FEDERAL COURT OF AUSTRALIA

Picard v Minister for Immigration and Border Protection [2015] FCA 1430

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1    This is an application for judicial review of a decision of the respondent Minister not to revoke a decision of his delegate to cancel Mr Colin Picard’s Class TY Subclass 444 Special Category (Temporary) visa. The Minister’s decision was made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”).

2    The Minister’s delegate had determined to cancel Mr Picard’s visa under s 501(3A) of the Act. He did so because he was satisfied that Mr Picard did not pass the character test, prescribed under the Act, and because Mr Picard was serving a sentence of imprisonment, on a full time basis, for the offence of trafficking in a controlled substance.

3    On 31 July 2013 Mr Picard had been convicted by the Supreme Court of Tasmania of trafficking the drug “Ice”. He had been sentenced to a three year term of imprisonment.

4    It was not disputed that Mr Picard did not pass the character test.

5    The issue for the Minister, under s 501CA(4)(b)(ii) of the Act, was whether he was satisfied that, notwithstanding Mr Picard’s failure to pass the character test, other reasons existed which warranted the revocation of the delegate’s decision to cancel the visa.

6    The Department prepared a bundle of documents which it considered contained information which was relevant to the Minister’s decision. These documents were provided to Mr Picard. He was invited to comment on them and to make any submissions in support of his application to the Minister to revoke the cancellation decision.

7    Having considered all of the material submitted by his Department and submissions and supporting documents forwarded to him by Mr Picard, the Minister determined not to revoke the cancellation decision. He provided detailed reasons for so determining. In the course of those reasons he referred to Mr Picard’s “lengthy membership of an outlaw motor cycle gang, and his status as State President for ten years [of that gang].” The “gang” concerned was identified by the Minister as the Rebels Motor Cycle Club.

8    Mr Picard’s amended application sought to impugn the Minister’s decision on two grounds. The first of those grounds was abandoned prior to the hearing. The only ground that was pressed was that Mr Picard had been denied procedural fairness by the Minister. He complained that it had not been put to him that it was the Australian Crime Commission’s opinion that the Rebels Motor Cycle Club had “links to organised crime in Australia” or that a reason for the Minister refusing to revoke the delegate’s decision was the possibility that the gang-member “mates” with whom Mr Picard proposed to ride upon his release from gaol had links to organised crime.

9    For the reasons which follow I have concluded that no denial of natural justice occurred.

THE LEGISLATION

10    Section 501(3A) of the Act provides that the Minister must cancel a visa if satisfied that the visa holder does not pass the character test and the person concerned is serving a sentence of imprisonment for an offence against a law of the Commonwealth or a State. A person does not pass the character test if he or she has a substantial criminal record: see s 501(6)(a). A person has such a record if he or she has been sentenced to a term of imprisonment of 12 months or more: see s 501(7)(c).

11    By s 501CA(3) the Minister is required, as soon as practicable after any decision is made under s 501(3A), to:

“(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.”

12    The term “relevant information” is defined in s 501CA(2) as follows:

“For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.”

13    Section 501CA(4) provides that the Minister may revoke the cancellation decision if the visa holder makes representations in response to an invitation extended under s 501CA(3) and the Minister is satisfied either that the person passes the character test or “that there is another reason why the original decision should be revoked.”

14    If the Minister revokes the original decision to cancel the visa, the original decision is taken not to have been made: see s 501CA(5).

VISA CANCELLATION AND APPLICATION FOR REVOCATION

15    On 7 January 2015 a delegate of the Minister cancelled Mr Picard’s visa under s 501(3A) of the Act. Mr Picard was so advised by registered letter dated 8 January 2015.

16    The letter advised Mr Picard of his right to make representations pursuant to s 501CA(4). A copy of the section was provided to him. Mr Picard was advised that:

“How to request revocation of the original decision to cancel your visa

If you decide to request revocation you can write to us with the reasons why you think the original decision should be revoked using the attached Revocation Request Form. Direction 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction) identifies issues that are relevant to the revocation consideration. You should address each paragraph in PART C of the Direction that is relevant to your circumstances. A copy of the Direction is enclosed for your information.

If the decision-maker is a delegate of the Minister, the delegate is bound by the Direction. If the Minister makes a revocation decision personally, he or she is not required to give consideration to the Direction, though it provides a broad indication of the types of issues that he or she may take into account in determining whether or not to revoke the original decision.

You can provide any other information that you feel the decision-maker should take into account, including letters of support from your family, friends, employers or others.”

17    Direction 65 was a Ministerial Direction given under s 499 of the Act. It identified a range of matters which, if relevant in a particular case, were to be brought into account in determining how the discretion, provided for in s 501CA(4), should be exercised. Delegates exercising the Minister’s power under s 501CA(4) were required to comply with the Direction but it did not bind the Minister himself.

18    The Direction identified a number of primary considerations which were to be taken into account in dealing with applications made under s 501CA(4). They included the protection of the Australian community, the nature and seriousness of the criminal conduct engaged in by the visa holder and the risk to the Australian community should the visa holder commit further offences or engage in other serious misconduct.

19    Mr Picard responded to the invitation to apply for revocation of the cancellation decision. He did so in writing on 27 January 2015. He attached a number of character references.

20    In his written submissions he addressed the relevant issues identified in the Ministerial Direction. In doing so he submitted that he did “not constitute an unacceptable risk to the Australian community in terms of reoffending.”

21    By letter dated 3 March 2015 the Department acknowledged receipt of Mr Picard’s submissions. It advised him that it had obtained some additional information which was potentially relevant to his application. It identified a series of documents including a Prison Conduct Report from the Tasmanian Prison Service dated 7 January 2015. Copies of all these documents (including the Prison Conduct Report) were sent to Mr Picard under cover of the letter. He was “invited to comment on this information and any other matter you want the decision-maker to take into account.”

22    Shortly afterwards the Department again wrote to Mr Picard. By letter dated 20 March 2015, Mr Picard was advised that:

“In addition, I refer to the Prison Conduct Report from the Tasmania Prison Service, dated 7 January 2015, a copy of which was sent to you by letter dated 3 March 2015. Under a heading of Adverse Alerts, this report states: “Mr Picard is the former State President (Tasmania) of the Rebels motorcycle club and has maintained contact with the club through telephone calls and visits”. The department invites your comment on this information and invites you to provide details of any past and current association, and your intended future association, with the motorcycle club and its members.”

23    Mr Picard responded by way of written submissions dated 31 March 2015. He acknowledged that he had been a member of the Rebels Motor Cycle Club for 27 years. He had become State President of the club in Tasmania, holding that position for 10 years. He had stepped down from that position when he was charged with the trafficking offence. He had become “a retired member”. As a result he didn’t go to any meetings and he didn’t “have any say in club business”. He said that he didn’t have “a lot” of friends outside the club and that he could “still associate with my mates in the club”. He could “ride around with them and with my mates in other states.” He said that the club “doesn’t make any member sell drugs. Club money is not made that way. It is something members do themselves.”

24    The Department then prepared an issues paper for the Minister. The paper contained the following paragraph:

“It is open to you to find, as declared by Mr PICARD in his submissions dated 31 March 2015, that he has been a member of the Rebels Motor Cycle Club for 27 years and he held the post of State President, in Launceston, for 10 years before resigning from the position and becoming a retired member of the club in 2013. Mr PICARD has confirmed that he maintains an association with club members and states that he “can ride around with them and with my mates in other states” (Attachment T). The Rebels Motor Cycle Club is classified by the Australian Crime Commission as an outlaw motor cycle gang (OMCG), with links to organised crime in Australia. Whilst it is open for you to conclude that Mr PICARD is no longer an active member of the Rebels Motor Cycle Club, his continued association with club members may cause you to hold some reservations about his progress to rehabilitation, despite his stated commitment and his age.”

25    Attachments to the paper included each submission which had been made by Mr Picard in relation to his application for revocation of the cancellation decision.

26    Having considered the issues paper the Minister determined, on 18 June 2015, not to revoke the cancellation decision. On the same day he published a statement of reasons for his decision. He said that, in making his decision, he had assessed all of the information contained in the paper and the attachments to it. He dealt with each of the reasons, advanced by Mr Picard, in support of his application. Under the heading ‘Risk to the Australian community’ the Minister said that:

“42.    Mr PICARD remains in criminal custody and I find that his current ability to refrain from re-offending has not been tested in the community. I also consider that his lengthy membership of an outlaw motor cycle gang, and his status as State President for ten years, casts doubt on his prospects for avoiding further criminal behaviour, notwithstanding his long, largely conviction free residence in Australia. Mr PICARD committed his offending to make money to fund his retirement. Although Mr PICARD’s bankruptcy has discharged his debts, the sentencing judge’s remarks confirm that he remains without significant assets and without the funds he planned on retiring with. Mr PICARD expressed his intention to resume part-time employment in Tasmania. However, he has since advised of his intention to relocate to Queensland, to be with his family members in Australia. While Mr PICARD has stated his intention and his commitment to lead a law-abiding lifestyle, I am concerned that the financial difficulties which motivated Mr PICARD’s serious drug offending may arise in future.

43.    I note and accept that Mr PICARD is a retired member of the Rebels Motor Cycle Club, an outlaw motor cycle gang with links to organised crime in Australia. I also note Mr PICARD’s stated intentions of continuing to ride with his Rebels associates in Tasmania and other states. While I acknowledge that there is no information to indicate that Mr PICARD committed his drug offences due to his membership of the Rebels Motor Cycle Club, I nevertheless have some reservations about ongoing progress to rehabilitation, in circumstances of his stated intention to continue to ride with an outlaw motor cycle gang.

44.    Having regard to all the information before the department, I have formed the view that Mr PICARD poses a low risk of re-offending. That said, in light of the judge’s comments regarding the scale of Mr PICARD’s drug trafficking operation, I consider that further offending of a similar nature by Mr PICARD could result in great harm to the community in terms of the impact of illicit drugs, especially methylamphetamine, on both individual members of the community, and also the community at large.”

27    The Minister then summarised his reasons for refusing to revoke the cancellation decision under the heading ‘CONCLUSION’. He acknowledged that there were a number of factors which supported the revocation of the visa cancellation. He then continued:

“50.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the serious nature of the crime committed by Mr PICARD, that of Trafficking in a Controlled Substance. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

51.    Despite the low risk of re-offending posed by Mr PICARD, I cannot rule out the possibility of further offending by him. I consider that the Australian community could be exposed to great harm should Mr PICKARD (sic) re-offend in a similar fashion.

52.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr PICARD represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his grandchildren and other, minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds – employment, volunteer/charity and familial – to Australia, and the hardship Mr PICARD, his family and social networks will endure in the event the original decision is not revoked.”

THE APPLICANT’S CASE

28    Mr Picard complained that he should have been, but was not, alerted by the Department to the possibility that two matters, to which the Minister had regard, might be taken into account to his detriment when his application was determined. The first of these matters was that the Rebels Motor Cycle Club had, according to the Australian Crime Commission, “links to organised crime in Australia”. The Minister had been so advised in the issues paper which had been sent to him by the Department.

29    The other matter was “that the ‘mates’ with whom he intended to ride [upon his release from prison] had links to organised crime.” This matter, he contended, also arose from the advice provided to the Minister in the issues paper.

30    The failure to put these matters directly to Mr Picard and to give him the opportunity of commenting on them before the Minister made his decision, he submitted, gave rise to a denial of natural justice.

31    There can be no doubt that the Minister, as an administrative decision-maker, was bound to accord procedural fairness to Mr Picard when dealing with Mr Picard’s application under s 501CA(4) of the Act. The question for determination, as both parties acknowledged, was “what is required in order to ensure that the decision [was] made fairly in the circumstances having regard to the legal framework within which the decision [was] to be made”: see Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [30] (Kiefel, Bell and Keane JJ).

32    Mr Picard contended that both matters had a material bearing on the Minister’s decision not to revoke the cancellation of his (Mr Picard’s) visa.

33    Mr Picard did not suggest any particular response which he might have been minded to make had he been advised that the Australian Crime Commission considered that the Rebels Motor Cycle Club had links to organised crime. He did, however, suggest that, had he been told that the “mates” with whom he had intended to ride had links to organised crime he would have been able to have provided the Minister with additional information relating to what was involved in “riding” with mates, the names of the “mates” with whom he proposed to associate and whether they had any links with organised crime. He further contended that, when he was asked to respond to the Prison Conduct Report, it was not obvious to him that anything in it relating to riding with his mates could have had any impact on the Minister’s assessment of his prospects for rehabilitation and of not re-offending.

34    Mr Picard placed particular reliance on the statement of principle propounded by a Full Court of this Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2 that:

“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”

This statement has subsequently been endorsed by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 219. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 the High Court expressed agreement with the Full Court’s additional observation (at 590-1) that:

“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.”

35    Mr Picard also referred to statements of principle to similar effect in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 119-120 and Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284 at 295-6 (Keely J).

36    Mr Picard submitted that the information which, he said, had not been provided to him constituted adverse conclusions which were not obviously open on the material made available to him and was material adverse to his interests. As a result the Minister was obliged to advise him of this material and to afford him the opportunity of commenting on it.

CONSIDERATION

37    The purpose served by the imposition, on decision-makers, of an obligation to accord procedural fairness to those who may be affected by their decisions is the avoidance of “practical injustice”: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 (Gleeson CJ).

38    The guiding principle is one of fairness: see VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 566 (Allsop J, with whom Gyles and Conti JJ agreed on this point). Judgments about practical justice and fairness fall to be made in the circumstances of individual cases. As Weinberg J said in Applicants M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309 at [54]:

“Whether or not there has been a denial of procedural fairness in any given case is largely dependent upon the particular facts of that case. Where the decision-maker has relied upon adverse information, without providing any opportunity to comment upon it, the question whether the decision is vitiated will depend upon a range of factors. These include the importance of the material to the ultimate decision, as well as the nature of that material. Some information is purely factual and entirely incontrovertible. There may simply be no answer to it. Other information may involve a combination of fact and opinion, and may be contentious. In relation to information of that kind, the denial of the opportunity to comment upon it may give rise to procedural unfairness. Moreover, some matters are so blindingly obvious as not to require any comment or submission. In such cases, the fact that there has been no opportunity to comment will be of little or no significance.”

39    The content of the obligation in any given case is to be determined having regard to the statutory context in which the relevant decision falls to be made: see SZBEL at 161, 162.

40    Section 501(3A) of the Act requires the Minister to cancel a visa if he (or his delegate) is satisfied that the holder does not pass the character test and is serving a sentence of imprisonment. As a result the reasons for a cancellation decision can be (as they were in the present case) very shortly stated. There is no need for the decision-maker to have regard to any discretionary considerations. In this context s 501CA is an ameliorative provision: it requires the Minister to invite representations from the person whose visa has been cancelled about the revocation of the cancellation decision and confers on the Minister a discretion to revoke the cancellation. Under s 501CA(3) the Minister is required to provide a person whose visa has been cancelled under s 501(3A) with written notice of the cancellation decision and particulars of “the relevant information” relating to the making of that decision. Such “relevant information” is defined, in s 501CA(2), to be information which the Minister considers “would be the reason, or part of the reason for making the [cancellation] decision” and which “is specifically about the [holder of the visa] or another person and is not just about a class of persons of which the person or other person is a member.” The obligation thus relates to information bearing on the decision to cancel, not information on which the Minister might rely in deciding whether or not to revoke the cancellation decision. This is a somewhat strange provision given that the cancellation will have occurred because the Minister (or his delegate) will have been satisfied of two objectively ascertainable facts. It may be that the draftsman intended that the Minister should advise the visa holder about information on which he might be minded to rely in deciding to reject an application for revocation. If that was the intention it is not reflected in the language of s 501CA(2). The information must be person-specific rather than general information relating to a class of person of which the visa holder is a member.

41    The content of the obligation, in cases such as the present, will also be influenced by the provisions of Ministerial Direction No. 65, made under s 499 of the Act. The first invitation to Mr Picard to make an application and submissions to the Minister under s 501CA(4) expressly directed Mr Picard’s attention to the contents of that directive. As already noted, the directive identified a series of broad considerations which the Minister could, but was not obliged to, take into account when reaching his decision.

42    It does not follow that, in all cases, the Minister will accord procedural fairness simply by complying with the requirements of s 501CA(3). Once the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made. Those representations will be made in the knowledge that the Minister is likely to be guided by some or all of the considerations referred to in Direction 65. The applicant will, therefore, be in a position to provide the Minister with information relating to those considerations, including information which might seek to anticipate and allay concerns which the Minister might harbour relating to the applicant’s circumstances and conduct. If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant’s case the Minister is bound to consider it. It will be a matter for the Minister to weigh such matters against other relevant considerations, including those mentioned in Direction 65. It will not, normally, be necessary for the Minister to afford a further opportunity to the applicant to deal with particular issues. If, however, the Minister becomes aware of information which is personal to the applicant and which might lead the Minister to disbelieve some critical information supplied by the applicant, it may be necessary for the Minister to expose that information to the applicant and give the applicant the opportunity of responding to it before making a decision.

43    The two matters which Mr Picard contends should have been, but were not, put to him were matters which, he said, had been drawn to the Minister’s attention in the issues paper. In that paper the Minister was expressly advised that the Australian Crime Commission classified the Rebels Motor Cycle Club as an outlaw motorcycle gang with links to organised crime in Australia. What is less clear is whether reference to the second matter can be traced to the same source. There was no assertion in the issues paper that the other club members with whom Mr Picard intended to associate upon release from prison had links to organised crime save to the extent that that might be inferred from their membership of the club. This part of the advice to the Minister was followed by the observation that such continued association with club members might cause the Minister “to hold some reservations about [Mr Picard’s] progress to rehabilitation …” It was not necessary for this comment to be drawn to Mr Picard’s attention: see Palme at 219. The question, for present purposes, is whether there was any obligation, on the Minister, to advise Mr Picard of the Australian Crime Commission’s assessment of the Rebels Motor Cycle Club.

44    In my view there was not. That assessment, as the Minister demonstrated, was notorious and well publicised in the public domain. Mr Picard’s future association with other members of the club was but one of many matters which might touch on the broad issues of his rehabilitation and risk of recidivism. These issues had been drawn to his attention and his comments on them invited. His attention was also drawn, even more clearly, in the 20 March 2015 letter, to the Prison Conduct Report and he was asked to comment on a range of implications arising from it, including any “intended future association” between him, the club and its members. Mr Picard well understood, as is evident from his response on 31 March 2015, that any future association with club members might be thought, by the Minister, to carry the risk of future offending on his part. He sought to assure the Minister that any such ongoing association would not have any adverse effect on his future conduct.

45    The Minister took this and other information supplied by Mr Picard into account in reaching his decision.

46    As is plain from the Minister’s reasons, the matters raised in the issues paper concerning the classification of the Rebels Motor Cycle Club and the link of members of the club to organised crime did not weigh heavily on the Minister’s decision. As appears from paragraphs [42], [44] and [50] of his reasons, the considerations which weighed most heavily with him were Mr Picard’s lengthy membership of the club, his status as its Tasmanian president for 10 years, the seriousness of his crime, the reasons he committed it, his ongoing need for funds and the risk that any further drug trafficking by Mr Picard could result in great harm to the community. On the other hand, the Minister, at [43], went no further than saying that he had “some reservations about [Mr Picard’s] ongoing progress to rehabilitation, in circumstances of his stated intention to continue to ride with an outlaw motor cycle gang”. At [44] he assessed Mr Picard’s risk of reoffending to be “low”.

47    In these circumstances it cannot, in my view, be said, in any practical sense, that Mr Picard was denied procedural fairness by the Minister. The Australian Crime Commission’s views about the Rebels Motor Cycle Club are well known. The fact that the Commission holds such views is “entirely incontrovertible.” Mr Picard himself told the Minister that he intended to continue riding with members of the Club. He did so well knowing that his response might have an impact on the Minister’s assessment of the possibility of him reoffending and the consequences for the community should any such reoffending occur. It was for the Minister to form a judgment about the risks (if any) of such associations when deciding how to exercise his discretion under s 501CA(4) of the Act. This he did. He was not obliged to expose his assessment to Mr Picard before reaching his decision. His assessment did not, in the event, weigh heavily against Mr Picard’s application.

48    No denial of procedural fairness occurred.

DISPOSITION

49    The application must be dismissed with costs.

Associate:

Dated:    16 December 2015