even if its contents had been made known to her.  There was no dispute about the fact that the incidents set out in that letter had all occurred.  They related to her first term of imprisonment.  Plainly, she had been difficult to manage during that term, and clearly the respondent was entitled to have regard to that fact when considering whether she was likely to re-offend. 

50                  It was of course theoretically open to the Federal Magistrate to approach the matter in this way.  However, as indicated earlier, there are several aspects of his Honour’s reasoning that seem to me to be doubtful.  The CORE letter implied that not only had the applicant been “difficult to manage” during her first term of imprisonment, but that she continued to be troublesome right up to, and including, the date on which that letter was written. 

51                  Equally troubling is the fact that two of the incidents attributed to the applicant are described as having been “finalised” when, in truth, that was not the case.  The allegations of “assault prisoner” and “assault officer” were, at the time the letter was written, just that – allegations that were unproved, and not yet even the subject of criminal charges.  Charges were in fact laid in relation to the August 2001 incident in July 2002, approximately two months after the CORE letter was written.  However, those charges had not been determined by the time the respondent decided to cancel the applicant’s visa. 

52                  It is true that the decision record issued by the respondent on 19 December 2002 contained a reference at par [24] to various events that had occurred in August 2001, and to charges that were laid in July 2002.  It noted that a hearing date for the charges had been set for April 2003.  However, in my opinion, it cannot safely be assumed that the respondent would have appreciated that the charges to which reference was made in par [24] of the decision record were the August 2001 matters that had been described as “finalised” in the CORE letter, even assuming that that was so.  It appears that no charges were laid in relation to the “assault prisoner” allegation, relating to 26 May 2001, and it is unclear what, if anything, was meant by the statement in the CORE letter that this matter had been “finalised”.  It must be remembered that the CORE letter plainly implied that the applicant had been found guilty of both these allegations.

53                  If the onus rested upon the applicant to demonstrate that the failure to make the CORE letter available to her had affected the manner in which she had approached the issue of her possible re-offending, and might possibly have influenced the respondent’s decision, I would probably agree with the Federal Magistrate’s conclusion that the breach was of no significance in the context of this case.  However, the High Court has made it clear, in both Stead and Aala, that once a breach of natural justice has been shown to have occurred, the onus rests upon the tribunal, or decision-maker, responsible for the breach, to demonstrate that the breach did not affect the decision. 

54                  If the Minister’s failure to provide the applicant with the adverse material could reasonably have prevented her from correcting what might have been a misapprehension on his part, and thereby caused him to arrive at a different conclusion, the authorities suggest that the decision must be set aside. 

55                  Had the applicant been provided with the CORE letter, or told of its contents, she could have addressed at least some of the adverse inferences that might otherwise have been drawn from it.  For example, she could have pointed out that the “assault prisoner” and “assault officer” allegations had not been “finalised”.  She could have provided material in support of her claim that she was innocent of any wrongdoing in relation to those matters. 

56                  Perhaps of equal importance, had the applicant been aware of the implication that she was still proving to be “difficult to manage”, as at 10 May 2002, she could have addressed that issue directly.  The fact that she alluded to her behaviour in prison during the course of the 28 August 2002 interview does not mean that she suffered no prejudice by being kept in ignorance of what the CORE letter contained.  She could, theoretically at least, have produced evidence or other material to show that she had been a model prisoner during her second term of imprisonment.  It is impossible to tell from the Minister’s reasons for decision what weight he accorded to any of the individual matters that he took into account in deciding to cancel the applicant’s visa.  One cannot conclude, therefore, that providing the applicant with the relevant material could not have led to the Minister being persuaded that his concerns regarding her risk of recidivism were misplaced. 

57                  It was submitted on behalf of the respondent that the applicant had dealt with these issues as well as could be expected by calling in aid, for example, the positive report provided by Caraniche in November 2002.  I am unable to accept that submission.  However positive the report may have been, the possibility that stronger evidence of rehabilitation may have been provided, had the CORE letter been shown to the applicant, cannot be excluded. 

58                  In John v Rees [1970] Ch 345, Megarry J said at 402, in terms that I would respectfully adopt:

“[a]s everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”

59                  It is for these reasons that I have concluded that this appeal must be allowed.  It was agreed by the parties that in the event that I came to that conclusion, the appropriate order would simply be to set aside the decision of the respondent to cancel the applicant’s visa.  There will be an order to that effect.  There is no reason why costs should not follow the event.  Accordingly, the respondent must pay the applicant’s costs of the proceeding before the Federal Magistrates Court, as well as the costs of this appeal. 

Associate:

Dated:              12 November 2003