FEDERAL COURT OF AUSTRALIA

AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the respondent not to revoke the decision to cancel the applicant's visa made on 9 July 2015 be quashed.

2.    The respondent determine the applicant's application for revocation of the decision to cancel his visa pursuant to s 501CA of the Migration Act 1958 (Cth) according to law.

3.    The respondent is to pay the applicant's costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    On 9 January 2015, the applicant's Special Category (Temporary) (Class TY) visa (the Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) (the cancellation decision). The applicant seeks judicial review of a decision of the respondent, the Assistant Minister for Immigration and Border Protection (Minister), made on 9 July 2015 pursuant to s 501CA of the Act not to revoke the cancellation decision (the non-revocation decision).

2    The matter was instituted in the Federal Circuit Court but transferred to this Court by orders made by the Federal Circuit Court.

3    By the amended originating application filed on 15 February 2016, the applicant contends that the Minister fell into jurisdictional error in deciding not to revoke the cancellation decision in the following respects:

(1)    (Ground 1) in refusing to determine whether non-refoulement obligations are owed to the applicant;

(2)     (Ground 2) in that material relevant to the decision provided by the applicant to a Serco officer at the Villawood Immigration Detention Centre (Villawood IDC) for the purposes of his application was not considered by the Minister, with the consequence that:

(a)    the Applicant was denied procedural fairness, in that material submitted was not considered; and/or

(b)    if the material was not passed on to the Minister for consideration, the decision was affected by the failure of the Serco officer to comply with an imperative statutory duty, namely, the duty imposed by s 256 of the Act, or otherwise imposed by law.

4    For the reasons set out below, I consider that the decision of the Minister is tainted by jurisdictional error and invalid on ground 2 and therefore the application for judicial review must be allowed. In the circumstances, it is unnecessary to determine the first ground.

2.    PROCEDURAL ASPECTS OF THE APPLICATION

5    This matter was first listed for hearing on 30 November 2015. However, the hearing was adjourned when the applicant (then unrepresented) advised the Court that his spouse was dying and he wished to get the case over and done with so that he could return to his wife's side. After questioning the applicant, I formed the view that I was not confident that he was in a position to make decisions in his best interests and determined that the hearing should be adjourned.

6    The hearing resumed on 17 December 2015. I allowed the applicant to be assisted at the hearing by a McKenzie Friend to give him support. In the interim, there had been other distressing personal events in the applicant's life, including that his wife had sadly passed away. At the hearing, the applicant advised the Court for the first time that he wished to raise a procedural fairness point on the ground that he was suffering from a disability in terms of his reading and comprehension capabilities. These were said to impact on his capacity to respond to the initial cancellation of his visa. The applicant sought to rely in this regard upon a document (which was marked for identification) in support of that claim. The new issue was, however, raised in circumstances where the applicant had failed to comply with the orders of Wigney J made on 15 September 2015 that he was to file and serve any amended application giving complete particulars of all grounds of review and any affidavit evidence by 13 October 2015. I adjourned the case again, with the matter tentatively set down again for hearing on 7 March 2016, in order to allow a request pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) to be made for pro bono assistance to be provided to the applicant to advise him on the procedural fairness issue, and to permit him an opportunity to raise that ground, if he should so decide. Further to that end, orders were made permitting the applicant to file and serve an amended originating application, and a timetable was set for the parties to file and serve submissions and evidence on the procedural fairness ground. The orders noted that if the further documents from the applicant were not filed and served in compliance with the orders, judgment would be reserved and the matter would not be listed for rehearing. In the circumstances, I accepted the Minister's submissions that he should be awarded his costs thrown away by reason of the adjournment.

7    On 15 February 2016, the applicant filed the amended application for review with the generous assistance of pro bono counsel. The grounds raised in the amended application go beyond the leave granted on 17 December 2015 (as the applicant acknowledged in his written submissions at [1]), and the applicant seeks leave to rely upon the proposed grounds. The Minister very fairly did not oppose the grant of that leave.

8    Finally, I note that after judgment was reserved, the Court was advised that the applicant had returned to New Zealand but continued to press his application.

3.    STATUTORY FRAMEWORK

9    The object of the Act is "to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens" (s 4(1)). This object is advanced under the Act by making provision for the grant of visas permitting non-citizens to enter or remain in Australia. As s 4(2) makes express, the Parliament intends that the Act be the sole source of the right of non-citizens to enter or remain in Australia.

10    A non-citizen in the migration zone is a lawful non-citizen if she or he holds a visa that is in effect, in the absence of which the non-citizen is an unlawful non-citizen (ss 13(1) and 14(1) of the Act). Upon cancellation therefore of his visa, the applicant became an unlawful non-citizen in respect of whom an obligation arose under s 189 on officers to detain him: see further at [33] below.

11    As to the provision pursuant to which the applicant's visa was cancelled, s 501(3A) of the Act relevantly provides that:

The Minister must cancel a visa that has been granted to a person if:

(a)     the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)     …; and

(b)     the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

12    Pursuant to s 501(5), the rules of natural justice do not apply to a decision under subsection 501(3A).

13    Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record as defined by subsection (7). Section 501(7)(c) in turn provides that a person has a "substantial criminal record" if the person has, relevantly, been sentenced to a term of imprisonment of 12 months or more.

14    Where the Minister made the original cancellation decision under s 501(3A) personally, s 501CA provides that the Minister must give the person a written notice containing certain information and that the Minister has a discretion to revoke the decision after affording the person an opportunity to be heard on the revocation decision. Specifically, s 501CA relevantly provides that:

(2)      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.

(3)     As soon as practicable after making the original decision, the Minister must:

(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.

(4)     The Minister may revoke the original decision if:

(a)     the person makes representations in accordance with the invitation; and

(b)     the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

(5)     If the Minister revokes the original decision, the original decision is taken not to have been made.

15    Sections 501(3A) and 501CA were inserted by items 8 and 18 respectively of Schedule 1 to the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) with effect on and from 11 December 2014, being a date after the applicant had been sentenced but while he was still serving his sentence in prison.  The amendments nonetheless applied to him by virtue of item 32(1) of Schedule 1 to that Act, which provides that the amendments made (relevantly) by items 8 and 18 "apply to a decision made on or after the commencement of this item to cancel a visa under subsection 501(3A) of the Migration Act 1958, whether the sentence of imprisonment on the basis of which the visa is cancelled was imposed before, on or after the commencement of this item." 

4.    BACKGROUND

4.1    The applicant's status prior to cancellation of the visa

16    The applicant is a citizen of New Zealand who first arrived in Australia in December 1994 on a Class TY Subclass 444 Special Category (Temporary) visa. He has resided in Australia since 1995. His most recent Class TY Subclass 444 Special Category (Temporary) visa was granted on 26 September 2003 and allowed him to remain in Australia as long as he continued to be a New Zealand citizen.

4.2    The decision to cancel the applicant's visa on 9 January 2015

17    On 12 February 2014, the applicant was convicted and sentenced to 18 months imprisonment on charges of Supplying a Prohibited Drug Less than or Equal to Small Quantity and Driving a Motor Vehicle during a Disqualification Period.

18    On 9 January 2015, the Department of Immigration and Border Protection (Department) wrote to advise the applicant that his visa had been cancelled under the mandatory cancellation power in section 501(3A) of the Act. As a result of that cancellation decision, the applicant became an unlawful noncitizen. He was released from criminal custody on 30 January 2015 and on the same day was taken into immigration detention where he resided at the time of hearing.

19    In the letter the Department explained that s 501(3A) of the Act is a mandatory cancellation power and further stated that:

Based on the evidence before the Department of Immigration and Border Protection, the decision-maker is satisfied that you do not pass the character test on the following ground/grounds:

Paragraph 501(6)(a) the person has a substantial criminal record (as defined by subsection 501(7)). Under paragraph 501(7)(c) the person has been sentenced to a term of imprisonment of 12 months or more. On 12 February 2014 you were convicted of Supply Prohibited Drug and Drive Motor Vehicle during Disqualification Period and sentenced to 18 months imprisonment.

20    The letter advised that the applicant could request that the Minister revoke the mandatory cancellation decision and, if he did so request, that he should write to the Department with the reasons why he considered that the cancellation decision should be revoked using the attached Revocation Request Form within 28 days after deemed receipt (i.e. 7 days after the date of the letter). The letter also explained that "[y]ou 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." The letter further advised that if the Minister made the revocation decision personally, the Minister is not required to give consideration to Direction 65 – Visa refusal in cancellation under s 501 and revocation of a mandatory cancellation of the Visa under s 501C (Direction 65), in contrast to the position where the decision-maker is a delegate of the Minister: see s 499 of the Act. However, even where the Minister personally makes the decision, the letter stated that Direction 65 provided a broad indication of the types of issues that the Minister may take into account in determining whether or not to revoke the original decision. In this regard, I note that the Assistant Minister is the "Minister" for the purposes of the Act: see Maxwell v Minister for Immigration and Border Protection [2016] FCA 47 at [18]-[21].

4.3    The request for revocation of the cancellation decision and steps taken prior to the revocation decision

21    By the completed Request for Revocation form and Personal Details Form both dated 20 January 2015, the applicant requested revocation of the cancellation decision and made representations. These were received by the Department on 30 January 2015 and the issues paper prepared later by the Department (see below at [25]) with respect to the non-revocation decision advised that the documents were made in the prescribed manner and within the prescribed timeframe. In requesting revocation, the applicant said that his wife had stage 3 cancer for which she had been diagnosed while he was in prison, he was her full-time carer, and she needed him to take her to her chemotherapy treatment, to take care of the bills and to care for their dog. He also stated that he had one child under 18 from a previous relationship who was born in 1999 and that he saw her every second week when he was out of prison. He identified his concern if he were returned to New Zealand as "the [gang] want my life for me leaving the gang". A letter dated 23 February 2015 confirmed receipt by the Department of the applicant's representations and advised that they would be considered in due course.

22    On 25 February 2015, the applicant provided further information to the Department, comprising a Detainee Request Form dated 4 February 2015 and a report of Dr Z Athour, Plus 1 Medical Centre, dated 30 January 2015 confirming that the applicant's wife had terminal cancer, and urging that the applicant be released from detention as she had no-one else to take care of her and needed a full time carer to be able to cope with the stress and effect of her medical treatment.

23    By a letter dated 26 February 2015, the Department advised that it held other information which may be taken into account when making the revocation decision. The letter attached further information including information relating to the applicant's police record in Australia and New Zealand and the sentencing remarks for the convictions to which I have referred, as well as transcripts of other criminal proceedings involving the applicant. The letter also invited the applicant to comment on this information and any other matter he wanted the decision-maker to take into consideration, and provided an address to send any correspondence. The letter stated that any response should be received by the Department no later than 14 days from the date of deemed receipt.

24    On 21 April 2015, Anthea Hammond, who is an officer with the Department, interviewed the applicant by telephone: see further below at [40]-[42]. Detailed notes of the interview (but not a transcript) were signed by the applicant apparently on 22 April 2015.

4.4    The Department's submission to the Minister dated 3 July 2015

25    On 3 July 2015, the Department provided the Minister with a detailed submission for decision which attached an issues paper and draft statement of reasons. The issues paper, in turn, attached various documents including the applicant's movement records, the cancellation decision, the revocation request dated 20 January 2015 and personal details form of the same date, Direction 65, the detainee request form and enclosed letter from Dr Athour referred to at [22] above, the information referred to at [23] above concerning the applicant's criminal history, and earlier correspondence from the Department to the applicant concerning his visa status.

4.5    The non-revocation decision

26    On 9 July 2015, the Minister decided to consider the case personally and decided not to revoke the decision to cancel the applicant's visa. The non-revocation outcome selected by the Minister provided:

[The applicant] has made representations about revocation of the visa cancellation decision in accordance with the invitation and I am not satisfied that [the applicant] passes the character test (as defined by section 501). Nor am I satisfied that there is another reason why the original decision should be revoked. Accordingly, I have decided not to revoke the decision to cancel [the applicant's visa]. My reasons for this decision are set out in the attached Statement of Reasons.

27    In so finding, the Minister found first that the applicant made representations regarding revocation of the mandatory visa cancellation decision in accordance with the invitation as required by s 501CA(4)(a) of the Act (at [3]).

28    Secondly, the Minister found that the applicant did not dispute the information in the National Police Certificate dated 23 July 2014 regarding his criminal convictions and sentences (at [6]-[7]). Accordingly the Minister was not satisfied that the applicant passed the character test with the result that s 501CA(4)(b)(i) of the Act was not met.

29    Finally, the Minister considered whether there was another reason why the cancellation decision should be revoked as required by s 501CA(4)(b)(ii) of the Act (quoted at [14] above). In this regard, the Minister set out in her reasons her consideration of a number of factors, namely the best interests of minor children, international non-refoulement obligations, the strength, nature and duration of the applicant's ties to Australia, the extent of impediments he might face if removed to New Zealand, and protection of the Australian community having regard to the nature and seriousness of the applicant's criminal offending and the risk of harm to the Australian community. In her conclusion, the Minister weighed up the competing factors as follows:

51.    In considering whether, in light of [the applicant]'s representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I gave primary consideration to the best interests of [the applicant]'s minor child and grandchild and have found that their best interests would be best served by the revocation of the mandatory visa cancellation decision.

52.    In addition, I have considered the length of time [the applicant] has made a partially positive contribution to the Australian community and the consequences of my decision for his other family members.

53.    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 crimes committed by [the applicant], including repeatedly driving while disqualified, violent offending and offending against police officers. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

54.    Having regard to [the applicant]'s conduct, including violent offences and his involvement in a police pursuit, I also find that the Australian community could be exposed to great harm should [the applicant] re-offend in a similar fashion. Having found that [the applicant] poses an ongoing likelihood of re-offending, I could not rule out the possibility of further offending by [the applicant].

55.    I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa, even applying a higher tolerance of risk of re-offending by [the applicant] than I otherwise would, because he has lived in Australia for nearly two decades and has strong ties to Australia.

56.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I conclude that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his minor child and other, minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence, any international non refoulement obligations, his social, familial and employment links to Australia, and the hardship [the applicant's wife], [the applicant] and his family and social networks will endure in the event the original decision is not revoked.

57.    Having given full consideration to all of these matters, I am not satisfied, for the purposes s501CA(4)(b)(ii), that there is another reason why the original decision to cancel [the applicant]'s visa should be revoked. Accordingly, I have decided not to revoke the original decision to cancel [the applicant]'s Class TY Subclass 444 Special Category (Temporary) visa.

5.    EVIDENCE ON THE APPLICATION FOR JUDICIAL REVIEW

30    The applicant relied on two affidavits sworn by him on 12 February 2016 and 7 March 2016 respectively, save for paragraph [12] of the second affidavit in respect of which an objection on hearsay grounds was upheld. The applicant was cross-examined.

31    The respondent relied on the affidavits of Ms Anthea Hammond affirmed on 25 February 2016, Mr Hilario Bagan Lara affirmed on 25 February 2016, and two affidavits of Ms Sylvia Viola Zammit affirmed on 25 February 2016 and 26 February 2016 together with the confidential exhibits annexed thereto. Ms Hammond is a case officer employed by the Department and was the case officer responsible for the applicant's application for revocation of the decision to cancel his visa. Mr Lara is a Facility Operations Manager at the Villawood IDC. Ms Zammit is also a case manager with the Department. Ms Zammit and Mr Lara were cross-examined on their evidence.

6.    ALLEGED BREACH OF PROCEDURAL FAIRNESS OR OF THE OBLIGATION TO SEND CORRESPONDENCE TO THE MINISTER

6.1    The central issue

32    The applicant gave evidence in support of his allegation that he had been denied procedural fairness. While there are important aspects of the applicant's evidence which are not challenged (as I explain below), the Minister submitted that the applicant's evidence that he gave the documents in question to a Serco officer at the Villawood IDC to send to the Department ought not to be believed.

33    The applicant submits that there was an obligation upon the Serco officers to send the further documents to the Department. At the time that he gave the documents to the officer in question, the applicant was detained pursuant to the obligation under s 189 upon an officer by reason of his status as an unlawful non-citizen. That provision both requires that an officer detain an unlawful non-citizen and authorises that detention as a "specific control mechanism": Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 at 544 [200] (French J). In this regard, officers include officers of the Department, persons authorised in writing to be officers by the Minister, and persons included in a class of persons authorised in writing to be officers by the Minister (s 5(1)). Immigration detention ceased upon the applicant returning to New Zealand after judgment was reserved. In this regard, "immigration detention" is defined in s 5(1) of the Act to include being held by or on behalf of an officer in a detention centre established under the Act. Section 273 of the Act confers power on the Minister to establish and maintain detention centres. It is not in dispute that Villawood IDC where the applicant was detained following the cancellation decision prior to his departure to New Zealand is a detention centre for the purposes of the Act; nor that the applicant was detained by officers pursuant to the obligation in s 189 at the time that he allegedly gave the further documents to a Serco officer to send to the Department.

34    Relevantly for the purposes of the applicant's second ground, s 256 of the Act provides that:

Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

35    The applicant did not submit that the transmission of the further documents in this case fell plainly within the terms of s 256 of the Act. Nonetheless, he submitted that even if this case fell outside s 256, there must be an implied obligation on those with custody of the applicant at the detention centre to transmit any documents in relation to the revocation decision which he submits for transmission to the Department. That obligation, in his submission, would be consistent with the tenor of s 256 and the statutory scheme for immigration detention under the Act. As Beaumont J pointed out in NAFC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1587; (2002) 126 FCR 99 at 105 [21], that statutory regime "…shows that immigration detention under the Act involves both the deprivation of liberty of the person and the assumption of control over the person, particularly in respect of residency" (emphasis added). Furthermore, in the applicant's submission, a failure to perform that implied duty may result in jurisdictional error tainting the decision of the Minister not to revoke the cancellation decision: see by analogy Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 221 especially at 35 [34] (Gageler and Keane JJ). There is obvious force in that argument.

36    While the Minister initially asserted without elaboration in his written submissions that even if relevant, no breach of s 256 of the Act has been established, the Minister did not ultimately dispute that ground 2 would be made out if the applicant were believed. Rather, the Minister argued that the applicant had failed to prove that he had provided the documents to a Serco officer to send to the Department and relied upon evidence of the procedures said to be followed by Serco officers at Villawood IDC when handling correspondence to and from detainees. It was on this basis and on the ground that the applicant's account was a recent invention that the Minister submitted that the applicant had failed to discharge the onus upon him of establishing the breach of procedural fairness or of the obligation on Serco officers to send the documents to the Department. The Minister's position in this regard is clear from the following submissions by Mr Reilly, counsel for the Minister, in the course of the hearing:

MR REILLY:…     Ground 2, we do take an onus point essentially.

HER HONOUR:     Do you take issue with the proposition that the officers who are properly authorised under the Act are under an obligation to provide material that is supplied to them for provision to the tribunal in connection with an application for review?

MR REILLY:         No. In general I don't, your Honour, no.

HER HONOUR:     No. Thank you.

MR REILLY:         But there is a specific procedure at Villawood.

HER HONOUR:     Yes.

MR REILLY:     Which has been described in the evidence to your Honour. The applicant did seem to acknowledge that procedure and, as I understood his evidence, he claimed that he sought to make use of it.

37    In this regard, it is not in issue that, as the Minister submitted in her written submissions:

The Applicant bears the onus of establishing the factual foundation for a breach of procedural fairness e.g. VAAD v [Minister for Immigration & Multicultural & Indigenous Affairs] [2005] FCAFC 117 at [44-45] and cases there cited. And evidence is to be weighed according to the proof which it is in the power of one party to produce and the power of the other to contradict: Qantas Airways Ltd v Gama (2008) 167 FCR 537 (FC) at [138] per Branson J.

38    It follows that the critical issue is whether the applicant is to be believed in his evidence that his wife gave him the documents in question and he provided them to a Serco officer to send them to the Department. It is necessary therefore to set out the evidence with some care and to identify precisely the factual matters that were put in issue.

6.2    The first set of documents allegedly provided by the applicant's wife in January 2015

39    In his affidavit sworn on 12 February 2016, the applicant gave evidence that, shortly after his transfer to Villawood IDC at the end of January 2015, his wife visited him and brought with her a letter from her local GP, Dr Athour. He also said that "I think that she also bought a second document, namely a letter from her social worker, Teresa Simpson, dated 30 January 2015", a copy of which was attached to his affidavit. He further deposed that:

I submitted the documents which [the applicant's wife] had brought me to the Department of Immigration, by giving them to an officer of Serco, the security company which operates Villawood IDC. I cannot remember which Serco officer I gave the documents to. He was a male. At the time I gave the documents to the Serco officer, I filled in a request form. I understand that at least the letter from Dr Arthour [sic] was considered by the Assistant Minister in relation to my application, as it appears in the material attached to her decision, along with my request form. The letter from Teresa Simpson does not.

6.3    The alleged invitation to provide further material to the Department during or after the interview on 21 April 2015

40    The applicant deposed that in late April 2015, he participated in a telephone call with someone from the Department of Immigration Character Assessment Unit called Anthea and that during or after the interview, he was told that he had an opportunity to submit more information within 14 days. He was not cross-examined on that evidence.

41    His evidence in this regard is corroborated by an email which attached the record of interview with the applicant from Anthea Hammond who, as I have mentioned, was the officer who conducted the interview. In the email, Ms Hammond states:

I interviewed [the applicant] this afternoon, which was very helpful. Attached is a record of the interview…I have asked him to read it and sign it, if he agrees it is accurate. Otherwise, he should annotate the record to indicate anything he disputes. I have also invited him to add any information he wants to. I would appreciate your assistance in getting the signed copy back to me….

(emphasis added.)

42    Nor did Ms Hammond dispute the applicant's account that she gave him an opportunity to submit further material within 14 days, noting that her affidavit was affirmed on 25 February 2016 and therefore after the applicant's affidavit had been filed on 15 February 2016. In the circumstances therefore I find that the applicant was told by Ms Hammond during or after the interview on 21 April 2015 that he could provide further information within 14 days.

6.4    The applicant's evidence as to the assistance provided by his wife to obtain further documents

43    The applicant said that following the interview, he spoke to his wife and asked her to get more documents about her medical condition and the need for him to care for her. Having found that the applicant was given an opportunity to provide further information and the applicant being in detention, I accept that he took the next step of asking his wife to obtain further documents. He clearly had a very strong reason for doing so.

44    The applicant further said that his wife provided him with further documents which he gave to a Serco officer to provide to the Department. Specifically, it was his evidence that:

12.    At a visit sometime shortly after that, [my wife] brought with her a bundle of documents. The documents included:

(a)    a letter from each of my two daughters;

(b)    a letter from my dad;

(c)    a letter from the business I had intended to work for following my release from prison, which was a furniture removal business run by [my wife's] uncle;

(d)    a letter from [my wife's] mum;

(e)    approximately 5 letters of reference from neighbours of mine;

(f)    letters of reference from businesses in the local area where I had lived before going to prison, including a bottle shop and a bakery;

(g)    a letter from [my wife's] specialist, Dr Baraket;

(h)    a letter from [my wife's] chemo doctor, whose name I cannot now remember.

45    I note that, as the applicant's wife had passed away before the applicant put on his evidence, clearly no adverse inference could be drawn from the failure to obtain evidence from her.

46    The applicant further said that, while he had made attempts to obtain copies of the documents which he said he gave to the Serco officer, he had not been able to as at the time of swearing his affidavit, aside from the letter from the social worker.

47    In line with the applicant's evidence, it is not in issue that none of the documents described by him aside from the letter from Dr Athour were attached to the Minister's decision. Nor is it in dispute that there is no reference to those documents in the Minister's decision. Both parties therefore accepted that those documents were not before the Minister when she made her decision. Further, Ms Hammond gave evidence that, following the interview on 21 April she did not receive any additional information from the applicant or on his behalf in relation to his revocation application other than the final page of the record of interview signed by him on 22 April 2015. She also said that, upon reviewing the Department's records and files, she could not locate any additional representations made by or on behalf of the applicant with the exception of an email to the Hon Peter Dutton MP on 26 October 2015. In those circumstances, if the applicant is believed in saying that he gave the documents to a Serco officer to send to the Department, the options are (as the applicant contends) either that the documents were received by the Department and were not considered, or that they were not received by the Department through inadvertence or otherwise on the part of officers at Villawood IDC.

6.5    The applicant's evidence that he gave the documents to a Serco officer to send to the Department

48    The applicant's evidence in chief regarding the alleged provision of the documents to the Serco officer was as follows:

13.    Shortly after [my wife] gave me the documents, I submitted the documents to the Department of Immigration for consideration in relation to my application for revocation of the cancellation of my visa. I did this by giving the documents to a Serco officer. He was a male. I cannot remember the name of the Serco officer. This was about a week after the telephone interview. I think I filled out another request form at the time I submitted the documents. At the time I gave the documents to the Serco officer, I said words to the following effect: "This has to be given to immigration because they have asked for more information in relation to my visa cancellation."

49    The applicant explained in cross-examination that when he said that he gave the documents to an officer of Serco, he meant "[g]ive them to an officer at the window in your compound and they fax them for you and send them whenever they feel like it" and that he did this on the two occasions he referred to in his affidavit (i.e. January 2015 and after the interview). It was then put to him in the following passages that if he had sent a fax, he would have been given the fax confirmation sheet:

… Well, can you assume that they have no record of these faxes being sent?---Yes.

All right. And they say that when a fax is sent, the fax is returned to the person who sent it with a fax confirmation sheet?---Not all the time.

Well, that's the procedure they say is followed?---Not all the time.

Right. If you sent a fax, you would have got the fax confirmation sheet back?---Not all the time.

And if you didn't get it back, you could have asked for it?---Yes.

And also you could have asked for the fax that you sent back?---Yes.

It seems you didn't do that; is that right?---I'm not sure.

Well, you say you don't have the documents that you sent on the second occasion anymore. That's in your affidavit?---Yes.

Right. Can you explain why that is?---No, I can't – I can't.

Well - - -?---Can't remember.

You can't remember. But you can remember what the documents are, apparently?---Yes. Yes, I had to get those, because that's what the lady on the phone said I had to get. More submissions on my daughters, father's work, neighbours, and ..... so I could get out and look after my missus, so yes, I did it.

All right. So am I - - -?--- .....

- - - correct in understanding, then, that you're agreeing that you could have asked for those documents after they – you say had been faxed, but you didn't ask?---No, because my mind wasn't on that. I was too worried about going home to – to take care of my partner.

And you could have asked for the fax confirmation sheet?---This is – this is all new to me.

Well, I'm just – this is just in your affidavit. You say you gave off - - -?---Yes, but the fact [sic] sheet and all that, I don't know – I've never had that ever in my life.

And you haven't been able to find any copies of these documents that you say you sent on the second occasion.

But you've looked, haven't you?---Yes, I have.

50    Mr Reilly of counsel then put it to the applicant that he was lying about sending the faxes in the following passages:

MR REILLY: If you sent material to the Minister, as you claim, you would have wanted to know that that was received by the Minister, wouldn't you?---Yes, I would have. But at the time I wasn't thinking about that.

And you would have, if you sent it, have asked for a copy of it back from the Serco officer after it had been faxed?---Not necessarily.

And you would have, for the same reason, asked for a copy of the fax confirmation sheet, if it was faxed?---No.

And you're just making this up, aren't you?---No.

That's why you didn't mention anything about it until this year?---No.

That's why you don't have copies of these documents anymore?---No.

You've been convicted of crimes of dishonesty in the past, haven't you?---No.

No?---Unlicensed driving.

Really? You haven't been convicted of obtaining money by deception?---Yes, sorry.

So you have been convicted of crimes involving dishonesty?---Yes. By deception.

Yes. You're just lying today, aren't you - - -?---No.

- - - to try to stay in Australia?---No.

6.6    The Minister's evidence as to the procedures followed at Villawood IDC with respect to the sending and receipt of correspondence

51    Evidence was given for the Minister as to the procedures followed at Villawood IDC with respect to the sending and receipt of correspondence by two witnesses.

52    First, Mr Lara gave evidence that he had held the position of Facility Operations Manager at Villawood IDC for approximately 3.5 years and that his responsibilities included managing the daily operations of Villawood IDC. He gave evidence that the applicant was relevantly detained at Villawood IDC in the Mitchell Compound from 30 January 2015 to 15 May 2015 and since then in the Mackenzie Compound. He said that the procedures for detailing sending and receiving correspondence are the same in both compounds, and that men only were located in those compounds.

53    With respect to sending correspondence by fax, Mr Lara deposed in his affidavit that a detainee would come to the officers' station in their compound:

6.     The office has a window, which the detainee approaches and he asks a staff member present in the office to fax the document. The fax machine is beside the staff member and can be seen by the detainee through the window.

7.    The staff member will fax the document, and then return the document to the detainee. The staff member will wait for the fax confirmation sheet. The staff member will then hand over the fax confirmation sheet to the detainee. Staff do not keep a copy of the fax confirmation sheet.

8.    The staff member will then complete an entry in an incoming and outgoing mail log.

(a)    Villawood maintains an incoming and outgoing mail log for all detainee correspondence, both incoming and outgoing, for correspondence sent by fax and by post.

(b)    The log is the only record kept of incoming and outgoing correspondence.

9.    The log will record the date of the correspondence, the detainee's name, their service number, their compound, whether the document was sent by fax or by mail, whether were it was incoming or outgoing, whether the document has been security checked, the staff member's name and initials, the time issued to detainee, and the signature of the detainee.

54    With respect to postal correspondence, Mr Lara gave evidence that:

10.    Postal correspondence is dealt with in the same manner as fax correspondence, in terms of its entry into the mail log. In the case of correspondence that is outgoing, the detainee comes to the window mentioned above, and drops of [sic] his mail to be sent.

11.    In the case of postal correspondence that is received by detainee, the detainee signs the log when he receives the correspondence.

55    Email correspondence falls into a different category. If detainees have their own email address, they may use email to communicate. Mr Lara gave evidence that the detainees at Villawood IDC have access to computers with Internet access but no log is kept detailing email communications.

56    With respect to request forms, Mr Lara gave evidence that:

13.    In some instances, when detainees want to ask for something to be done, they will complete a form, 'Detainee Request Form'.

14.    A request form can be used for various different requests, and can be addressed to various persons including particular offices, SERCO generally, or other entities such as IHMS (in relation to medically related requests). It is not necessary for a detainee to complete a request form to send correspondence by post or by fax, although it is sometimes done.

57    I accept Mr Lara's evidence in so far as it outlines the procedure which applies to staff members when a detainee at Villawood IDC wishes to send a fax or a letter. However, it is apparent from Mr Lara's cross-examination and the incoming outgoing mail log that those procedures are not always followed. For example, Mr Lara agreed that the log does not always record whether or not on every occasion a document is incoming or outgoing, the time that the document was issued to the detainee, or the detainee's signature. Mr Lara also accepted that sometimes correspondence which is sent or received by a detainee at Villawood IDC may not be logged at all. Added to this, entries in the log were not checked by the Client Services Manager (CSM) until many months after they were made, a matter which also impacts on the reliability of those logs (see below at [60(4)]). As such, I do not give Mr Lara's evidence any weight insofar as it is relied upon as evidence that the procedures are always followed by officers. As such, his evidence does not provide a sufficient basis on which to infer that the procedures which Mr Lara detailed were followed in the applicant's case. This also undermines the basis on which the applicant was cross-examined as set out at [49]-[50] above. The assumption underlying the questions suggesting that the applicant would have been given the documents back after they were faxed and would have received a fax confirmation sheet has not been established by Mr Lara's evidence.

58    Secondly, Ms Zammit deposed in her affidavit that on 24 February 2016, she obtained:

(1)    "a complete copy of the Villawood Detention Centre Incoming Outgoing Mail Log – Detainee for Mitchell compound for the period 1st January 2015 to 13th June 2015" (confidential annexure 'SVZ1' to her affidavit); and

(2)    "a complete copy of the Villawood Detention Centre Incoming Outgoing Mail Log – Detainee for Mackenzie compound for the period 1st January 2015 to 31st May 2015" (confidential annexure 'SVZ2' to her affidavit).

59    A copy of these annexures was also annexed as annexure "SVZ3" which was redacted to remove all details of third parties but not those relating to the applicant.

60    While it is apparent from her cross-examination that Ms Zammit had limited understanding of the procedures and what the Villawood IDC incoming/outgoing log recorded, she gave evidence that:

(1)    mail received at the front desk of Villawood IDC is not accessible by a detainee until it has been sent to their compound and that a number of the entries indicated that there could be delays between receipt of a letter at the front desk and issue to the Mitchell compound or the recipient that day;

(2)    the entries in the log are filled in by whichever officer happens to be on duty at the officers' station at the compound at the relevant time that the correspondence is sent or received;

(3)    while some officers appear to record whether correspondence or faxes are incoming or outgoing, others do not;

(4)    entries in the logs were checked by the CSM long after the entries were made, although she could not explain why (the example being that entries between January and May 2015 were signed as checked by the CSM only on 7 November 2015);

(5)    she checked the mail logs of the Mitchell and MacKenzie compounds for the months of February and May 2015 because that was what she was asked to check, and scanned only over (but did not read) the remainder of the mail logs. As a consequence she missed the entry in the mail log that a further letter was sent or received relating to the applicant dated March 2015 (the precise day being unclear);

(6)    she did not look at the mail log for the Mackenzie compound for the period after 31 May 2015; and

(7)    she could not rule out the possibility that the applicant sent correspondence to the Department or to the Minister after 31 May 2015.

61    Accordingly, given the state of the evidence, I cannot accept the mail logs as reliable in the sense that they provide a comprehensive record of all correspondence received into and sent out of the Mitchell and MacKenzie compounds during the period that the applicant was detained in those compounds between 1 January 2015 and 31 May 2015. It follows that I do not accept that the mail logs demonstrate that the applicant did not send the correspondence which he requested be sent to the Department. However, I accept that the records do record the following items of incoming or outgoing postal correspondence received by Villawood IDC in relation to the applicant (as identified by Ms Zammit):

(1)    a record dated 8 February 2015 of incoming correspondence;

(2)    a record dated March 2015 of an incoming or outgoing letter;

(3)    a record dated 11 May 2015 indicating a fax but failing to indicate whether the fax was incoming (i.e. received by Villawood IDC addressed to the applicant) or outgoing (i.e. sent by the applicant) (as Ms Zammit accepted in cross-examination);

(4)    a record dated 12 May 2015 indicating an item with the time for receipt being 18:00 hours and the time issued being 18:00 hours, although the record did not indicate whether the mail was incoming or outgoing (as Ms Zammit accepted in cross-examination); and

(5)    a record from the Villawood IDC mail log relating only to incoming postal correspondence received at the front desk managed by SERCO at Villawood IDC which disclosed incoming mail received on 12 May 2015 at 09:18 and issued at 18:13.

62    I note that the record does not indicate from whom an item is received in the case of incoming correspondence or to whom the items are addressed in the case of outgoing correspondence (which is understandable from a privacy perspective and for which I imply no criticism). I also note that, while a copy of the original mail log was requested by the applicant's legal representatives given the poor quality of the copy of the apparently faxed version of the mail log, no such copy was forthcoming.

6.7    Is the applicant to be believed in his account that he gave the documents to a Serco officer to send to the Department?

63    I do not accept the Minister's submission that I should find that the applicant's evidence that he gave further documents to Serco officers to be faxed to the Department after his telephone call with Ms Anthea Hammond is a fabrication; nor, to the extent to which it was challenged, his evidence that he gave the letter from the social worker to a Serco officer for the same purpose prior to that interview. To the contrary I find the applicant to be a witness of truth and accept his account of what happened.

64    First, the applicant remained steadfast in his evidence notwithstanding, as counsel for the applicant described it, "a considerable attack" on his credit in cross-examination.

65    Secondly, as earlier found, the primary basis for the attack on the applicant's evidence in cross-examination, being the Minister's evidence as to procedures said to be followed at Villawood IDC, was not established.

66    Thirdly, the applicant had the most compelling of reasons to take up the opportunity extended to him by Ms Hammond to provide further information in support of his revocation request, given his wife's terminal illness and the pressing need for him to continue as her full-time carer, as he had done in the past when not incarcerated (see the Minister's reasons at [20]). As the applicant pointedly said in his evidence "so I could get out and look after my missus, so yes, I did it." Equally, his wife had the most compelling of reasons to obtain that information and, as counsel for the applicant submitted, "[t]he thrust of it was that his partner was the one who was in effect doing things for him, gathering the evidence for him, which again wouldn't be surprising. She was on the outside, and he wasn't." Furthermore, he had a minor daughter from a previous relationship with whom he had had fortnightly personal contact (Minister's reasons at [13]).

67    Fourthly, the applicant was able to give a detailed description of the further documents which he received from his wife and endeavoured to send to the Department, including identifying third parties who were said to have provided letters in support save where he could not remember the name of his wife's chemotherapy doctor. Those further documents also accorded with what he explained "the lady on the phone said I had to get. More submissions on my daughters, father's work, neighbours…." (see above at [49]). Moreover, he referred to filling in request forms to request that the documents be sent by an officer at the Villawood IDC (see above at [39] and [48] above) and giving the documents to an officer through a window (see above at [49]). This evidence demonstrated that the applicant was familiar with those parts of the procedure described by Mr Lara at Villawood IDC applicable to detainees such as the applicant.

68    Fifthly, the Minister sought to make much of the fact that the applicant had not raised earlier the lack of any reference to the further documents obtained by his wife (with one exception) in the reasons for the Minister's non-revocation decision. However, even in his application in the Federal Circuit Court filed on 24 July 2015 a short time after the non-revocation decision, the applicant alleged that "[i]n making her decision, the Assistant Minister didn't take into account statements provided by hospitals and treating doctors, denying the seriousness of an advanced cancer, and hardship [his wife] was experiencing while the Assistant Manager [sic] was writing her decision not to revoke a visa cancellation" (emphasis added). That allegation, while it does not expressly state that documents which the applicant sought to provide to the Department do not appear to have been before the Minister, is consistent with the applicant's evidence as to the documents which he says were not received by the Minister, as opposed to the one medical report from Dr Athour which is attached to the Minister's non-revocation decision.

69    Next, the applicant gave a number of reasons to explain why he had not raised the matter earlier. He explained that he did not know that the further documents were missing, that his wife was dying, that she did everything for him and is now gone, and that he did not know the documents were not present when he received the Minister's reasons but only when someone read the reasons to him. That explanation is entirely credible given his circumstances including his unchallenged evidence that he has the reading ability of a five year old and the fact that he had no legal representative at that time who might have advised as to the potential significance of the failure by the Minister to refer to the missing documents.

70    Furthermore, Mr Lara very properly accepted the possibility that the fax attaching the further documents following the interview from the applicant may not have been sent, it being apparent that the procedures which he outlined in his evidence in chief were not invariably followed by Serco officers. This is consistent with the applicant's evidence that documents had not been sent on previous occasions.

71    Moreover and perhaps supporting the alternative option available on the evidence that the documents were sent to the Department but for some unknown reason were not placed before the Minister, Ms Zammit accepts in her evidence that the applicant may have sent a fax on 11 May 2015. The timing of that fax is not long outside the 14 day period which the applicant had been given within which to provide further material and the time within which the applicant said that he had requested the documents be sent (about a week after the interview). Given the passage of time since those events and the stress under which the applicant was no doubt suffering given in particular his wife's terminal illness, I would give little weight to the small discrepancy in his evidence as to timing. Moreover, I consider that it is plausible that the applicant did not request the material back or fax confirmation sheet, given his evidence that this had not happened before and given the evidence that procedures were not necessarily followed by Serco officers.

72    As against this, the Minister submitted that the applicant would have had the material he sent returned to him together with a confirmation sheet under the procedures in place at Villawood IDC. As such, he submitted that an adverse inference should be drawn from the failure by the applicant to provide those documents in support of his case. However, as I have earlier found, the evidence established that, while the procedures described by Mr Lara are followed on some occasions, they are not followed on other occasions. Nor can I give any weight to Mr Lara's evidence that he was not aware of any complaints having been made about correspondence not being logged or not sent. The tenor of his evidence was that the only way that he would know that there was a problem was if a complaint was made, yet there is no evidence that he was responsible for handling complaints or of any process by which he would have been informed if complaints were made. Nor was he present at the offices for the two compounds supervising at all times. In addition, little weight could in any event be given to an absence of complaints by detainees against those who detain them where those who might complain are in a highly vulnerable position or may be unaware of a failure to send the documents in accordance with their instructions.

73    Finally, in making the findings above, I do not give any weight to the dishonesty related charge against the applicant in 2004. While evidence of that charge was reproduced in the Court Book as part of the material provided to the Minister, if it had not otherwise been in evidence the applicant's counsel understandably submitted that it would have been objected to under s 102 of the Evidence Act 1995 (Cth). Further, the offence occurred a significant time ago and was not an offence, for example, in relation to statements made under oath. I was also in a position to make my own assessment of the applicant who impressed me, as I have said, as a witness of truth with every reason to provide further information to the Minister in support of his request for the cancellation decision to be revoked. Ultimately, the role of the Court is to assess the applicant's credit and not to 'leap' to assumptions about credit based on a previous unrelated offence.

6.8    Conclusion on the jurisdictional error alleged in Ground 2

74    It follows that the applicant has discharged the onus of establishing the factual foundation for a breach of procedural fairness by reason of the Minister's failure to consider material before her on which the applicant sought to rely or a breach of the obligation on Serco officers to transmit correspondence to the Minister relating to the applicant's request for revocation of the cancellation decision: see in particular [63] above. While the second scenario in my view is the more likely, on either scenario the applicant has established that the non-revocation decision is tainted by jurisdictional error and invalid: see [33]-[37] above.

6.9    Could the further material have made a difference to the Minister's decision?

75    Contrary to the Minister's submissions, this is not a case where it can be said that the further material could not have made a difference and therefore that the grant of relief would be futile: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. It is true that the Minister accepted the applicant's claims with respect to his wife's state of health and the hardship that returning him to New Zealand would impose on the two of them so that further evidence on that point may not have made a difference. However, the further material also included references which the applicant thought would bear upon the risk of future offending. In this regard, it was the applicant's unchallenged evidence that:

15.    I submitted the documents in an effort to show the Assistant Minister that I am a changed person and intended to live a law-abiding life if permitted to remain in Australia, for the sake of my family and my partner, who needed me. I believe that as a result of these documents not being considered, the Assistant Minister formed the view that I was likely to re-offend.

76    In the absence of the missing documents, there was no material from third parties supporting the applicant's contention that he was a changed man before the Minister. Indeed the issues paper prepared for the Minister by the Department specifically noted that the applicant had not responded to the information sent to him on 26 February 2015, despite being afforded the opportunity to do. That information included sentencing remarks which were taken into account by the Minister in finding that the applicant posed an ongoing likelihood of reoffending which was pivotal to her decision not to revoke the cancellation decision. The further documents also included letters from his daughters and other members of his family from whom there was otherwise no material before the Minister. In the circumstances, therefore, it cannot be said that the further material could not have made a difference to the Minister's decision.

7.    CONCLUSION

77    For the reasons set out above, the application should be allowed with costs and the matter remitted to the Minister to make a decision according to law.

78    The Court expresses its gratitude to Mr Hochroth who agreed to represent the applicant on a pro bono basis.

Associate:

Dated:    22 December 2016