FEDERAL COURT OF AUSTRALIA
Hunt v Minister for Immigration and Border Protection (No 2) [2018] FCA 1581
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application for an extension of time lodged 25 August 2017 be granted.
2. The applicant be granted relief as sought in his proposed originating application for review of a migration decision lodged 3 April 2018.
3. There be an order in the nature of certiorari quashing the decision of the respondent dated 25 May 2017 to cancel the applicant’s Class TY Special Category (Temporary) visa.
4. The respondent pay the applicant’s costs of the proceeding, to be assessed if not agreed, directly to pro bono counsel.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BARKER J:
1 The applicant, who is a New Zealand national, applies for an extension of time to lodge an application for judicial review of a migration decision under s 476A of the Migration Act 1958 (Cth). He seeks an order in the nature of certiorari, quashing a decision of the Minister for Immigration and Border Protection that cancelled the visa that permitted him to reside in Australia.
2 The applicant first arrived in Australia with his parents in 1993, aged eight. At material times after his arrival, he was the holder of a Class TY Special Category (Temporary) visa.
3 On 20 March 2003, the applicant was convicted in the Queensland District Court of two counts of indecently dealing with a child under 12 (the March 2003 convictions), for which he was sentenced to nine months’ imprisonment, wholly suspended for two years. At the time the offences were committed, he was a minor of 16 years of age.
4 Between 2003 and 2009, both as a minor and an adult, the applicant was convicted of a number of minor offences, including public nuisance and fare evasion on public transport, as well as for failing to comply with reporting obligations under Queensland child protection laws in respect of the March 2003 convictions. He was fined for these various offences.
5 In 2010, when he was again convicted for failing to comply with those child protection reporting obligations, the applicant received a four month prison sentence, which was suspended for 18 months.
6 From 2013 to 2016, the applicant received fines, ranging between $150 and $250, for a number of driving offences.
7 Having regard to this prior record, the applicant’s most significant convictions as of 2017, were the March 2003 convictions, for which he had received the wholly suspended prison sentence.
8 On 20 February 2017 – nearly 14 years after the March 2003 convictions were entered and about 16 years after the relevant indecent dealing offences were committed – the Department of Immigration and Border Protection sent the applicant a notice of intention to consider cancellation of his visa. This notice was sent to the applicant’s most recent address at the time in Perth. There is no suggestions he did not receive the notice. However, he chose not to respond to the notice, despite the invitation in it to make representations as to why his visa should not be cancelled.
9 On 17 May 2017, in the absence of any response from the applicant to the notice of intention, the Department sent a submission to the Minister for the Minister to personally consider whether to cancel the applicant’s visa, on the basis that the applicant did not pass the character test pursuant to s 501(6)(e) of the Migration Act, having regard to his March 2003 convictions.
10 On 25 May 2017, the Minister decided to exercise his discretion under s 501(2) of the Migration Act to cancel the applicant’s visa (the initial decision) on the basis that he reasonably suspected the applicant did not pass the character test and that the applicant had not satisfied him that the applicant had passed the character test. The applicant, by not responding to the Department’s notice of intention, obviously did not assist his own cause in this regard. He gave the Department nothing to assist the Minister in coming to a different view.
11 On 11 July 2017, the Department caused a notice of visa cancellation to be hand delivered to the applicant in Perth. The applicant was then taken from his home into immigration detention at the Yongah Hill Immigration Detention Centre in Northam, Western Australia. Soon after, on 8 August 2017, he was transferred to the Christmas Island Immigration Detention Centre.
12 On 25 August 2017, the applicant, as a self-represented party, filed the present application for an extension of time in which to apply to for judicial review of the Minister’s decision to cancel his visa. His review application should have been lodged 10 days earlier.
13 In September 2017, following the Court issuing a pro bono lawyer certificate, the applicant obtained the assistance of a lawyer.
14 On 28 September 2017, the applicant, with the assistance of his lawyer, requested the Minister to reconsider the cancellation decision in the light of representations he wished to make as to his circumstances, but the request was declined by the Minister.
15 The applicant then amended his application, setting out the following three proposed grounds of review (particulars omitted) of the Minister’s decision:
(1) The Minister’s initial decision to cancel the applicant’s visa was based on evidence of his criminal record which had been unlawfully or improperly obtained by or on behalf of the Minister, causing the Minister to act without jurisdiction in cancelling the visa. This ground raises privacy legislation issues.
(2) The refusal of the Minister to revoke or set aside his initial decision following the applicant’s request for reconsideration on 28 September 2017 gave no adequate reasons; failed to take account of relevant considerations; and was in all the circumstances irrational and unreasonable.
(3) In failing to take into account the fact that the March 2003 convictions had been wholly suspended for two years, the Minister, in cancelling the applicant’s visa, failed to take that relevant consideration into account, rendering the decision illogical, irrational and unreasonable, and fell into jurisdictional error.
16 The primary questions now falling for consideration are:
(1) whether an extension of time to seek judicial review should be granted; and, if so,
(2) whether jurisdictional error on the Minister’s part, on one or other of the three grounds, is disclosed.
17 The merits of the proposed grounds of review are of primary significance to the outcome of the extension of time application, as the delay in seeking review has been satisfactorily explained.
18 For the reasons given below, I would grant the extension of time to allow judicial review on ground 3, and make an order in the nature of certiorari quashing the initial decision together with an order for costs of the proceeding.
Minister’s initial decision
19 Turning first to the Minister’s initial decision to cancel the applicant’s visa.
20 Section 501(2) of the Migration Act provides that:
The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
21 The Minister considered that the relevant ground of the character test in the applicant’s case was para (e) of s 501(6) which states:
Character test
For the purposes of this section, a person does not pass the character test if:
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or
…
22 Based on the applicant’s March 2003 convictions, the Minister found that the applicant did not pass this character test, nor did the applicant satisfy him that the applicant passed the character test.
23 It will be observed that the Minister, by s 501(2), is not obliged mandatorily to cancel a visa if the relevant character test in s 501(6)(e) is not met. Under s 501(2) the Minister “may” cancel a visa if the test is not met. The Minister has a discretion. Other factors personal to the visa holder may relevantly cause the Minister to decide not to cancel the visa.
24 In this case, exercising his discretion, and in the absence of any representations contrary from the applicant, the Minister stated that he was mindful of Australia’s sovereign right to determine whether non-citizens who were “of character concern” should be allowed to remain in the country. Further, the Minister stated that he considered the Government’s commitment to protect the Australian community from harm resulting from criminal activity of non-citizens.
25 In respect of the applicant’s criminal conduct, the Minister was of the view that sexual offences involving children were very serious and, accordingly, that the applicant’s March 2003 convictions were very serious. He stated of these convictions, at [11]-[13] of his reasons:
11. On 20 March 2003, Mr HUNT was convicted in the District Court at Queensland of two counts of unlawfully and indecently dealing with a child under 12 and sentenced to nine months imprisonment on each count.
12. The sentencing Judge described the offending as ‘two extremely serious offences’, both of which involved a ‘breach of trust’. The two counts of unlawfully and indecently dealing with a child under 12 relate to the same child, a distant relative, whom Mr HUNT was baby-sitting at the time of the offences.
13. In both cases Mr HUNT digitally penetrated the victim’s vagina. The second count occurred whilst Mr HUNT and the victim were swimming. The Judge took into account a victim impact statement and found the offences ‘obviously would have had some impact’ on the child.
26 The Minister further stated in his reasons that the applicant’s sentence in regard to the March 2003 convictions indicated the seriousness of the offending, because “[d]ispositions involving sentencing the offender to a term of imprisonment are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious”.
27 It will be noted, in passing, that the Minister did not, in this passage of his reasons, note that the Court wholly suspended the sentence of imprisonment for nine months, for a period of two years.
28 The Minister also made reference to the applicant’s convictions between 2007 and 2010 for failing to comply with reporting obligations under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). He noted, in this passage of his reasons, that the applicant “received fines and, in 2009, a term of imprisonment of four months, suspended for 18 months”. The suspended nature of the sentence was therefore expressly noted in relation to this sentence which concerned the reporting failure conviction.
29 The applicant’s convictions between 2003 and 2016 for fare evasion, public nuisance, unauthorised driving and speeding offences were also referred to, and the Minister commented on the applicant’s fines.
30 The Minister then addressed the risk to the Australian community that the applicant posed, noting that the applicant was 16 years of age at the time of committing the offences which resulted in the March 2003 convictions. He stated that he accepted that the applicant’s youth may have played a part in this offending. He acknowledged that the applicant pleaded guilty to these offences, sparing the complainant from having to give evidence. The Minister said that this showed the applicant had some level of remorse and insight into his offending which indicated a “lower likelihood of re-offending”.
31 The Minister again referred to the applicant’s failure to comply with his reporting obligations on multiple occasions, as recently as in 2010. He found this showed “not only a further disregard for Australian laws designed to protect the community, but also a lack of continued insight into his sexual offending”, indicating “some risk of re-offending”. The Minister said that the applicant’s multiple appearances before courts as an adult “showed some propensity to continue to disregard Australian law”.
32 The Minister noted that the applicant did not make any representation regarding rehabilitative efforts made in relation to his sexual offences, and found that, despite 15 years having passed since the sexual offences, there was “a likelihood, albeit low” that the applicant would re-offend in a similar way.
33 To this end, the Minister considered that if the applicant did engage in further criminal conduct of a similar nature, that this could result in psychological or physical harm to the Australian community, such that “even the smallest risk of re-offending was a sufficient risk”.
34 The Minister also regarded the best interests of minor children, stating that there was no information before him regarding the applicant’s minor children, but accepted that the applicant may have children or ongoing relationships with minor children such as stepchildren. He further accepted that any such children would suffer emotional, and potentially financial, hardship should the applicant’s visa be cancelled, meaning it was in the best interests of said children not to cancel his visa.
35 The Minister then considered that the applicant had breached the trust of the Australian community based on his March 2003 convictions, and concluded that the Australian community would expect that the applicant should not hold a visa.
36 In regard to the applicant’s ties to Australia, the Minister acknowledged that he had lived in Australia for most of his life, from a young age, meaning the community may afford a higher tolerance of his criminal conduct.
37 Again the Minister stated that the applicant had not provided information in regard to his ties to Australia, but accepted that he would have made social and work contacts and it was likely that if the applicant had family residing in Australia they would suffer emotional hardship in the event the applicant’s visa was cancelled.
38 Finally, the Minister said that the applicant was unlikely to experience substantial language or cultural barriers if he returned to New Zealand, however accepted he would experience some hardship if he did not have a support network to help establish himself. The Minister considered this impact would lessen over time as the applicant would have access to comparable welfare and support services in New Zealand as exist in Australia.
39 In reaching his first conclusion to exercise his discretion to cancel the applicant’s visa, the Minister stated:
I am cognisant that where harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct by Mr HUNT, than I otherwise would, because he has lived in Australia for most of his life and from a young age.
Background information provided by the applicant
40 The applicant had 35 days within which to apply for judicial review of the Minister’s decision. When he lodged this application, he was 10 days out of time.
41 In his filed affidavit in support of his extension of time application, the applicant deposes that he was only notified of the decision to cancel his visa 47 days after the decision was made, which meant the 35 day time limit for applying for judicial review had already passed.
42 He states that he was first notified of the decision in person on 11 July 2017, the same day that he was taken into immigration detention at Yongah Hill. He says he was overwhelmed by the situation and did not begin to investigate his options until his third week in detention, after realising he could not afford a lawyer and that support from Legal Aid was not an option.
43 He says that, while in detention, the detainee he shared a room with attacked him, resulting in him being moved into a health care section of the centre. The applicant says that in this section he was able to type an affidavit and make an appointment to see a Justice of the Peace on 8 August 2017. However, early on 8 August 2017, before he could meet with the Justice of the Peace, he was transferred to Christmas Island.
44 The applicant says he spoke to a Justice of the Peace on Christmas Island as soon as possible on 10 August 2017 and faxed his documents to the Court that day. He says a few days later he was told he needed to correct errors in his application, which he did and subsequently faxed his updated application on 18 August 2017.
45 He states he then received a response that he had incorrectly filed his application in the Federal Circuit Court, and needed to resubmit his documents in this Court. It is this application which was then successfully lodged on 25 August 2017.
46 In his affidavit, the applicant also sets out a range of information that, in substance, goes to the merits of the Minister’s initial decision. This is material he should have given the Minister when he was initially invited to respond to the notice of intention to cancel his visa.
47 For example, the applicant refers to family violence between his mother and stepfather and what he described as a “rough upbringing”. He deposes that he was sent across the country to live with his father when he was 14, following some time in foster care. He states that due to a break down in his relationship with his father he became homeless, until staying briefly with his aunty and uncle at age 15 and 16. The applicant says that it was during this time that he committed the sexual offences the subject of the March 2003 convictions, for which he is extremely remorseful.
48 He states that in the period following he continued to struggle with homelessness but things began improving and he started to recover from his “disastrous youth”.
49 The applicant says he had a daughter with his then girlfriend in 2007. However, he was arrested on the failing to report charges in 2009 or 2010. At this point, the applicant says, he moved to Perth to make a fresh start, where he met his current fiancée in 2011.
50 He states that he found work in Perth and that his life was beginning to head in the right direction. He refers to his loving relationship with his fiancée, who, he says, is aware of his history. Together they have two (Australian) children, who were one year old and three years old at the time the affidavit was made.
51 The applicant also makes reference to his stepchildren through his fiancée, who were aged nine and 14 at the time the affidavit was made, who he says he has helped to raise. He states that he loves his stepchildren tremendously and understands how difficult it is for children to grow up without a father, as this was something he experienced. The applicant says his partner and children have not done anything wrong to deserve having their fiancée and father taken from them, and that his removal would result in serious financial and emotional hardship, particularly in respect of his stepchildren who are aware they have another father who has nothing to do with them.
52 The applicant further states that his recent infraction in 2016, for driving without authority, occurred while taking his stepdaughter to the local park for tee-ball practice, as he was trying to be a good father and keep the children active and “off the couch”.
53 Finally, the applicant states that he has not committed further sexual offences, and has not been involved in crimes of an aggressive nature or drug related crimes. He says he is proud to have rebuilt his life since relocating to Perth, and has never served any jail time.
54 This matter first came before the Court on 14 September 2017, at which time I issued a pro bono certificate for the applicant to obtain a lawyer.
55 On 21 September 2017, the applicant filed a notice of appointment of a lawyer.
56 On 18 October 2017, the matter came before McKerracher J for case management. His Honour made orders programming the matter to a hearing; allowing for an amended application to be filed and further affidavits to be filed by 16 November 2017; and referring the matter to mediation before a Registrar of the Court. Plainly, the applicant’s hope, on legal advice, was that, despite the initial decision, and the late stage of proceedings, the Minister might agree to reconsider his initial decision in light of the applicant’s actual circumstances and current representations – that is, effectively to restore matters to the February 2017 period.
57 Ultimately, mediation failed to resolve the matter and the Minister declined to reconsider his initial decision at that time.
58 As a result of the failed mediation, on 3 April 2018, the applicant filed an amended application which outlined the substantive orders now sought: (1) an extension of time for the filing and service of the application; and (2) an order in the nature of certiorari quashing the Minister’s initial decision cancelling the applicant’s visa on 25 May 2017.
59 The amended grounds of application, set out at [15] above, included the attack on the decision of the Minister to refuse to reconsider his initial decision.
60 On 3 April 2018, the applicant filed a further affidavit in which he deposed that he did not sign or return an Authority to Release Information form which the Department sent to him with the notice of intention to consider visa cancellation on 20 February 2017. This related to his privacy breach claims ground.
61 The applicant further stated that “at no time have I authorised any person or authority to access my criminal record in either Queensland or Western Australia, or any record that may be held by the Australian Federal Police”. He says that he also has not authorised any person or authority to access his court file from his March 2003 convictions and has always assumed his privacy was ensured by data protection laws applying to Australian states and the Commonwealth.
62 To this affidavit the applicant annexed an email chain between his lawyer and the Minister’s legal representative. He says he had instructed his lawyer to raise with the Minister the question of the Department’s access to his criminal record. He deposes that as at 29 March 2018 (the date the applicant affirmed the affidavit) he had been informed by his lawyer and believed he had not been provided with evidence establishing the procedure by which his criminal record in Queensland, Western Australia, or held by the Australian Federal Police (AFP) was accessed by the Department.
Has the applicant adequately explained his delay in seeking judicial review?
63 In relation to the application for an extension of time, the Minister, in his submissions filed 30 April 2018, acknowledges that the applicant’s application was only 10 days out of time and that the applicant had provided a reasonable explanation for the short delay. The Minister also submits that there is no prejudice on his part, or significant impact, due to the applicant’s delay.
64 However, the Minister contends that, relevantly, the merits of the applicant’s proposed application do not warrant the granting of an extension of time. In referring to the relevant factors to be considered in an extension of time, the Minister cites Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; [1984] FCA 186; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].
65 Subject to consideration of the merits of his claims, I consider the applicant has adequately explained his delay in seeking judicial review.
Ground 1 – Did the Minister’s decision lack jurisdiction on the basis that he relied on evidence of the applicant’s criminal record obtained without consent?
66 Ground 1 states as follows:
1. The respondent cancelled the applicant’s visa based on evidence of his criminal record. This had been unlawfully or improperly obtained by or on behalf of the respondent, causing the respondent to act without jurisdiction in cancelling the visa.
Particulars
1.1. The respondent’s finding that the applicant failed the character test prescribed by section 501(6)(e) of the Migration Act 1958 (Cth) [‘the Act’] was based on evidence of the applicant’s criminal record held in Queensland and Western Australia, and by the Australian Federal Police.
1.2. The applicant did not consent to the respondent acquiring evidence of his criminal record.
1.3. There is no evidence adduced by the respondent showing that, in acquiring the applicant’s criminal record without his consent, the respondent complied with any procedure required by relevant data protection legislation in Queensland, Western Australia, and the Commonwealth.
1.4. The respondent did not, in issuing a Notice of Intention to Cancel to the applicant, and in subsequently cancelling his visa, ‘reasonably suspect that the applicant did not pass the character test’ where the evidence upon which the suspicion was based was illegally or improperly obtained.
1.5. In the circumstances the respondent had no jurisdiction to cancel the applicant’s visa.
67 This ground is elaborated upon in the applicant’s lengthy written submissions at [1]-[34].
68 Following the making of oral submissions at the hearing, I made further orders for the parties to put on additional written submissions concerning ground 1.
69 The particular issue, in relation to which further submissions were required, was whether there had been a breach of the Australian Privacy Principles (APP) made under the Privacy Act 1988 (Cth), having regard to the manner in which the Department requested and obtained a copy of the applicant’s criminal record from the Queensland Police Service on 14 and 15 September 2016, and in relation to the Department’s request to the AFP on 22 September 2016 for a National Police Check in relation to the applicant and the AFP’s provision of a National Police Certificate to the Department in response to that request.
70 A further issue also appeared to arise, namely, whether, if there was a breach of the APP by an officer of the Department in relation to either of the requests for information as to the applicant’s criminal record, any such breach was relevant to the validity of the Minister’s decision to cancel the applicant’s visa.
71 The Minister makes the following detailed submissions as to the first breach issue:
4. It is not in dispute that an officer of the Department, Mr Mullan, requested the Criminal Records section of the Queensland Police Service to provide a copy of the applicant’s criminal record: see Annexure ‘PJC-1’ to the affidavit of Peter John Corbould affirmed on 30 April 2018 (Mr Corbould’s affidavit) at page 7.
5. It is also not in dispute that as a result of that request the Queensland Police Service provided a copy of the applicant’s Queensland criminal record to Mr Mullan on 14 September 2016, and that Mr Mullan in turn provided that criminal record to the Department’s National Character Consideration Centre (the NCCC): see Annexure ‘PJC-1’ to Mr Corbould’s affidavit at pages 5-9.
6. On 22 September 2016 Ms Villarino from the NCCC made a request to the AFP under the APPs for a National Police Check in relation to the applicant: see paragraph 3 of Mr Corbould’s affidavit and Annexure ‘PJC-1’ at pages 11-14.
7. The AFP provided a National Police Certificate to the NCCC on 5 October 2016, and a copy of that National Police Certificate was provided to the Minister as Attachment A to the Submission from the Department concerning the possible cancellation of the applicant’s visa: see Court Book at page 3 [16] and pages 13-15.
8. At the relevant times the Department was an ‘enforcement body’ pursuant to para (ca) of the definition of that term in s 6 of the Privacy Act 1988 (Cth) (the Privacy Act) and the definition of ‘Immigration Department’ in s 6 of that Act.
9. The prohibition in APP 3.3 against the collection of sensitive information about an individual without their consent does not apply if APP 3.4 applies. APP 3.4(d)(i) provides that the subclause applies in relation to sensitive information about an individual (defined as including a criminal record) if the APP entity is an enforcement body and, if the entity is the Immigration Department, ‘the collection of information is reasonably necessary for, or directly related to, one or more enforcement related activities conducted by, or on behalf of, the entity’. The term ‘enforcement related activity’ is also defined in s 6 of the Privacy Act and relevantly includes:
‘(f) the prevention, detection, investigation or remedying of misconduct of a serious nature, or other conduct prescribed by the regulations’.
10. Subsections 501(2) and (3) of the Migration Act provide that the Minister may cancel a visa if the Minister reasonably suspects that the person does not pass the character test. Pursuant to ss 501(6) and (7) of that Act, a person does not pass the character test if the person has a substantial criminal record, which includes the person having been sentenced to a term of imprisonment for 12 months or more, or being sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more.
11. Accordingly, the investigation of a person’s criminal record to determine if they have a substantial criminal record which would authorise the Minister to cancel their visa is an enforcement related activity within the meaning of paragraph (f) of the definition of that term in s 6 of the Privacy Act.
12. Here, Mr Mullan had been advised by the Queensland Police Service that the applicant had received a 9 year custodial sentence for child sex offences in 2000 and, accordingly, Mr Mullan was permitted by APP 3.4(d)(i) to give a notice to the Queensland Police Service seeking information as to the applicant’s criminal record for the purpose of considering whether the Minister reasonably suspects, or is satisfied, that the applicant does not pass the character test, by reason of him having a substantial criminal record. The collection of that information was reasonably necessary for or directly related to, the enforcement related activity in para (f) of the definition set out in paragraph 9 above.
13. In his email to the Queensland Police Service requesting a copy of the applicant’s criminal record, Mr Mullan noted that the Department was an ‘enforcement body’ under the Privacy Act and that the Department collected sensitive information under APP 3.4(d)(i) and may request the disclosure of information from APP entities (including police) under APP 6.2(e) in relation to the Department’s enforcement related activities and investigations. Mr Mullan’s email sought a copy of the applicant’s criminal record so that consideration could be given to cancellation of his visa, an enforcement related activity.
14. The subsequent request by NCCC officer, Ms Villarino, to the AFP for a National Police Check in relation to the applicant was also permitted by APP 3.4(d)(i), as officer Villarino had formed the belief that the information requested was reasonably necessary for enforcement related activities conducted by or on behalf of the Department.
15. One of the enforcement related activities to which Officer Villarino referred was ‘detecting, preventing, investigating and prosecuting breaches of visa, immigration and citizenship law’. This clearly relates to paragraph (f) of the definition of enforcement related activity in s 6 of the Privacy Act as set out in paragraph 9 above.
72 As to whether a breach would, in any event, result in the Minister’s initial decision being invalid, the Minister submits:
16. Further, and in any event, even if there was any breach of the APPs as a result of either or both of the requests to the Queensland Police Service and the AFP for the applicant’s criminal records, any such breach could not result in the Minister’s decision to cancel the applicant’s visa being affected by jurisdictional error.
17. The respondent contends that compliance with the provisions of the Privacy Act and the APPs is not a prerequisite to the making of a valid decision. In Goldie v Commonwealth of Australia (2000) 180 ALR 609; [2000] FCA 1873 his Honour French J observed at [86] that s 16 of the Privacy Act provides that an agency shall not do an act or engage in a practice, that breaches an Information Privacy Principle (IPP). However, his Honour then referred at [87] to the fact that the Privacy Act itself provides for complaints to be made to the Privacy Commissioner in respect of alleged breaches, and the investigation and determination of such complaints, including a declaration as to entitlement to a specified amount by way of compensation. His Honour further observed at [87] that under s 55 of the Privacy Act the Commissioner or the complainant may commence proceedings in the Federal Court for an order to enforce a determination.
18. In Abbasi v Minister for Immigration & Multicultural Affairs [2001] FCA 1274 the applicant’s third ground of judicial review alleged that disclosure of information by the Department to the Tribunal was in breach of IPP 11, and the Tribunal could not lawfully use the material obtained in this manner (at [50]).
19. His Honour Beaumont J concluded at [67] that the third ground was not made out because an inference should be drawn of consent to disclosure of the information to the Department or the Tribunal. His Honour further stated at [67] that he agreed with the decision of French J in Goldie at [85]-[87] that the provisions of the Privacy Act are self-contained, and that he would have refused relief on discretionary grounds in any event.
20. An issue also arose in SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406; (2008) 172 FCR 452 as to whether any breach of the Privacy Act or IPP 11 would establish jurisdictional error by the former Refugee Review Tribunal, and whether, in light of the comprehensive provisions in the Migration Act under which that Tribunal was established and conducted its proceedings, the Privacy Act and IPP 11 had any application (at [23]).
21. His Honour Buchanan J at [31] agreed with the Federal Magistrate below that there was no breach of IPP 11 because the appellant had consented to the disclosure of her information. Buchanan J then noted at [32] that the Minister had also argued that compliance with the Privacy Act was not a prerequisite to the making of a valid decision by the RRT because requirements for a valid decision are set out comprehensively in the Migration Act and because the Privacy Act contains its own remedial provisions which are ‘self-contained’.
22. Buchanan J then stated at [32] that that submission was supported by reference to the judgment of French J in Goldie at [85]-[87] and the concurrence of Beaumont J in Abbasi at [67]. His Honour then concluded in SZLWQ at [32]:
‘Although it was not necessary for the FMCA to examine this issue, I agree with Mr Kennett’s submission that the argument advanced by the appellant to the FMCA was legally unsound and provided no basis for the relief that she there sought.’
23. Likewise here, the Court should conclude that compliance with the Privacy Act and the APPs was not a prerequisite to the making of a valid decision by the Minister to cancel the applicant’s visa pursuant to s 501(2) of the Migration Act, and that even if the Court was to find that there had been a breach of the IPPs, that does not provide any basis for any relief in relation to the Minister’s decision.
73 The applicant’s position is best stated in his submissions made in reply to those of the Minister:
Introduction
1. The Minister’s issues. The issues addressed by the respondent [‘the Minister’] in the Further Outline of Submissions filed on his behalf are not responsive to the primary issue raised on behalf of the applicant [‘Mr Hunt’], and on which the Minister was given leave to make further submissions: namely that evidence of Mr Hunt’s criminal record, relied upon by the Minister in finding that he did not satisfy the character test in section 501(6) of Migration Act 1958 (Cth) [‘the Migration Act’], was obtained without Mr Hunt’s consent, in breach of Australian laws, and is accordingly inadmissible in this Court in support of the Minister’s claim that his visa was cancelled in accordance with the provisions of section 501(2) of the Migration Act 1958.
A. The admissibility issue
2. The absence of consent by Mr Hunt. It is common ground that Mr Hunt had not consented to the Minister’s Department accessing his criminal record as held by authorities in Queensland, the Commonwealth and Western Australia
3. The questions raised: In the circumstances:
3.1. Was Mr Mullan authorised to request Mr Hunt’s criminal record from the Queensland Police Service?
3.2. Was the Queensland Police Service authorised to provide Mr Mullan with Mr Hunt’s criminal record?
3.3. Was Ms Villarino authorised to request Mr Hunt’s criminal record from the Australian Federal Police?
3.4. Was the Australian Federal Police authorised to provide Mr Hunt’s Criminal Record to the Minister’s Department?
3.5. If the evidence of Mr Hunt’s criminal record before him was the fruit of a poisonous tree, can the Minister in the present judicial review proceedings rely upon that that evidence in support of a claim to have cancelled Mr Hunt’s visa in accordance with the provisions of section 501 of the Migration Act, or is that evidence inadmissible under the provisions of section 138 of the Evidence Act 1995 (Cth) [‘the Evidence Act’]?
Fruit of a poisonous tree
4. Justice Frankfurter plants the poisonous tree. The metaphor appears first to have been coined by Justice Frankfurter in Nardone v. United States, 308 U.S. 338 (1939) [‘Nardone’]. In Australian jurisprudence it appears to have been more frequently adopted in the form: ‘fruit of a poisoned tree.’ The original version is to be preferred. In this form counsel alluded to it briefly in DWN042 v The Republic of Nauru [2017] HCATrans 203, a migration case. The principle to which it refers arises more commonly in the criminal law context, although as permitted by section 138 of the Evidence Act 1995 (Cth), it also arises in civil proceedings.
5. Intercepted telephone messages as poisoned fruit. The petitioner came before the Supreme Court for the second time seeking review of dismissal of his appeal against convictions for frauds on the revenue. In the earlier case the Court had reversed the convictions on the first trial because they were procured by evidence secured in violation of the Communications Act of 1934. This evidence consisted of intercepted telephone messages, constituting ‘a vital part of the prosecution’s proof.’
6. Use of information obtained as a result of the unlawful phone tapping. Conviction followed a new trial, and the main question on the appeal below, and the only question open before the Supreme Court was whether the trial judge had improperly refused to allow the accused to examine the prosecution as to the uses to which it had put the information that the earlier case had found to have vitiated the original conviction.
7. Breach of ethical standards and destruction of personal liberty. Justice Frankfurter, delivering the opinion of the Supreme Court, noted that in the earlier case the Court found that the logically relevant proof that Congress had outlawed, it outlawed because ‘inconsistent with ethical standards and destructive of personal liberty.’ To forbid the direct use of methods thus characterized, but to put no curb on their full indirect use, would only invite the very methods deemed ‘inconsistent with ethical standards and destructive of personal liberty.’
8. The burden of proof. The initial burden on the accused. His Honour wrote:
‘The burden is, of course, on the accused in the first instance to prove to the trial court’s satisfaction that wiretapping was unlawfully employed. Once that is established -- as was plainly done here -- the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin.’
9. Mr Hunt had to prove lack of consent. In the present case the burden was on Mr Hunt to prove that his criminal record, protected ‘sensitive information’ under Queensland’s Information Privacy Act 2009, had been accessed without his consent. It was then for the Minister to prove that, even without his consent, the ‘sensitive information’ had been lawfully sought by Mr Mullan, and lawfully provided by the Queensland Police Service. The information would be otherwise inadmissible under the provisions of section 138 of the Evidence Act.
Mr Hunt’s criminal record
The Queensland Police Service record
10. Mr Mullan acquires information about Mr Hunt’s criminal history from an unidentified source. There is no evidence as to how Mr Mullan came by the disinformation from the Queensland Police Service that Mr Hunt had received a nine year custodial sentence for child sex offences in 2000: Affidavit of Peter John Corbould dated 30 April 2018, PJC-1, p. 7. But that is the information upon which he based his request to the Criminal Records Section of the Queensland Police Service on 14 September 2016: Affidavit of Mr Corbould, Annexure PJC-1., p. 7. On the evidence adduced by the Minister, there was no lawful basis for him to make the request, and no lawful basis upon which Queensland Police could accede to this casual and illegitimate request. Mr Hunt’s record was protected by Queensland’s Information Privacy Act 2009 (Qld) and its prescribed Information Privacy Principles [‘IPP’].
11. Prohibited disclosure. Under IPP 11, an agency must not disclose personal information to a third party, unless:
11.1. the individual is reasonably likely to be aware that it is the agency’s usual practice to disclose that type of personal information to the third party;
11.2. the individual has expressly or impliedly agreed to the disclosure;
11.3. the disclosure is necessary to lessen or prevent a serious threat to the life, health, safety or welfare of an individual, or to public health, safety or welfare;
11.4. the disclosure is authorised or required under law;
11.5. the disclosure is necessary for law enforcement purposes;
11.6. The Australian Security Intelligence Organisation has asked the agency to disclose the information; or
11.7. the disclosure is necessary for research or statistical purposes.
‘[E]nforcement related activity’ in section 6 of the Privacy Act
12. ‘[E]nforcement related activity under the Privacy Act. The Minister has submitted at [9] of his Further Submissions that the prohibition of the collection [sic] of sensitive information in the Australian Privacy Principles did not apply in the present case because the Department was engaged in ‘enforcement related activity’. The statutory definition in section 6 as relied upon by the Minister includes:
‘(f) the prevention, detection, investigation or remedying of misconduct of a serious nature, or other conduct prescribed by the regulations’.
13. No evidence of misconduct on the part of Mr Hunt. The Minister has led no evidence as to the misconduct, serious or otherwise, on the part of Mr Hunt, that Mr Mullan was investigating at the time directed his inquiry to the Queensland Police Service. Mr Hunt at the time held a current visa and was a lawful non-citizen. The Minister has not provided evidence of any conduct prescribed under the regulations that might call for ‘enforcement related activity’ on the part of Mr Mullan, or any other officer of the Department, either when Mr Mullan approached the Queensland Police Service seeking his criminal record, or at any subsequent time.
14. Absence of evidence. There is no evidence of the legal basis on which Mr Mullan made his inquiry of the Queensland Police Service, leading to the information that he gave to the Criminal Records Section in support of his request for a copy of Mr Hunt’s criminal record, and no evidence of the basis on which the Queensland Police Service could lawfully have provided that information.
15. The Queensland record as fruit of a poisonous tree. On the evidence the initial false information was unlawfully obtained, from which it follows that the copy of Mr Hunt’s criminal record in Queensland was fruit of a poisonous tree, and inadmissible under section 138 of the Evidence Act to support the Minister’s finding that Mr Hunt did not pass the character test under section 501(6) of the Migration Act, and to validate the cancellation of his visa under section 501(2).
The Australian Federal Police record
16. The Department’s request to the Australian Federal Police. In Ms Villarino’s request to the Australian Federal Police she claimed to ‘have formed the belief’ that the information requested was reasonably necessary for ‘detecting, preventing, investigating and prosecuting breaches of visa, immigration and citizenship law’: Affidavit of Mr Corbould dated 30 April 2018, PJC-2, p. 12. On the evidence adduced by the Minister, that belief can only have been based on the illegally obtained information emanating from Mr Mullan, and passed on to her by other officers of the Department. Further, at the relevant time, Mr Hunt, as the holder of a valid visa, was not in breach of any ‘visa, immigration and citizenship law’, and, without the illegally obtained information, there was no basis for any investigation.
The sentencing observations of the District Court Judge
17. The Minister has called no evidence as to how his Department came by the transcript of the sentencing remarks of the District Court Judge: CB pp. 20 to 23. Insofar as they record the sentence imposed upon Mr Hunt they also qualify as ‘sensitive information’. Mr Hunt denied having consented to the Minister’s access to this data: Affidavit of Lance Jeremy Vernon Hunt dated 29 March 2018 at [4] to [6]. The issue of whether it had been accessed lawfully was raised in the Outline of submissions filed and served on 8 April 2018 at [2] to [3]. The Minister has engaged with the issue in either his written or his oral submissions. In those circumstances that evidence is also inadmissible under the provisions of section 138 of the Evidence Act 1995 (Cth).
B. Breach of Australian Privacy Principles does not result in jurisdictional error in the Minister’s decision
18. The Minister’s further submissions. Although the issue raised at at the hearing was the admissibility of evidence of Mr Hunt’s criminal record, in his Further Submissions counsel claims that breach of privacy principles does not lead to jurisdictional error in the Minister’s decision, and refers to three cases in support of that submission.
74 The applicant’s submissions also address, in some detail, Goldie v Commonwealth of Australia and Others (2000) 180 ALR 609; [2000] FCA 1873; Abbasi v Minister for Immigration & Multicultural Affairs [2001] FCA 1274; and SZLWQ v Minister for Immigration and Citizenship and Another (2008) 172 FCR 452; [2008] FCA 1406.
75 The applicant’s submissions conclude:
69. Personal privacy is a right not a privilege, guaranteed by statute for all Australian residents, and a right not to be overridden by the Executive in informal arrangements reached by bureaucrats. If Mr Hunt’s sensitive data is not safe from illegitimate intrusion, nobody’s data, including health data, is safe.
70. Mr Hunt’s consent was required, but was not given.
71. If personal data is accessed unlawfully, it is inadmissible under section 138 of the Evidence Act ‘unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.’
72. The Minister has led no evidence, and made no submission in relation to the matters that may be taken into account in determining admissibility under section 138(3)(a) to (h).
73. The Minister had the power to revoke the cancellation of his visa after receiving Mr Hunt’s letter setting out his personal circumstances, a power to be exercised as a party in the proceedings commenced by Mr Hunt with regard to the provisions of section 37M of the Federal Court Act 1976, and his responsibility as a model litigant.
76 I turn now to my consideration of this privacy ground. The Privacy Act of the Commonwealth is designed to effect the regulation of privacy and the handling of personal information. The objects are set out in s 2A as follows:
The objects of this Act are:
(a) to promote the protection of the privacy of individuals; and
(b) to recognise that the protection of the privacy of individuals is balanced with the interests of entities in carrying out their functions or activities; and
(c) to provide the basis for nationally consistent regulation of privacy and the handling of personal information; and
(d) to promote responsible and transparent handling of personal information by entities; and
(e) to facilitate an efficient credit reporting system while ensuring that the privacy of individuals is respected; and
(f) to facilitate the free flow of information across national borders while ensuring that the privacy of individuals is respected; and
(g) to provide a means for individuals to complain about an alleged interference with their privacy; and
(h) to implement Australia’s international obligation in relation to privacy.
77 Part IIIB deals with privacy codes. Division 2 deal with codes of practice about information privacy, called APP codes. The act of “an interference with the privacy of an individual” is mentioned by the Act.
78 The breach of a registered APP code is also mentioned by the Privacy Act. By s 6B(1), an act or practice breaches a registered APP code if, and only if, it is contrary to, or inconsistent with, the code.
79 An “organisation” to which the Privacy Act may apply, by s 6C(1), does not pick up a State or Territory authority or a prescribed instrumentality of a State or Territory. By s 6C(3), a State or Territory authority is defined to include a Minister, a Department of State and a body established or appointed for a public purpose or under a law of a State, with some exceptions.
80 Section 26A provides that an APP entity must not do an act, or engage in a practice, that breaches a registered APP code that binds the entity.
81 Section 26C states what an APP code is.
82 The Privacy Act allows for special rules in relation to an “enforcement body”, which is defined by s 6, para (ca), to include the Immigration Department.
83 An enforcement body also means, by para (m), “another prescribed authority or body that is established under a law of a State or Territory to conduct criminal investigations or inquiries”.
84 An “entity” includes an agency or an organisation. An “agency” includes a “Department”.
85 In this case, the Minister accepts that the Department was affected by the Privacy Act and the APP. The Minister submits the Department is an “enforcement body” pursuant to (ca) of the s 6 definition. That is demonstrably correct.
86 The Department, which is also an APP entity as defined in the Privacy Act, was required by Sch 1 of the Act, cl 1.3, to have a clearly expressed up to date APP privacy policy about the management of personal information by the entity.
87 APP 3 deals with the collection of solicited personal information. APP 3.1 provides that if an APP entity is an agency (which the Department here is), it must not collect personal information (other than sensitive information) unless the information is reasonably necessary for, or directly related to, one or more of the entity’s functions or activities.
88 In this case, the particular information that the Department has collected – the criminal record of the applicant – is “sensitive information”. That is because s 6 defines that term, at para (a)(ix), to include an individual’s criminal record.
89 In those circumstances, the collection of the criminal record of the applicant by a member of the Department for use by and within the Department, including by the Minister, for the purpose of making a decision such as the impugned decision, is not the subject of the prohibition on the collection of personal information that would otherwise apply pursuant to APP 3.1.
90 APP 3.4 provides that the subclause applies in relation to sensitive information about an individual if, amongst other things:
(d) the APP entity is an enforcement body and the entity reasonably believes that:
(i) if the entity is the Immigration Department – the collection of the information is reasonably necessary for, or directly related to, one or more enforcement activities conducted by, or on behalf of, the entity; ...
91 The term “enforcement related activity”, which is also defined by s 6 of the Privacy Act, plainly covers the exercise of the power by the Minister to cancel a person’s visa in circumstances such as the present. The term is relevantly defined to include:
(f) The prevention, detection, investigation or remedy into misconduct of a serious nature, or other conduct prescribed by the regulations; …
92 I accept the Minister’s submissions in that regard.
93 I do not accept the applicant’s submission that the Minister or the Department could only obtain information where there was demonstrated “misconduct”. In context, the power to undertake activity in relation to the exercise of powers under the Migration Act to cancel a visa is well within the activity described in para (f).
94 The complaint of the applicant is not so much with this analysis of the operation of the Privacy Act and the application of the APP to the Department’s activities in requesting the applicant’s criminal record, but with the circumstances in which the Department initially became aware of the applicant and that the applicant had a criminal record; and conduct of aState of Queensland official in imparting knowledge about the applicant to a member of the Department and providing a copy of the record to that member.
95 The broad submission made is that, if it can be demonstrated that the imparting of that knowledge and the provision of the criminal record by a State official to the Department was in breach of Queensland privacy law, then the criminal record, in the hands of the Department, constituted the “fruit of the poisonous tree” such that the Court should find that the Minister was not entitled to regard the criminal record ultimately obtained from the AFP.
96 The evidence or other information surrounding the provision of information concerning the applicant’s conviction by a person employed by the State of Queensland to an official of the Commonwealth is, generally, rather hazy. It is not entirely clear how an officer of the State of Queensland came to inform an officer of the Department about the applicant’s relevant conviction. It seems, however, that armed with some awareness of a conviction further inquiries were made by the Commonwealth officer of the Department.
97 In my view, on the facts as they have been set out above, no officer of the Department acted contrary to the APP. The record of the applicant was, under the Commonwealth Privacy Act, regularly obtained.
98 The application has made submissions about the operation of Queensland privacy law to support his “poisonous fruit” argument. However, even if contravention of that law could be shown, I accept the correctness of the decision in Goldie, above, which has been considered rightly decided in Abbasi and SZLWQ. (I note that Goldie was reversed on appeal but not in relation to this question.) The result is that I cannot see any basis upon which a “poisonous fruit” argument, as put on behalf of the applicant, can apply in this instance. There is nothing to suggest that the decision made by the Minister here lacked a jurisdictional basis. I do not see any basis to conclude that the Minister’s decision was infected with jurisdictional error because of the possible breach of Queensland privacy law.
99 I should add that I do not consider that the provisions of the Evidence Act 1995 (Cth) upon which the applicant relies to claim a court has a discretion not to adduce evidence unlawfully obtained, has any application in these factual and administrative circumstances.
100 For these reasons, the first proposed ground for review by the applicant must fail.
Ground 2 – Was the Minister’s refusal to revoke the cancellation decision legally unreasonable?
101 Ground 2 states as follows:
2. The refusal of the respondent, on or before 4 October 2017, to revoke or set aside his cancellation of the applicant’s visa following the applicant’s request for reconsideration on 28 September 2017, gave no adequate reasons, failed to take account of relevant considerations, and was in all the circumstances irrational and unreasonable.
Particulars
2.1. On 20 February 2017 the respondent caused the service upon the applicant of a Notice to Consider Cancellation of his visa. The applicant did not respond.
2.2. On 25 May 2017 the respondent cancelled the applicant’s visa causing caused him to be detained in immigration detention, initially in the Yongah Hill Immigration Centre, and subsequently in the Immigration Detention Centre on Christmas Island.
2.3. On 28 September 2017 the applicant wrote to the respondent, seeking reconsideration of the cancellation of his visa, explaining why he had not responded to the Invitation of Notice of Intention to Consider Cancellation, and setting out details of his personal circumstances, together with those of his Australian partner and Australian children.
2.4. On 4 October 2017 a delegate of the respondent wrote to the applicant advising him of the respondent’s refusal to intervene, and without providing detail of his consideration of the merits of his case.
2.5. The respondent’s refusal was in the circumstances unreasonable and irrational causing the respondent to fall into jurisdictional error.
102 The applicant further addresses this ground at [35]-[41] of his outline of submissions. The applicant states that he failed to respond to the notice of intention to consider cancellation for reasons that he set out in a letter he sent to the Minister dated 28 September 2017 that addressed these issues:
his revulsion for the offences that he committed as a 16 year old;
his family background prior to the offence;
the breakdown of his relationship in Queensland at the time of his arrest and loss of contact with his daughter;
his current family arrangements in Perth with two infant children; and
his resolution to be a good father in light of his own unfortunate family history.
103 At [40], the applicant states that on 4 October 2017, a delegate of the Minister responded to his letter, referring to:
the convictions for the sexual offences and associated reporting offences in Queensland;
the notice of intention to consider cancellation and the invitation to comment, the applicant’s failure to respond, the visa cancellation and the applicant’s consequent detention; and
the applicant’s commencement of proceedings in this Court.
104 The applicant states that the delegate’s letter concludes, “[a]s you have commenced litigation the Minister will not consider intervening at this time”. The applicant notes the response makes no reference to the Minister considering his responsibilities under s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth), the natural justice requirements contained in s 501(1) and s 501(2) of the Migration Act, or the Minister’s responsibilities as a model litigant.
105 The applicant observes that the Minister cancelled his visa in May 2017 and claims that, as a result, he has been in detention for 275 days at the date of the hearing of this application just short of the nine months’ suspended imprisonment sentence he received in 2003.
106 The applicant submits that the Minister’s refusal to reconsider was in all the circumstance unreasonable and irrational.
107 The Minister submits that this ground has no merit, as a refusal to revoke or set aside the Minister’s initial decision is irrelevant to the issue of whether or not the initial decision involved jurisdictional error.
108 The Minister’s submission should be accepted. Whether or not the Minister, having made the decision the subject of this application, unreasonably refused to revoke his initial decision or to consider revoking his initial decision, does not, having regard to the decision-making processes set out in the Migration Act and the facts and the circumstances under consideration, have any bearing on the validity of the original decision made.
109 In effect, the applicant by ground 2 seeks to impugn an original decision of the Minister refusing to revoke or consider revoking the earlier substantive decision, by reference to events that have occurred since this proceeding in the Court was commenced. This makes no sense. This proceeding is not concerned with the Minister’s apparent unwillingness to reconsider his earlier decision.
110 It should be noted, in passing, in any event, that there is no separate statutory process for a person in the position of the applicant to request the Minister to reconsider the earlier substantive decision made in a case such as the present.
111 While, no doubt, any person in the position of the applicant may, in an administrative sense, ask the Minister to consider revoking an earlier substantive decision and remaking the decision, the request has a purely “administrative” character and is not one that can be relied upon as a basis for attacking the “decision” of the Minister not to act upon the request.
112 This ground has no substance and must fail.
Ground 3 – Did the Minister commit jurisdictional error by failing to regard the suspended nature of the March 2003 convictions?
113 Ground 3 states as follows:
3. In failing to take into account that the sentence of imprisonment imposed on the applicant by the District Court in Queensland in March 2003 had been wholly suspended for two years, the respondent, in cancelling his visa, failed to take that relevant consideration into account and fell into jurisdictional error.
Particulars
3.1. The respondent claimed to have suspected that the applicant did not pass the character test set out in section 501(6)(e) of the Act on the basis of the offences on which he had been convicted in the District Court in Queensland on 20 March 2003.
3.2. On all charges the applicant had been sentenced to 9 months imprisonment wholly suspended for two years.
3.3. At the time of the commission of the offences in October and December 2000 the applicant was a juvenile aged 16. Had he been charged and sentenced as a juvenile, a sentence of imprisonment was unlikely.
3.4. On 1 March 2010 he was convicted on multiple charges of failing to report, and sentenced to four months imprisonment to be served concurrently and suspended for 18 months. He has not subsequently been sentenced to a term of imprisonment.
3.5. In failing to have regard to the suspension of the terms of imprisonment on the sexual assault charges in March 2003, and to the fact that the applicant was a juvenile at the time of the offences with which he was charged, the respondent failed to have regard to a relevant consideration, reached his determination on an illogical, irrational, and unreasonable basis, and so fell into jurisdictional error.
114 The applicant contends that the Minister failed to take into account that the sentence imposed with respect to the applicant’s March 2003 convictions was suspended for two years, and that this failure rendered his decision illogical, irrational and unreasonable.
115 The applicant contends, at [44]-[47] of his outline of submissions that:
44. Reasons for the suspension of terms of imprisonment. A transcript of the proceedings had been obtained by the Department from Queensland’s State Reporting Bureau in circumstances of which there is no evidence. The trial judge noted that he was 18 and had no other convictions: CB p. 20 ll 10 to 11. The Judge noted that the Juvenile Justice Act required the court to take into account the fact that he was ‘a child at the time these offences were committed and to have regard to the sentences that might have been imposed on you if you had been dealt with as a child.’: CB: p. 22, ll. 11 to 20. He noted that no complaint was made in relation to the offence until December 2002: ‘If a complaint had been made soon after the incidents, you would have been dealt with as a child. In those circumstances it would have been open to the court to order a period of detention, it also, in my view, would have been open to the Court to order community based orders, considering your age and your history.’: CB: p. 22, ll 22 to 32. (emphasis added).
45. Prescribed relevant consideration. The ground of failure to take a relevant consideration into account will be made only when the decision-maker fails to take account of a consideration that he was bound to consider in reaching a decision. In Sean Investments Ltd v McKellar, it was held that where relevant considerations were not specified by statute, it was largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regarded as relevant, and the comparative importance to be accorded to matters that he so regarded. The decision-maker was not to be criticised for failing to consider everything that the affected party has chosen to include in an ‘exhaustive list of all the matters which the decision-maker might conceivably regard as relevant.’: at [375]. In this instance Mr Hunt made no contribution to the matters that the Minister was required to take into account. These were all self selected.
46. Considerations prescribed by logic and/or procedural fairness. Considerations may become relevant as part of a logical process of reasoning, or consideration may be required by the application of principles of procedural fairness. It was not open to the Minister to ignore evidence of suspension that was relevant to the sentencing consideration that he had determined was relevant to the exercise of his discretion. The weight to be given to such evidence would have been largely a matter for the Minister.
47. Suspension of the sentence was a relevant consideration. The Minister addressed the sentence as a relevant consideration in assessing the risk to the Australian community. Where a decision-maker selects a consideration as relevant, fairness, logic, and rationality require that all evidence relevant to that consideration be addressed. By selecting the sentence imposed as an indicator of the seriousness of the offence, and the potential risk to the Australian community if Mr Hunt retained his visa, the Minister was also required to treat the suspension of the sentences imposed as a relevant consideration.
116 In response, the Minister contends that the suspension of the applicant’s sentence with regard to his March 2003 convictions does not constitute a relevant consideration which the Minister was bound to take into account, citing the general principles discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 39-40 (Mason J); [1986] HCA 40.
117 Further and in any event, the Minister submits, it cannot be inferred that the Minister failed to take into account the suspension of the applicant’s sentence because the applicant’s National Police Certificate was provided to the Minister, along with the sentencing transcript and submissions from the Department, which showed that the relevant sentence was suspended.
118 The Minister argues that the fact the sentences were wholly suspended does not have any relevance to the risk to the Australian community, because the sentences were suspended due to the applicant being only 16 years old at the time of the offences – referring to the sentencing transcript. It is contended that the Minister specifically noted that the applicant was only 16 at the time of the offence, and he accepted that the applicant’s youth may have played a part in the offending.
119 Finally, the Minister submits that, despite the applicant’s age at the time of the offence, the conclusion was drawn that the Minister could not be satisfied there was no risk of the applicant re-offending.
120 Therefore, the Minister submits, there was no failure to take into account relevant considerations and this proposed ground must fail.
121 As may be seen from the way in which ground 3 is formulated, two grounds of judicial review arise:
(1) the Minister’s failure to take account of a relevant consideration, namely, that the sentence of imprisonment was suspended for two years; and
(2) that the failure to regard the fact of suspension of the term of imprisonment involved not only the failure to have regard to a relevant consideration but also a determination made on an illogical, irrational and unreasonable basis.
122 The first question I need to consider is whether it should be said that the Minister failed to have regard to the fact that the sentence of imprisonment for nine months was suspended wholly for two years.
123 The Minister has put forward a range of factors to suggest that the Minister plainly would have been aware of the fact that the sentence of imprisonment was a suspended one.
124 While that material existed, the question is whether the Minister actually had regard to the fact that the sentence of imprisonment was suspended for two years. In this regard, what the Minister actually stated in his written reasons for decision is critical to determining this issue, not what he may have read.
125 On what I consider to be a fair reading of the Minister’s reasons, I find the proper conclusion is that the Minister did not make his decision on the basis that the sentence for the March 2003 convictions was a suspended sentence.
126 This fact, in my view, escaped the Minister’s attention. As I have observed at [27] above, the Minister at [11] of his reasons, did not expressly state that the Court wholly suspended the sentence of imprisonment for nine months, for a period of two years. Rather, he stated without qualification:
On 20 March 2003, Mr HUNT was convicted … and sentenced to nine months imprisonment on each count.
127 That stands in stark contrast, as I have pointed out at [28] above, to the Minister’s treatment of the applicant’s convictions between 2007 and 2010 for failing to comply with reporting obligations, where he noted the suspended nature of the sentence to a term of imprisonment.
128 In short, the suspended nature of the sentence to a term of imprisonment in the latter case was expressly noted, but it was not mentioned in respect of the critical March 2003 convictions.
129 While the Minister, by his reasons, plainly understood that, at the time the offences were committed, the applicant was only 16 years of age, and had regard to the question of the applicant’s “youth” at the time of the offences, those factors do not disclose that the Minister understood that the applicant had received a suspended sentence for the March 2003 convictions, not an unqualified sentence of imprisonment.
130 If the Minister had appreciated the true nature of the applicant’s sentence for the March 2003 convictions, it is possible he may have taken a materially different view of the nature and seriousness of the relevant offences and so taken a different approach to the decision-making now challenged.
131 I conclude that the Minister made his decision on the basis that the relevant sentence was not wholly suspended for two years.
132 The next question that arises is whether this consideration – that the sentence was wholly suspended – was a mandatory one for the Minister to consider. The Minister submits it was not, and the applicant submits that it was.
133 In the recent decision of the Full Court of this Court in Hooton v Minister for Home Affairs [2018] FCAFC 142, the Court (Robertson, Steward and Thawley JJ) discussed circumstances in which a consideration of a matter may be considered mandatory, one that the Minister must take into account, when the Minister acts personally under s 501CA(4) of the Act.
134 Their Honours commenced their analysis by referring to what another Full Court said in BSJ16 v Minister for Immigration and Border Protection (2017) 252 FCR 82; [2017] FCAFC 78. In BSJ16, the Full Court referred to Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367; [2015] FCAFC 54. Moana was a case about s 501(2) of the Migration Act, as is the present case before me.
135 In BSJ16, the Court dealt with the Minister’s evaluation of whether there was a prospective danger to the Australian community should the relevant visa cancellation decision be revoked.
136 In Hooton, at [55], the Court said they did not read the reasons in BSJ16, at [28]-[32], as saying in terms that risk to the Australian community is a mandatory relevant consideration for the Minister as decision-maker. Rather, that the real point of the case was whether the Minister was under an obligation to evaluate, in a particular way, the risk of harm to the Australian community of the appellant re-offending.
137 In Hooton, the Court went on to say it was open to them to consider whether risk to the Australian community is a mandatory relevant consideration where the Minister makes a decision under s 501CA(4). Their Honours considered, at [58], that it was not such a relevant consideration, “at least in the absence of representations in response to an invitation under s 501(CA)(3)”.
138 The point of this analysis is that this Court has accepted that, in some circumstances, such as where a person has been invited to make a representation to the Minister under the Migration Act concerning a matter affecting them, and has done so, the Minister may be bound to give proper consideration to that factor. Decisions that support this proposition include Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, also discussed by the Full Court in Hooton; and Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [41] generally.
139 It seems to me equally correct to observe that where the Minister, in exercising the power under s 501(2), as here, makes a certain factor central to his or her decision-making, that that factor thereby becomes a mandatory one to be considered properly by the Minister. To make a decision on the basis of misconstruction or misunderstanding of the factual basis of that central factor may lead to a finding of jurisdictional error in the final decision made by the Minister. In such a case the “gravity” of the error made may indicate jurisdictional error. See Hossain v Minister for Immigration and Border Protection and Another (2018) 359 ALR 1 at [25]; [2018] HCA 34 (Kiefel CJ, Gageler and Keane JJ).
140 While the applicant did not make representations upon the invitation following the giving of the notice of intention to cancel his visa, the Minister plainly and clearly identified the factors he considered relevant to the decision to be made. Critically, it included the nature of the sentence the applicant received upon his sentence for the March 2003 convictions.
141 In those circumstances, where the Minister, in my judgement, misconstrued or misunderstood the nature of the sentence of imprisonment actually imposed on the applicant, the gravity of the error is, to my mind, obvious, and it must be concluded that the Minister did not make the final decision properly, by reference to a central factor that he himself made relevant to his decision, and for those reasons his ensuring decision was infected with jurisdictional error.
142 Alternatively, I accept the submission made on behalf of the applicant that, to have made his decision on the basis of that misconstruction or misunderstanding of the true nature of the sentence imposed on the applicant, the Minister’s decision was unreasonable, in the sense that it lacked a logical or evident basis. Or, put another way, the decision was illogical because the Minister critically proceeded on the basis that the sentence was of one type – custodial imprisonment – when in fact the sentence was of a different order – nine months’ imprisonment wholly suspended for two years.
143 For these reasons, ground 3 has merit.
CONCLUSION and orders
144 For these reasons, I would allow the application for an extension of time. I consider ground 3 of the applicant’s originating motion for relief to be made out.
145 I make the following orders:
(1) The application for an extension of time lodged 25 August 2017 be granted.
(2) The applicant be granted relief as sought in his proposed originating application for review of a migration decision lodged 3 April 2018.
(3) There be an order in the nature of certiorari quashing the decision of the respondent dated 25 May 2017 to cancel the applicant’s Class TY Special Category (Temporary) visa.
(4) The respondent pay the applicant’s costs of the proceeding, to be assessed if not agreed directly to pro bono counsel.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. |
