FEDERAL COURT OF AUSTRALIA

Kemp v Minister for Immigration and Border Protection [2018] FCA 1106

ORDERS

THE COURT ORDERS THAT:

1.    The application be allowed.

2.    A writ of certiorari be issued quashing the decision made by the Assistant Minister for Immigration and Border Protection under s 501CA of the Migration Act 1958 (Cth) on 27 October 2016.

3.    A writ of mandamus be issued requiring the respondent to re-determine, according to law, the applicant’s application that the respondent revoke the cancellation of his Class TY Subclass 444 Special Category (Temporary) visa.

4.    The respondent pay the applicant’s costs of the proceeding as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The applicant, Mr Kemp, seeks judicial review of a decision of the Assistant Minister for Immigration and Border Protection (Assistant Minister) made under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the decision made by a delegate of the respondent (Minister) to cancel his Class TY Subclass 444 Special Category (Temporary) visa (Visa). The delegate’s decision (Cancellation Decision) was made under s 501(3A) of the Act.

2    Mr Kemp raises two grounds of review in his amended originating application filed with leave granted on 1 February 2017 (Amended Originating Application). At the hearing Mr Kemp sought leave to further amend his application to allege that s 501(3A) of the Act was invalid on the grounds raised in Falzon v Minister for Immigration and Border Protection [2017] HCATrans 84. The hearing proceeded on the basis of the two grounds raised in the Amended Originating Application and, at its conclusion, orders were made accommodating the filing of an application pursuant to s 477A(2) of the Act seeking an order to extend the period within which to make an application in relation to the Cancellation Decision and the filing of a further amended originating application to include the proposed new ground (Amendment Orders). The proceeding was adjourned part heard for further hearing to a date after the High Court of Australia had determined the matter of Falzon v Minister for Immigration and Border Protection.

3    Because of a jurisdictional issue which arose, the Amendment Orders were subsequently vacated and Mr Kemp commenced a new proceeding in the Federal Circuit Court of Australia (FCC) challenging the Cancellation Decision in the manner foreshadowed (FCC Proceeding). On 24 May 2017 the FCC made an order that the FCC Proceeding be transferred to this Court and consolidated with this proceeding.

4    Following the decision in Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61; [2018] HCA 2, which upheld the validity of s 501(3A) of the Act, the Court made orders by consent dismissing the FCC Proceeding with costs. The grounds which remain before the Court for determination are the two grounds raised in the Amended Originating Application.

background

5    Mr Kemp is a New Zealand citizen. He arrived in Australia in 1993 at the age of 28. He has three siblings, 15 nephews and nieces and 25 cousins in Australia. He has two siblings, seven nephews and nieces and 20 cousins in New Zealand. Mr Kemp says that he has lost contact with his family in New Zealand.

6    From 1993 to 2011 Mr Kemp worked as a shearer at farm stations and undertook general farm duties. His ability to work declined because of the physical demands of the job and his development of “shearer’s back”. After a car crash, although he was in pain, Mr Kemp continued to work. Eventually the pain became too much and he drifted out of the work force. Mr Kemp lost an eye and became indebted.

7    In August 2011 Mr Kemp was arrested for his involvement in the supply of a prohibited drug. He pleaded guilty and was sentenced in the District Court of New South Wales (District Court) to 11 years imprisonment with a non-parole period of eight years. That sentence was quashed by the New South Wales Court of Criminal Appeal as manifestly excessive and Mr Kemp was resentenced to five years imprisonment with a non-parole period of three years expiring on 18 August 2016.

8    While in prison Mr Kemp suffered a series of serious medical conditions. In 2015 Mr Kemp required brain surgery; in May 2016 he was readmitted to hospital having been found unconscious in his room with froth around his mouth; on 12 July 2016 Mr Kemp had a neurosurgical procedure; and on 13 July 2016 Mr Kemp returned to hospital for an emergency procedure. Post-operatively on 14 July 2016 Mr Kemp had a type of ischemic stroke and a “code blue” period of non-responsiveness which lasted for between 30 seconds and one minute.

9    Documents produced by the Department of Immigration and Border Protection (Department) to Mr Kemp in answer to a request made pursuant to the Freedom of Information Act 1982 (Cth) include the following:

(1)    by email dated 9 May 2016 a community corrections officer of the Long Bay Parole Unit informed the National Character Consideration Centre (NCCC), among other things, that:

… [Mr Kemp] suffered a stroke 2-3 months ago and was admitted to Prince of Wales Hospital where they removed absences (sic) on his brain and part of his brain. As a result of this operation his skull was broken to access his brain and it now requires reconstruction, due in the next months. Date unknown at this stage. Inmate wears a helmet all the time to protect his brain, suffers constant seizures and has a lack of feeling in his arms due to nerve damage. He also has cognitive issues and it is unknown what he understands or retains. Not sure whether he would legally be able to consent to anything. …

(2)    on 10 May 2016 the “A/Nursing Unit Manager” at Long Bay Hospital Aged Care Rehabilitation Unit informed the Department that Mr Kemp “could not survive in the main gaol population or Villawood because of his high medical needs”;

(3)    by email dated 14 June 2016 the “A/Nursing Unit Manager” at Long Bay Hospital Aged Care Rehabilitation Unit responded to queries raised by the Department as follows:

…

… What treatment is Mr KEMP receiving and is treatment likely to continue indefinitely?

Mr Kemp is admitted at the aged care rehabilitation unit at the long bay hospital for an increased support and monitoring that other facilities i.e. a regular correctional centre would not be able to provide. … He was having seizure like symptoms, treatment and rehabilitation and required treatment at the medical sub-acute unit at the longbay (sic) hospital… Around 09/05/2016 he had a seizure and was sent to the Prince of wales hospital for further investigations and treatment. He had more complications with his health and required a prolonged hospital stay. Until now he remains at the Prince of wales hospital.

…

Will Mr KEMP require hospitalisation when he is released from prison?

Yes he will definitely need a lot of specialist treatment. The cranial reconstruction which has not happened yet will determine how much he can function.

Would Mr KEMP comprehend his situation if his visa were to be cancelled?

Yes but has memory loss issues and is quite forget full (sic) the last time I have seen him. At present I cannot comment on this due to prolonged stay at the Prince of Wales Hospital. The neurosurgery doctor there might be able to provide you some more info.

… Is Mr KEMP competent to make decisions about his own welfare?

As he is able to agree and disagree most of the time. The reasoning behind his decisions lacked solid points and could not pinpoint as why he agrees or disagrees. This based from the last time I have seen him. The doctor at POWH might be able to give a much clearer picture of his cognitive state.

…

10    By letter dated 9 August 2016 the applicant was informed of the Cancellation Decision. In that letter Mr Kemp was invited to make representations to the Minister about revoking the Cancellation Decision, was informed of the basis upon which the Minister could revoke that decision, how he could make relevant representations and was provided with copies of various documents as well as a revocation request form.

11    Mr Kemp lodged the revocation request form and subsequently completed and submitted a personal circumstances form, a short written statement and references.

12    On 27 October 2016 the Assistant Minister decided not to revoke the Cancellation Decision.

Mr McAleese’s evidence

13    Mr Kemp relied on an affidavit affirmed by his solicitor, Gerard McAleese, on 18 April 2017 which was read subject to the Minster’s objection on the grounds of relevance to two parts of it. The parties agreed that the Minister’s objection would be determined as part of these reasons.

14    To the extent it was not the subject of objection, Mr McAleese gave evidence that he contacted Mr Kemp’s sister, Ellen Kemp, about the way in which Mr Kemp provided his reasons as to why the Cancellation Decision should be revoked. The evidence discloses that:

(1)    the form, which I infer was the personal circumstances form, was sent to Ms Kemp;

(2)    Ms Kemp completed the form by speaking with Mr Kemp and his carer over the telephone by:

(a)    asking Mr Kemp the questions on the form;

(b)    his carer then explaining what the questions meant to him; and

(c)    Ms Kemp writing down the answers;

(3)    the process took about an hour and a half; and

(4)    Ms Kemp also prepared the statement attached to the form signed by Mr Kemp which commences with the words “it was an honest mistake ...”.

15    Mr McAleese’s evidence puts beyond doubt that Mr Kemp did not complete the form on his own. In fact the Assistant Minister acknowledges in his statement of reasons for the decision under s 501CA of the Act not to exercise his discretion to revoke a mandatory cancellation visa decision under s 501(3A) (Reasons) at [12] that Mr Kemp’s representations have “… in the main … been made on his behalf by his sister, Ellen Kemp, as Mr KEMP is not in a position to do so”.

16    As noted above, the Minister objected to two parts of the affidavit on the grounds of relevance: first, where Ms Kemp describes Mr Kemp’s memory and his ability to understand the questions; and secondly, Ms Kemp’s explanation of why Mr Kemp did not complete the form by himself which exposes her observations about Mr Kemp’s disability. Mr Kemp submitted that those parts of the affidavit were relevant to the circumstances in which the decision was made, relying on Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 (Gill) at [74]; and to ground two which alleges a denial of procedural fairness.

17    I would uphold the Minister’s objection to the identified parts of McAleese’s affidavit. They are not relevant to the issues before me for determination. Mr Kemp relies on [74] of Gill where Griffiths and Moshinsky JJ said that the primary judge erred in not taking into account the unchallenged evidence of the appellant’s solicitor relied on in the Court below. That was in circumstances where the criticism of the tribunal was that it had made a finding based on what was described by their Honours as an “erroneous belief, which was entirely unsupported by the evidence”. The evidence before the primary judge, which was not taken into account, was relevant to expose the error on the part of the tribunal. The case before me differs in several respects. The evidence which Mr Kemp seeks to rely on was not before the Assistant Minister and thus, contrary to Mr Kemp’s submission, it does not form part of the relevant circumstances as the question before me is whether the Assistant Minister’s decision was affected by jurisdictional error. Further, ground two is not directed towards Mr Kemp’s ability to make meaningful and responsive representations. Rather, it is directed to the question of whether Mr Kemp was denied natural justice because he was not put on notice of the Assistant Minister’s finding that there was a particular risk the applicant might be influenced by others to commit crimes. This evidence can have no bearing on that issue.

The Assistant Minister’s Decision

18    The Assistant Minister noted that the Visa was cancelled under s 501(3A). A delegate was satisfied that Mr Kemp did not pass the character test because of the operation of s 501(6)(a) of the Act on the basis of s 501(7)(c) because he was serving a term of imprisonment on a full-time basis for the offence of supply of a prohibited drug not less than the commercial quantity. After referring to the history of Mr Kemp’s conviction and sentencing, the Assistant Minister noted that Mr Kemp accepted that he did not satisfy the character test and did not dispute the information in the National Police Certificate dated 11 August 2016 concerning his criminal convictions. Accordingly, the Assistant Minister was not satisfied that the applicant passed the character test as defined by s 501 of the Act with the result that s 501CA(4)(b)(i) of the Act was not met.

19    The Assistant Minister then turned to consider whether he was satisfied that there was another reason why the decision to cancel the Visa should be revoked pursuant to s 501CA(4)(b)(ii) of the Act.

20    The Assistant Minister considered the following matters:

(1)    the best interests of minor children, noting that Mr Kemp listed that he had 15 nieces and nephews residing in Australia and that, although their ages were unknown, it was possible that some of them were minors. The Assistant Minister also referred to letters of support in which the authors had referred to their children’s relationship or proposed relationship with Mr Kemp. The Assistant Minister concluded that it was in the best interests of Mr Kemp’s minor nieces and nephews and his friends’ minor children for the Cancellation Decision to be revoked;

(2)    the strength, nature and duration of Mr Kemp’s ties to Australia. The Assistant Minister noted that Mr Kemp had expressed a strong desire to remain in Australia to be close to his family and that Mr Kemp’s sister described her close relationship with Mr Kemp, the positive impact he had had on her life, that he had a home in Australia with her and that she would care for and support him. The Assistant Minister observed that if the Cancellation Decision was not revoked, Mr Kemp’s family in Australia would experience emotional hardship. At [27] of the Reasons the Assistant Minister acknowledged that Mr Kemp had made a positive contribution to the Australian community through his previous employment and at [30] of the Reasons said that he had “given more weight to this consideration as Mr KEMP has spent at least some 18 years contributing positively to the community through his employment as a shearer and general farm hand”. The Assistant Minister found that Mr Kemp had been making a positive contribution to the community;

(3)    the difficulties that Mr Kemp would face if returned to New Zealand. The Assistant Minster referred to Mr Kemp’s “serious medical conditions” and noted that his current functional status was poor and that he requires assistance with mobility and care and an extensive medication regime. At [35] of the Reasons the Assistant Minister accepted that Mr Kemp’s current medical conditions were “relevant factors that would make his settlement in the (sic) New Zealand extremely difficult”. The Assistant Minister also noted that Mr Kemp had lost contact with his family in New Zealand and that his brother and sister who remain there “are not in a position to be able to help and assist” him. At [41] of the Reasons the Assistant Minister accepted that “non revocation of the decision to cancel Mr KEMP’s visa will result in emotional, financial and significant practical hardship for Mr KEMP” and noted that his absence from New Zealand of some 23 years would also cause him some hardship, at least in the short term, requiring a period of readjustment. Notwithstanding the initial hardship, the Assistant Minister found that the similarities between New Zealand and Australia, together with support services available there, would assist to some extent, in reducing the hardship that Mr Kemp would endure upon his return;

(4)    protecting the Australian community. The Assistant Minister noted that remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law abiding. The Assistant Minister then considered Mr Kemp’s criminal conduct. He referred to Mr Kemp’s convictions, had regard to the circumstances of his offending by reference to the sentencing remarks of the District Court and the judgment of the New South Wales Court of Criminal Appeal and referred to his prior criminal history, noting that he had “relatively minor antecedents in Australia” and a history of criminal offences in New Zealand prior to his arrival in Australia. The Assistant Minister found at [54] of the Reasons that “Mr KEMP’s drugs convictions, especially supply a prohibited drug not less than the commercial quantity, are serious having regard to the nature and circumstances of the offending and the dispositions imposed”; and

(5)    the risk to the Australian community. The Assistant Minister observed that at the time of committing the offences Mr Kemp’s situation “could hardly have been much worse”; Mr Kemp had demonstrated remorse for his offending; entered pleas of guilty, indicating that he was prepared to accept responsibility for his offending; was a model prisoner; “states that he has learned his lesson”; is adamant that there is no likelihood that he will re-offend after being in jail for five years; and said “being away from his family for so long has impacted his life”. The Assistant Minister also considered Mr Kemp’s criminal history in New Zealand and Australia, noting at [67] of the Reasons that “he continued to offend over a long period of time, albeit at a relatively minor level, despite sanctions such as fines, periodic detention and short terms of imprisonment”, a factor which caused him some concern. The Assistant Minister then said at [70]-[72] of the Reasons:

70.    The available evidence, in particular the medical reports suggest it is unlikely Mr KEMP would reoffend given his physical and mental impairments. Further Mr KEMP has a supportive and established social network. He is remorseful, and has been of satisfactory behaviour in custody and detention. I have considered the support from his sister, family and friends is a protective factor which may serve to reduce his likelihood of re-offending. I have also considered that prior to his offence Mr KEMP only had a minor criminal history and has served his first significant custodial sentence which will have a salutary effect upon him. Taking into consideration all of the aforementioned factors, I find that Mr KEMP poses a low risk of re-offending.

71.    I am unable to come to a conclusion that he poses no risk of offending, notwithstanding his current ailments, because his rehabilitation is yet to be tested in the community. He does have a history of reoffending, albeit on a relevantly minor scale, but when this is considered with his current situation and his previous remarks about his co-offender ‘abusing his trust’, it is possible that others may seek to take advantage of Mr KEMP and that he may be susceptible to their influence despite the pro social supports that he now enjoys.

72.    I find that if Mr KEMP were to re-offend by offences including the supply of drugs and in particular the supply of drugs not being less than a commercial quantity, the effect upon individuals and the potential harm to the Australian community would be significant.

21    The Assistant Minister concluded that he was not satisfied that Mr Kemp passed the character test or that there was another reason why the Cancellation Decision should be revoked. In relation to the latter issue at [80]-[82] of the Reasons the Assistant Minister said:

80.    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 Mr KEMP, in particular that of supply a prohibited drug not less than the commercial quantity. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

81.    Further, I find that the Australian community could be exposed to great harm should Mr KEMP reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr KEMP.

82.    In reaching my conclusion about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr KEMP represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interest of any minor children as a primary consideration, and any other considerations as described above. These include his lengthy residence and ties to Australia, and the hardship Mr KEMP, his family and social networks will endure in the event the original decision in not revoked. In particular, I have also been mindful of Mr KEMP’s current health conditions, and the substantial hardships that he will face upon return to his home country in light of his physical disabilities and cognitive impairments.

Grounds of review

22    In the Amended Originating Application Mr Kemp raises the following grounds:

1.    In deciding not to revoke the cancellation of the Applicant's visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act), the Assistant Minister exercised his discretion in a manner that was legally unreasonable and took into account an irrelevant consideration.

Particulars

(a)    The Assistant Minister made the following findings:

(i)    while in custody, the Applicant suffered serious medical disorders which caused significant cognitive impairment and limited physical mobility, such that the Applicant now has a poor functional status and requires assistance with mobility and self-care, and is in need of ongoing professional care: Decision Record (DR) [33], [34], [55];

(ii)    if returned to his country of nationality, the Applicant would suffer substantial hardship: DR [39], [41];

(iii)    it was unlikely that the Applicant would reoffend given his physical and mental impairments and thus that he was at a low risk of reoffending: DR [70];

(iv)    notwithstanding this unlikelihood, the Assistant Minister could not conclude that the Applicant poses no risk of reoffending because:

A.    it is possible that others may seek to take advantage of the Applicant, and he may be susceptible to their influence: DR [71]; and

B.    if so influenced, and if he were to re-offend by involvement in the supply of commercial quantities of drugs, the potential harm to the Australian community would be significant; DR [72]; and

(v)    this risk outweighs all other considerations: DR [83];

(b)    This reasoning was arbitrary and capricious, and gave disproportionate weight to the risk identified;

(c)    Further and alternatively, the Assistant Minister took into account an irrelevant consideration, being the 'principle' that persons who commit serious crimes should expect to forfeit the 'privilege' of remaining in Australia: DR [42] and [80].

2.    The Assistant Minister denied the Applicant procedural fairness.

Particulars

(a)    The Assistant Minister's finding of a risk that the Applicant might, despite his serious mental and physical incapacities, be influenced by others to commit crime was a critical issue for the Assistant Minister's reasoning.

(b)    The existence of this risk was an adverse conclusion which was not obviously open on the known material.

(c)    Procedural fairness therefore obliged the Minister to identify and provide the Applicant with an opportunity to comment on the risk. The Minister did not do so.

Statutory Framework

23    Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of, relevantly, subs (6)(a) on the basis of subs (7)(c); and 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.

24    Section 501(6)(a) relevantly provides that a person does not pass the character test if that person has a substantial criminal record as defined by subs (7). In turn, the term “substantial criminal record” is defined in subs (7)(c) to include where the person has been sentenced to a term of imprisonment of 12 months or more.

25    Section 501CA applies if the Minister makes a decision under s 501(3A) of the Act to cancel a visa that has been granted to a person. Section 501CA(3) provides that, as soon as practicable after making the cancellation decision (referred to in the Act as the “original decision”) the Minister must give the person a written notice that sets out the original decision and particulars of the relevant information and 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.

26    The term "relevant information" is defined in s 501CA(2) as 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.

27    Section 501CA(4) provides that 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.

Ground one

28    Mr Kemp alleges that, in making his decision under s 501CA(4) of the Act, the Assistant Minister exercised his discretion in a manner that was legally unreasonable and further and in the alternative, took into account an irrelevant consideration. The particulars to ground one give rise to a number of issues which are relied on individually and cumulatively by Mr Kemp.

Risk of harm and Mr Kemp’s disability – particulars (a) and (b)

Parties’ submissions

29    Mr Kemp submitted that the finding at [82] of the Reasons, where the Assistant Minister held that all considerations were outweighed by the unacceptable risk of harm that Mr Kemp posed to the Australian community, was dispositive. Mr Kemp contends that the finding at [82] is surprising given that the Assistant Minister also found that he has “significant cognitive impairment and limited physical mobility”, “requires assistance with mobility and self-care” and “is in need of ongoing professional care” (Reasons at [55], [33] and [34]). Mr Kemp observed that, despite these serious impediments, the risk that he was found to pose was said to arise:

(1)    because of his “current situation” (that is, his mental and physical disabilities) as it was possible that others may seek to take advantage of him and he may be susceptible to their influence (Reasons at [71]); and

(2)    if so influenced, and he were to re-offend by involvement in the supply of commercial quantities of drugs, the potential harm would be significant (Reasons at [72]).

30    Mr Kemp submitted that two aspects of this reasoning are irrational such that the decision can be said to be legally unreasonable:

(1)    first, the finding that an unacceptable risk arises from persons taking advantage of him is unexplained and irrational. Mr Kemp contended that it is not apparent or intelligible how, in a practical sense, others could take advantage of his condition such that he poses an actual risk to the community. Furthermore, there was no explanation given as to why or how Mr Kemp, in his present state, could threaten the Australian community with involvement in the supply of commercial quantities of drugs or any other crime; and

(2)    secondly, whatever risk Mr Kemp might reasonably be found to pose to the Australian community while under the spell of unidentified wrongdoers, the Assistant Minister gave disproportionate weight to that risk by finding at [82] of the Reasons that the risk was so significant that it outweighed all the other favourable considerations.

31    The Minister submitted that Mr Kemp’s submissions strip away all context from the Assistant Minister’s reasoning in relation to the risk to the Australian community. The Minister further submitted that the finding did not only depend on the risk that Mr Kemp would be susceptible to the influence of others by reason of his mental and physical disabilities but also that Mr Kemp has a history of offending and his apparent rehabilitation had not been tested in the community. The Minister said that it was this combination of factors which led to the conclusion that there was a low but still unacceptable risk that Mr Kemp might re-offend.

32    The Minister submitted that, in any event, the conclusion was not irrational or unintelligible as alleged by Mr Kemp. The Minister noted that Mr Kemp’s submissions depend upon the proposition that it was not rationally open to the Assistant Minister to find that Mr Kemp could be influenced by others to participate in criminal activity because, although not expressly stated, his disabilities render him incapable of participating in such activity. The Minister submitted that this proposition had not been established on the facts and that, while he accepted that Mr Kemp had serious physical disabilities and cognitive impairment, he was capable of writing and responding logically to questions and could, to some degree, move without assistance.

Principles

33    The power exercised by the Assistant Minister was discretionary. A discretionary power conferred by statute is to be construed as subject to a condition that it be exercised reasonably: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [63] (Hayne, Kiefel and Bell JJ)

34    The parties were in agreement about the relevant principles. At the outset it should be noted that the Court has a limited jurisdiction on judicial review. It is not concerned with making the correct or preferable decision. Rather, its “task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful”: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton) at [12] (Allsop CJ). That may result in the decision being characterised as legally unreasonable because of a specific identifiable jurisdictional error or because of the conclusion reached or because of the reasoning process adopted: see Stretton at [12].

35    The principles to be applied in considering whether a decision is legally unreasonable were summarised in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 (Eden) (Allsop CJ, Griffiths and Wigney JJ). Relevantly at [62] and [64]-[65] their Honours said:

62    Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion: Li at [29] (French CJ), [66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at [105] (Gageler J); Stretton at [11] (Allsop CJ).

…

64    Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at [45]-[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at [76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).

65    Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.

36    In Li at [65]-[66] Hayne, Kiefel and Bell JJ said:

65    In Sharp v Wakefield, it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by "according to law". It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be "exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself". It is pointed out in Wade and Forsyth that the legal conception of discretion dates from at least the sixteenth century. In Sharp v Wakefield, Lord Halsbury LC had referred to Rooke's Case, in which it was stated that the discretion of commissioners of sewers "ought to be limited and bound with the rule of reason and law".

66.    This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

(footnotes omitted)

37    At [76] their Honours observed that:

76    … Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

Consideration

38    Mr Kemp raises two issues in relation to [71] and [82] of the Reasons. First, he says that the reasoning at [71] of the Reasons, that he might be susceptible to the influence of others, lacked an intelligible justification because there is no explanation of how Mr Kemp, who the Assistant Minister accepts has physical and mental impairments, could be influenced by others. Secondly, he says that the Assistant Minister gave a disproportionate weight to the risk of harm to the Australian community by finding at [82] of the Reasons that it was so significant that it outweighed all of the other favourable considerations.

39    At [82] of the Reasons the Assistant Minister states his conclusion that Mr Kemp represents an unacceptable risk of harm to the Australian community and that protection of the Australian community outweighed the other considerations set out in the Reasons. The finding at [71] of the Reasons (set out at [20(5)] above) was a step in the reasoning that led to that conclusion.

40    Before making his findings at [71] of the Reasons the Assistant Minister made the following express findings about Mr Kemp:

    at the time of offending, Mr Kemp’s situation could hardly have been worse in that he was without employment, without accommodation and was living in his car with his dogs;

    he had demonstrated remorse for his offending;

    he was prepared to accept responsibility for his offending and had developed some insight;

    he was a model prisoner who was reported to be well-behaved and had “nil incidents”;

    he had made gains in his rehabilitation;

    he has a supportive and established family and a pro-social network in Australia and is motivated to lead a law abiding life;

    his failure to declare his criminal history to the Department in 2011 on his incoming passenger card was an oversight; and

    given his physical and mental impairments, it was unlikely that Mr Kemp would re-offend and that he posed a low risk of re-offending.

41    A review of [71] of the Reasons demonstrates that the Assistant Minister engaged in the following reasoning:

    first, he noted that he was unable to reach a conclusion that Mr Kemp posed no risk of offending, notwithstanding his medical conditions, because his rehabilitation was yet to be tested in the community; and

    next he noted that Mr Kemp has a history of offending and that, while on a minor scale, when considered with Mr Kemp’s “current situation” and his previous remarks about his co-offender “abusing his trust”, it is possible that others may seek to take advantage of Mr Kemp and that he may be susceptible to their influence.

42    In my opinion, the reference to Mr Kemp’s “current situation” referred to by the Assistant Minister in this context can only be to his medical conditions, that is, his physical and mental impairments which are described in detail at [33] and referred to at [70] of the Reasons. I do not accept the Minister’s submission that the words “current situation” also comprehend the fact that he is unable to work and remains at risk of being destitute. That Mr Kemp is unable to work may be a consequence of his physical and mental impairments but there is nothing in the Reasons to suggest that the risk he may become destitute is part of, or relevant to, his “current situation”. This is particularly so given the finding at [70] of the Reasons that Mr Kemp has a “supportive and established social network”.

43    The Assistant Minister, in effect, assumes that Mr Kemp will act in the same way he did in 2011 at a time when he did not have the serious medical conditions he now has. He does not explain how or why, in Mr Kemp’s “current situation”, he will be susceptible to the influence of others and might re-offend.

44    The Assistant Minister’s reasoning proceeds by way of a false comparison in that the Assistant Minister seeks to rely on Mr Kemp’s conduct at a time when he did not have any known physical or mental impairments to make a finding about his prospects of re-offending in the future when he has both physical and mental impairments as a result of various medical conditions. Such an analysis or comparison would only be logical where it could be assumed that Mr Kemp’s circumstances were unchanged. But that is not the case here. The Assistant Minister accepts that Mr Kemp has both physical and mental impairments and at [33] of the Reasons sets out his medical history, noting, among other things, that he has “cognitive slowing, reduced attention and concentration, poor learning and memory, expressive language difficulty and executive dysfunction”. It is not apparent how, in the face of those conditions, the Assistant Minister can conclude that he would fall prey to the influence of others as he did at a time when his situation was quite different. For example, given his current medical conditions, it is highly unlikely that Mr Kemp would return to living the way he did as he requires significant assistance to undertake daily tasks.

45    Contrary to the Minister’s submission, in light of the above, it was not rationally open to the Assistant Minister to find that Mr Kemp could be influenced by others to participate in criminal activity. In my opinion, it is not logical to base an opinion about the likelihood of a person re-offending in the future on past conduct where the characteristics or attributes of that person have changed in the way that Mr Kemp’s attributes or characteristics have changed. To do so, as the Assistant Minister did in this case, is illogical and irrational. As is plain from what I have said at [42]-[44] above, this finding is not based on the unstated proposition that Mr Kemp’s disabilities render him incapable of participating in criminal activity.

46    The Minister submitted that the finding at [71] that Mr Kemp seeks to impugn must be seen in context and that the Assistant Minister relied on other factors in making his finding, for example, his history of re-offending and that his rehabilitation had not been tested in the community. But if the finding at [71] that Mr Kemp’s “current situation” may make him susceptible to the influence of others is illogical, that must affect the balance of the matters referred to by the Assistant Minister, namely, the history of reoffending and the fact that Mr Kemp’s rehabilitation had not been tested in the community, in the calculus of whether Mr Kemp might re-offend. Once that finding at [71] is impugned, it is not possible to rely on the balance of the factors to support the conclusion as their relative weight and role in the Assistant Minister’s exercise of his discretion is not known.

47    In my opinion, the illogicality of the reasoning at [71] of the Reasons identified above goes to a critical matter in the Assistant Minister’s exercise of his discretion pursuant to s 501CA(4)(b)(ii) of the Act, namely the risk of harm to the Australian community. The Assistant Minister’s reasoning in that regard is sufficiently defective to render his decision legally unreasonable and liable to be quashed.

48    While it is strictly not necessary for me to consider the further grounds raised by Mr Kemp, I do so for completeness.

49    Mr Kemp also alleged, as a basis upon which the Assistant Minister’s decision was legally unreasonable, that disproportionate weight was placed on the risk that Mr Kemp might reasonably be found to pose to the Australian community under the influence of unidentified “others”. In that regard, I accept the Minister’s submission that the weight to be given to the different factors was within the “area of decisional freedom” available to the Assistant Minister. It does not matter that a different decision-maker might have come to a different conclusion based on the same factors considered by the Assistant Minister but giving them different weight. As Allsop CJ said in Stretton at [21] “that an assessment whether the decision-maker’s conclusion was legally unreasonable may involve some consideration of disproportionality does not authorise the Court to decide for itself what is necessary for the relevant purpose and to declare a decision beyond that assessment as unreasonable”. For that reason, I reject Mr Kemp’s allegation that the Assistant Minister’s reasoning gave disproportionate weight to any finding concerning the risk to the Australian community.

“Principle” of forfeiting the “privilege” to remain in Australia – particular (c)

50    Mr Kemp noted that the Assistant Minister’s reasoning at [42] and [80] of the Reasons takes into account a “principle” that persons who commit serious crimes should expect to forfeit the “privilege” of remaining in Australia. These paragraphs provide:

42    In coming to my decision about whether or not there is another reason why the original decision should be revoked I have had regard to the consideration of the protection of the Australian community, noting in particular Mr KEMP's claim he does not pose an unacceptable risk of reoffending. I considered the Government's commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. I also took into consideration that remaining in Australia is a privilege that Australia confers on non­ citizens in the expectation they are law abiding.

…

80    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 Mr KEMP, in particular that of supply (sic) a prohibited drug not less than the commercial quantity. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

(emphasis added)

51    Mr Kemp submitted that, for the same reasons as were found in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 (Tesic) at [53] and [56]-[57], the use of the word “privilege” and its elevation to a “principle” gave rise to jurisdictional error.

52    In the alternative, Mr Kemp relies on the concerns expressed in Stretton at [26] (Allsop CJ) and [70(d)] (Griffiths J) and AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451 (AZAFQ) (Allsop CJ, Robertson and Griffiths JJ) at [47] and the reasoning adopted by the Assistant Minister in this case as adding weight to the allegation that the Assistant Minister’s reasoning was legally unreasonable.

53    In Tesic Collier J considered an argument that the Minister did not properly exercise his powers under s 501CA(4) of the Act because there is no principle, as referred to in the Minister’s reasons in that case, that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. In addressing that ground, after referring to the relevant part of the Minister’s reasons, at [55]-[57] her Honour said:

55    I do not accept that the statements of the Minister in respect of “privilege” in this case could properly be confined to rhetoric expounding the relevant considerations concerning Mr Tesic’s criminal history and the importance of protecting the Australian community.

56    The fact that the Minister “took into consideration” that remaining in Australia is a privilege that Australia confers on non-citizens indicates that the decision-making process was distorted. The “principle” coloured the Minister’s reasoning process. The Minister approached the decision from that perspective. As was explained by the Full Courts in both Stretton [2016] FCAFC 11 and AZAFQ [2016] FCAFC 105, that perspective was not correct. The fact that the Minister subsequently repeated the statement concerning privilege in paragraph 55, elevating it to a “principle”, reinforces the point that the Minister attributed importance to this irrelevant consideration in reaching his decision.

57    The statement of reasons in this case may be contrasted with that of the Minister in Stretton [2016] FCAFC 11, where the Minister referred to the “privilege of being able to remain in Australia” in the conclusion, and in the course of elucidating the expectations of the Australian community. Similarly, in AZAFQ [2016] FCAFC 105 the Minister summarised his reasons for cancelling the appellant’s visa, including the generalised statement that non-citizens who committed serious, violent offences should “generally expect to forfeit the privilege of remaining in Australia”. Unlike in these cases, the Minister in the statement of reasons in Mr Tesic’s case referred to the “privilege” as a principle of law referable to the exercise of the power, rather than a general policy statement.

54    In Tupkovic v Minister for Immigration and Border Protection [2017] FCA 73 (Tupkovic) at [32]-[38] Robertson J considered a similar ground to that raised in Tesic. On the facts of that case, in contrast to the findings in Tesic, his Honour did not accept that the decision-making process was distorted or that the Assistant Minister referred to the “privilege” as a principle of law. His Honour was of the opinion that the Assistant Minister was “doing no more than taking into account a statement of policy”: at [33]. At [35] Robertson J said:

In my opinion, Tesic is to be distinguished. In Tesic it was said, at [57], that the statement of reasons was to be contrasted with that of the Minister in Stretton where the Minister referred to the “privilege” in the conclusion and in the course of elucidating the expectations of the Australian community. In Tesic, at [57], it was held that the Minister in the statement of reasons referred to the “privilege” as a principle of law referable to the exercise of the power, rather than a general policy statement. As I have said, in my opinion this did not occur in the present case. It is this which, at [56] in Tesic, was held to be an irrelevant consideration.

55    Other decisions in this Court have distinguished Tesic based on their facts in the manner identified in Tupkovic: see for example, Nigam v Minister for Immigration v Border Protection (2017) 71 AAR 369; [2017] FCA 106 at [62]-[80]; Parker v Minister for Immigration and Border Protection [2017] FCA 314 at [34]-[38]; and Kim v Minister for Immigration and Border Protection [2017] FCA 372 at [43]-[46].

56    Since hearing this matter a Full Court of this Court (Reeves, Robertson and Rangiah JJ) has handed down its decision in Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23 (Tesic Appeal). In one of his grounds of appeal the Minister challenged the finding in Tesic that the reference in the Minister’s statement of reasons to “principle” was referable to a principle of law and contended that the primary judge should have found that references to the “privilege of remaining in Australia” were “an unremarkable synonymous phrase for the statutory rights held under the [Act]” as was held in Stretton at [26].

57    In considering this ground of appeal at [31] the Full Court said:

Properly read in context, the references to “privilege” in [31] and [55] of the Minister’s statement of reasons are not to be construed as suggesting that the Minister was referring to legal principles but to considerations of government policy. Direction No 65 provides the relevant context. We do not read the Minister’s statement of reasons as meaning that a non-citizen has no rights (but only privileges). We therefore do not accept the factual basis for the submission that the decision-making process was distorted. Further and consequentially, we do not accept that there was a misunderstanding of the “privilege” as a principle of law which coloured the Minister’s reasoning process.

58    At [33] the Full Court identified two respects in which the primary judge erred.

59    Having regard to the decisions of Tupkovic and Tesic Appeal and the relevant statements in the Reasons set out at [50] above, there is no basis on which to infer that the Assistant Minister considered that the “principle”, namely, that “persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia”, was a principle of law rather than a statement of policy. The Assistant Minister referred to that “principle” as a matter that he took into consideration and noted that he was mindful of it. It is plain from the context that he treated it as a policy matter affecting the exercise of his discretion conferred by the Act and not as a legal principle. There is no error in the Assistant Minister referring to the “principle” that remaining in Australia is a privilege conferred on non-citizens.

60    Mr Kemp’s alternative argument based on the Assistant Minister’s reference to the “principle” should also be rejected. In support of the argument Mr Kemp relies on Stretton:

(1)    at [26] where Allsop CJ said:

Whilst not the focus of any argument, it is to be doubted that the judicial review of decisions such as this is affected or impeded by the use by the Minister in his reasons of phrases such as “the privilege of being able to remain in Australia”. At one level such an expression can be seen as an unremarkable synonymous phrase for the statutory rights held under the Migration Act. To the extent, however, that the use of that language seeks to surround, or has the apparent effect of surrounding, the decision with an aura of a non-justiciable assessment of community values, I would not necessarily accept such. It is unnecessary for the resolution of this appeal to explore the full fabric of the scope and purposes of s 501 beyond the protection of the Australian community. In particular, there is no call to consider the relevance of what might be called broader political or policy considerations (whether expressed as such, or expressed as a judgment as to the expectations of the Australian community) in the exercise of the power.

(2)    and at [70(d)] where Griffiths J relevantly said:

… In particular, without doubting the relevance to the exercise of that power of protecting the Australian community, it is important that the value of the statement of reasons is not diminished by resort to superficial aphorisms or empty rhetoric, which is illustrated by phrases such as “expectations of the Australian community” and the “privilege” of being a visa-holder. The former concept has the potential to mask a subjective value judgment and to distort the objectivity of the decision-making process. The latter expression is simply misleading as a legal concept. Under Australian law, having the status of a visa-holder is not a privilege. Visa-holders hold statutory and non-statutory rights which are inconsistent with the notion of their status being described simply as a “privilege”. For example, many visa-holders have statutory rights of review and all visa-holders have rights relating to judicial review of adverse migration decisions. The statutory rights of a visa-holder are, of course, subject to the lawful exercise of executive powers such as those under s 501. But that fact does not justify the position of a visa-holder under Australian law being described as merely one of “privilege” in a legal sense.

61    Mr Kemp also relies on AZAFQ Mr Kemp at [47] where the Full Court said:

If the reference to “privilege” in the Minister’s statement of reasons is read in isolation from the balance of those reasons, there might appear to be some force in the appellant’s complaint. This Court has previously commented on the danger of describing a visa holder’s entitlement to remain in Australia as a “privilege” (see Stretton at [26] per Allsop CJ and at [70(d)] per Griffiths J). The inappropriateness of describing such entitlement as a “privilege” is further underlined in the following passage from Gummow J’s judgment in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 611:

… in other respects aliens are not outlaws; many will have a statutory right or title to remain in Australia for a determinate or indeterminate period and at least for that period they have the protection afforded by the Constitution and the laws of Australia.

62    A fair reading of the Reasons leads to the conclusion that, in referring to the “principle”, the Assistant Minister was applying policy and not a principle of law. Mr Kemp had the rights conferred on him under the Act in relation to the Visa and the Cancellation Decision and there is no suggestion that the Assistant Minister was not aware of those rights. It was not legally unreasonable for the Assistant Minister to refer to policy as he did in considering the issue of protection of the Australian community.

Ground two

63    Mr Kemp alleges that he was denied procedural fairness because he was not made aware, prior to the decision, of the Assistant Minster’s concern that he may be influenced by others to engage in criminal activity. He submitted that the Assistant Minister’s reasoning was so unexpected that the issue ought to have been drawn to his attention so that he had a fair opportunity to make the representations that he was entitled to make pursuant to s 501CA(3) of the Act.

64    It was not in dispute between the parties that the exercise of the power under s 501CA(4) of the Act is subject to an implied obligation of procedural fairness. Mr Kemp relies on Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 591-592 where a Full Court of this Court (Northrop, Miles and French JJ) said:

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. …

(emphasis added)

65    Mr Kemp referred the Court to a number of decisions where he said this Court had followed Alphaone, including the passage extracted in the preceding paragraph. Save for one, I do not propose to set out these decisions or address them in any detail. Mr Kemp put some emphasis on the decision in Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112 at [82] where Mortimer J, after setting out the extract from Alphaone in the preceding paragraph, said:

There will inevitably be difficulties in identifying the level of specificity with which these qualifications should be applied in a given case. Taken too broadly, the two propositions outlined by Jenkinson J in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 would not act as qualifications in the way they were intended to. Yet, if applied in too detailed a fashion, they risk subverting the general principle they are said to qualify. By relying on a governing and common sense concept of “obvious and natural evaluation” (as in Somaghi) or “not obviously open” (as formulated by the Full Court itself in Alphaone) the Courts articulate the need for something beyond non-acceptance of material before the decision-maker, and beyond partial acceptance. Those concepts also involve something more than the prospect an applicant might disagree with the decision-maker’s conclusion — that is why the objectiveness of the exercise matters. Such eventualities are the usual outcome of any evaluation of evidence.

66    The qualifications referred to by Mortimer J were set out at [78]-[79] as follows:

78    Before setting out the passage on which the applicant sought to rely, it is instructive to consider the context of that passage. It comes after the Full Court has set out the general principle that a decision-maker is not obliged to invite comment on her or his evaluation of the material before her or him. The Full Court then sets out (at 591) two qualifications to that general principle:

79    Northrop, Miles and French JJ said:

Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109:

1.    The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett J).

2.    The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister of Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634.

67    Mr Kemp submitted that as the adverse conclusion, namely, that because of his disabilities he has “a new and special predisposition to commit crimes because he could be influenced”, was not obviously open on the material it should have been brought to his attention and he should have had the opportunity to comment on it.

68    Procedural fairness in the context of s 425 of the Act was considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL). At [26] the Court noted that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering the requirements of procedural fairness as are the facts of the particular case. At [30]-[33], after referring to what was said in Alphaone extracted at [64] above, the Court said:

30    Particular attention was directed in argument in this Court, as it had been in the courts below, to the Tribunal's conclusion that the three identified elements of the appellant's story were not “plausible”. Was that a conclusion “which would not obviously be open on the known material”? Or was it no more than a part of the “mental processes” by which the Tribunal arrived at its decision?

31     Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged.

32     In Alphaone the Full Court rightly said (27):

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.

(Emphasis added.)

33     The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) (emphasis added)). The reference to “the issues arising in relation to the decision under review” is important.

69    In order to consider this ground it is necessary to start with the relevant statutory framework. As set out at [25] above pursuant to s 501CA(3) of the Act the Minister is required to give the person affected by the cancellation decision, in a way that the Minister thinks appropriate in the circumstances, a written notice that sets out the cancellation decision and particulars of the relevant information and 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 cancellation decision.

70    The Act makes no express provision for an oral hearing. Rather, s 501CA of the Act, although not expressly stated, contemplates that a decision determining whether to revoke a cancellation decision is to be made on the papers. It requires the provision of “relevant information” and an invitation to make representations upon being armed with the said relevant information.

71    Mr Kemp was provided with information on 9 August 2016 in the letter in which he was notified of the Cancellation Decision and with further information in a letter dated 30 August 2016. On each occasion he was invited to make representations or comment on the information. Mr Kemp also completed a “personal circumstances form” which included on the first page:

This form asks for information that is important to the Minister or delegate making a decision about possible cancellation of your visa or revocation of a decision to cancel your visa. It is intended to help you respond to the notice of intention to consider visa cancellation under s501(2) of the Migration Act 1958 or to support your request for revocation of the mandatory cancellation of your visa under s501(3A) of the Migration Act 1958.

72    The personal circumstances form sought information in a number of categories relevantly including: minor children; family details; criminal history and risk of re-offending which in turn included a question asking applicants about the likelihood they would re-offend; strength, nature and duration of ties to Australia; impediments to return; and any other information. The form also suggested the types of documents that could be attached to support the claim, including such things as parole and prison conduct reports and course completion certificates for rehabilitation courses.

73    In my opinion, having regard to the statutory framework, the categories of information sought in the personal information form and the material provided for comment, Mr Kemp was sufficiently on notice of the relevant issues to be considered by the Assistant Minister and of the nature and content of the adverse material. That is, he had notice of the critical issues that the Assistant Minister would consider, including the risk of re-offending and that the Assistant Minister may come to the adverse conclusion that it was likely Mr Kemp would re-offend based on the material supplied by Mr Kemp or known to the Department, such as his criminal history.

74    There was no requirement for identification of the issue at the level of granularity alleged by Mr Kemp. As submitted by the Minister, the circumstances of how Mr Kemp might come to re-offend was part of the Assistant Minister’s assessment of the risk or likelihood of re-offending, a matter which was identified as an issue to be taken into account in the personal circumstances form. The rules of natural justice do not require the decision-maker to disclose his thought processes or what he is minded to decide: SZBEL at [48].

conclusion

75    It follows from my conclusion at [47] above that the application should be allowed. The Minister should pay Mr Kemp’s costs as agreed or taxed. I will make orders accordingly.

Associate:

Dated:    27 July 2018