FEDERAL COURT OF AUSTRALIA

Smith v Minister for Home Affairs [2019] FCA 45

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s decision dated 16 April 2018 is set aside.

2.    The matter is remitted to the respondent for reconsideration according to law.

3.    The respondent must pay the applicant’s cost of and incidental to the proceeding, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicant seeks judicial review of a decision of the then Assistant Minister for Home Affairs (Minister). The decision is dated 16 April 2018. The Minister refused to revoke an earlier decision dated 19 June 2017 which involved the mandatory cancellation of the applicant’s Class BF transitional (permanent) visa (visa) under s 501(3A) of the Migration Act 1958 (Cth) (Act).

2    The proceeding was transferred to the Court by an order made by the Federal Circuit Court of Australia on 12 June 2018. The applicant belatedly sought leave to file and rely upon a further amended originating application, which included a further amendment to ground 2 so as to raise a claim of procedural unfairness. The Minister did not oppose any of these amendments.

3    For the reasons that follow, the Minister’s decision dated 16 April 2018 will be set aside and the matter will be remitted for reconsideration according to law.

Summary of background facts

4    Ms Smith is 52 years old. She is a citizen of the United States of America. She arrived in Australia on 30 September 1978 and has lived here ever since for approximately 40 years.

5    As noted above, her visa was mandatorily cancelled on 19 June 2017 under s 501(3A) of the Act. On 10 February 2005, Ms Smith was convicted in the Supreme Court of Queensland of a murder which took place on 26 March 2002. She was sentenced to life imprisonment. On the same day, she was convicted of burglary and sentenced to 10 years imprisonment, to be served concurrently.

6    Ms Smith appealed unsuccessfully to the Queensland Court of Appeal against her murder conviction. The High Court dismissed her application for special leave to appeal on 21 June 2006.

7    Transcripts from the proceeding in the Court of Appeal and the High Court provide some detail about Ms Smith’s offences in 2002. She had been in a relationship with the deceased but their relationship ended before 26 March 2002. She then formed a relationship with a man called Mr Michael Corry. She and Mr Corry were charged with murdering the deceased. On the Saturday prior to his murder, the deceased went to Ms Smith’s house and physically assaulted her. He also threatened to burn down her house.

8    Since 1993, Ms Smith has been convicted of a range of drug, property and driving offences. They include possessing cannabis, cultivating cannabis, unlawful use of a firearm, receiving property, possessing dangerous goods, failure to take reasonable care and precautions in respect of syringe or needle, possession of property suspected stolen or unlawfully obtained, goods in custody and breach bail granted undertaking.

9    After her visa was mandatorily cancelled, Ms Smith made representations under s 501CA(4)(a) seeking revocation of that decision. She did not dispute that she did not pass the character test (other than to repeat her claim that she is innocent of the murder conviction) as defined in s 501 of the Act. She made detailed representations as to why there was “another reason” for revoking the original decision. They included claims that Ms Smith has no family or resources in the United States; her family are unable to visit her there; she has three Australian citizen children who are all part-Aboriginal; it is culturally inappropriate to remove her from Australia on account of her children who are part-Aboriginal; her father is an Australian citizen in failing health and requires her to be his carer; she has a young grandchild who is an Australian citizen; she is not an unacceptable risk to the community and she has an unblemished prison record. She provided character references and other material in support of her representations.

10    It is desirable to set out some relevant extracts from Ms Smith’s representations as they relate to both her judicial review grounds (emphasis added):

…

I respectfully request the Character Assessment Unit to take into account the following facts which I believe indicate that I am not an unacceptable risk to the community:

 1.    I have now resided in Australia for almost thirty years.

 2.    None of the allegations infer I am habitual or compulsive.

 3.    None of the allegations are of a sexual nature.

 4.    None of the allegations involve the elderly.

 5.    None of the allegations involve illegal recreational drugs.

 6.    I have an excellent work history during my imprisonment.

 7.    I have an excellent conduct record during my imprisonment.

 8.    I have only one breach of prison discipline recorded against my name.

 9.    I have not returned any positive urine samples during my imprisonment.

 10.    There is no suggestion that I benefited by financial gain from this incident.

 11.    I do not have a drug; alcohol or gambling problem.

 12.    I have no psychiatric history whatsoever.

 13.    My father is an AUSTRALIAN CITIZEN.

 14.    I have three sons who are AUSTRALIAN CITIZENS by birth.

15.    During my imprisonment in the ACT, my father has visited me each and every week. We also have regular phone contact.

16.    It is impossible for my father to visit me in the United States due to his state of health.

 17.    I have a stable home to go to with my father.

 18.    I have a young grandchild who is an AUSTRALIAN CITIZEN by birth.

19.    I have gained qualifications in my chosen field of employment in horticulture during my imprisonment.

20.    The cultural background of my family is a critically important consideration in this instance.

21.    A properly informed and compassionate community would not expect that it is in the best interests of anyone for this family to be forcibly separated.

22.    If I was removed from the country it would be impossible for my family to leave with me and financially impossible to visit.

 23.    It is highly likely that my innocence in this matter will be proven in the future.

Minister’s statement of reasons summarised

11    The Minister provided a statement of reasons dated 16 April 2018 in relation to his decision not to revoke the mandatory cancellation of Ms Smith’s visa. He said that he was not satisfied that Ms Smith passed the character test, nor was he satisfied that there was another reason why the original decision should be revoked.

12    In respect of the latter matter, the Minister stated at [11] that he had assessed all of the information set out in the attachments to the statement of reasons and, in particular, Ms Smith’s representations and the documents she provided in support of her representations.

13    The statement of reasons is structured in a now familiar way, with the Minister explaining his reasoning under the headings “Best interests of minor children”; “Expectations of the Australian community”; “Strength, nature and duration of ties”; “Extent of impediments if removed”; “Protecting the Australian Community”; “Criminal conduct”; and “Risk to the Australian community”.

14    In the section dealing with “Protecting the Australian Community”, the Minister said at [61] that he had had regard to the consideration of the protection of the Australian community, noting in particular Ms Smith’s claim that she is not guilty of murder. Under the heading “Criminal conduct”, the Minister made reference to the transcripts of proceedings in both the Court of Appeal and the High Court, which provided more detail about Ms Smith’s offending. The Minister referred at [69] to the Court of Appeal’s opinion that it was open to the jury safely to conclude on the whole of the evidence at the trial that Ms Smith was also guilty of murder. This was because the murder was a probable consequence of the implementation of a common intention held by Mr Corry and Ms Smith that Mr Corry should enter the deceased’s home at night with a view either to robbing or assaulting him.

15    The Minister summarised the applicant’s “antecedent offending” from 1993 and correctly noted (as recorded in the National Police Certificate) that she had been convicted and fined on several occasions for drug offences, including possessing cannabis, cultivating cannabis, possessing dangerous drugs and failing to take reasonable care and precautions in respect of syringe or needle (at [70]).

16    At [71], the Minister concluded:

I find that the conviction for murder and sentence to life imprisonment is an indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious.

17    As will shortly emerge, this reasoning underpins ground 1 of the further amended originating application.

18    Under the heading “Risk to the Australian community”, at [80], the Minister said that he had noted Ms Smith’s representation that she did not have a problem with drugs, alcohol or gambling. The Minister expressly noted in [80] that Ms Smith “has a number of convictions for drug related offences one of which was for possessing dangerous drugs which occurred on 28 March 2002, some two days after the murder”.

19    The Minister said at [81] that he had considered Ms Smith’s representation that she is innocent of the offence of murder and that, therefore, she had provided no reason for her offending. The Minister then referred to the abusive relationship which Ms Smith had with the deceased and his reported threat to burn down her house.

20    After summarising Ms Smith’s representations on the issue of the risk she posed to the Australian community, the Minister concluded at [82] that there “is uncertainty surrounding the drivers of Ms SMITH’s offending, however, on balance, it appears likely to be a combination of substance abuse issues and Ms SMITH’s own experience of domestic violence”. Viewed in context, the Minister’s reference in [82] to “the drivers of Ms SMITH’s offending” in [82] clearly refers not to her criminal record generally but is directed specifically to her offending in relation to the murder and related burglary. In summary, the path of the Minister’s reasoning was that after noting that Ms Smith had several convictions for drug related offences, including possession of dangerous drugs only two days after the murder, it was likely that Ms Smith’s “substance abuse issues” was a factor which explained her conduct which resulted in her conviction for murder/burglary. As will shortly emerge, these matters are relevant to ground 2 of Ms Smith’s judicial review application.

21    At [84], the Minister noted that it had been recommended in 2005 that Ms Smith complete cognitive skills and substance abuse programs but there was no evidence that she had completed any such programs even though her safety plan recorded Alcoholics Anonymous and Narcotics Anonymous as part of her support network. The Minister also stated at [84] that he noted that Ms Smith “has no recorded incidents relating to substance issues”, which is an apparent reference to Ms Smith’s time in custody.

22    At [92] of the statement of reasons, the Minister noted that Ms Smith had made a representation that “none of the allegations… involve illegal drugs”. The Minister then stated at [93] that he accepted that Ms Smith had made progress “in addressing the substance abuse issues that have driven her offending” but that he also noted that she claimed not to have a drug problem. The Minister then added that he found “this lack of awareness increases the likelihood of her re-offending in line with her early criminal history”.

23    At [110] of his statement of reasons, the Minister said that while Ms Smith had made some progress to reform through custodial rehabilitation, he found her ongoing denial regarding her guilt for the offence of murder and her denial of any offending involving illegal substances was “indicative of her propensity to re-offend”. He found that there was a likelihood, albeit a low likelihood, that Ms Smith will re-offend and that, if she did re-offend in a similar manner, it could result in physical harm to members of the Australian community. It is well to set out [110] in full:

110.    While Ms SMITH has made some progress to reform through custodial rehabilitation, I find her ongoing denial regarding her guilt for the offence of murder and her denial of any offending involving illegal substances is indicative of her propensity to re-offend.

24    The Minister’s reasoning in this part of the statement of reasons underpins both limbs of ground 2 of the further amended originating application.

25    In his conclusion, the Minister broadly summarised Ms Smith’s representations but also stated that he gave significant weight to “the very serious nature of the crime of murder committed by Ms SMITH”. He reiterated that the Australian community could be exposed to significant harm in the event that Ms Smith re-offended in a similar fashion. The Minister then stated at [120]-[122]:

120.    I am cognisant that where significant harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Ms SMITH, than I otherwise would, because she has lived in Australia for most of her life.

121.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that while the risk of Ms SMITH re-offending is low, the harm caused by Ms SMITH is such that any risk of re-offending is too great a risk. Ms SMITH represents an unacceptable risk of harm to the Australian community and the protection of the Australian community outweighed the best interests of her granddaughter, as a primary consideration, and any other considerations as described above. These include her lengthy residence in Australia and the hardship Ms SMITH, her family and social networks will endure in the event the original decision is not revoked.

122.    Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel Ms SMITH’s visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not livened and Ms SMITH’s Class BF transitional (permanent) visa remains cancelled.

Grounds of judicial review

26    Ms Smith, who until recently represented herself, raised the following three grounds of judicial review in her initial originating application:

(a)    breach of the rules of natural justice and procedural fairness;

(b)    the decision is unreasonable; and

(c)    the Minister has not taken into account all of her personal circumstances.

27    As noted above, the hearing proceeded on the basis of a further amended originating application, which raised two grounds and which are set out below.

Ms Smith’s submissions summarised

28    Ms Smith’s outline of written submissions filed on 30 November 2018 were prepared and signed by her counsel. They addressed the following two grounds of review which were reflected in a further amended originating application filed on 18 December 2018:

29    Ground 1 is as follows (without alteration):

Ground One

1.    The Respondent Minister acted outside of jurisdiction and failed to undertake the task of jurisdiction by finding that the judge who had sentenced the applicant to life imprisonment had done so as a result of an exercise of discretion and had formed the view the offending was ‘very serious’.

Particulars

•    The Applicant was told (at [CB[42]) that the Minister would, in considering an application to revoke the visa cancellation, likely consider the nature and seriousness of her offending.

•    The Minister in considering that matter, placed weight upon the type of sentence that was imposed (imprisonment) and the length of the sentence, stating at [71], ““I find that the conviction for murder and sentence to life imprisonment is an indication of the seriousness of the offending. Dispositions involving the incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious”.

•    This finding was particularly material in circumstances where the Minister made no findings as to what role the Applicant had played in the murder, failed to take into account that the principal in the first degree had been found not guilty of murder and made no independent finding as the degree of seriousness of the offence committed.

•    In fact, the sentence of life imprisonment did not suggest that the sentencing judge had considered the offence of murder a ‘very serious’ instance of the offence. Under the Criminal Code Act 1899 the sentence of life imprisonment was mandatory and the judge gave virtually no reasons for decision.

30    Ground 2 (which was amended during the course of the hearing so as to raise an alternative claim of procedural fairness) is (without alteration):

Ground Two

2.    The Respondent Minister acted outside of jurisdiction and failed to undertake the task of jurisdiction by unreasonableness and in the absence of evidence finding (at [110]) that the Applicant had denied that she had a criminal record for offences involving illegal substances and that this was indicative of a propensity to re-offend.

Particulars

•    The Applicant was told (at CB[42]) that the Minister would, in considering an application to revoke the visa cancellation, consider the risk of her re-offending.

•    The Applicant’s visa had been cancelled explicitly on account of her sentences for murder and break and enter because the sentences exceeded 12 months and had the effect that she failed the character test (at CB[40]). Those were offences the Applicant has long denied the commission of.

•    The Applicant also had five offences over a nine-year period on her criminal involving illegal drugs (at CB[35]). All five offences were dealt with by way of fines or bonds.

•    The Applicant was provided with a copy of her criminal record by the Minister following the mandatory cancellation of her visa (at CB42]).

•    The Applicant in her submission (at CB[142] stated (my emphasis), “I respectfully request the Character Assessment Unit to take into account the following facts which I believe indicate that I am not an unacceptable risk to the community ... none of the allegations involve illegal recreational drugs”.

•    Earlier in the submission (at CB[136]) the Applicant had referred to her convictions for murder and break and enter (in respect of which guilt was denied in the submission) and then referred to her, “moderate previous criminal history”.

•    The Applicant at no point denied the contents of her moderate previous criminal record.

•    The Minister in considering that matter, stated (at CB[31]), “while Ms. Smith has made some progress to reform through custodial rehabilitation, I find her ongoing denial regarding her guilt for the offence of murder and her denial of af any offending involving illegal substance is indicative of her propensity to re-offend”.

•    The finding of a denial of drug related offending was particularly material in circumstances where it was one of two matters singled out as supporting a finding of a ‘propensity’ to re-offend.

•    The finding was based on an unreasonable interpretation of the evidence or in the alternative, no evidence at all.

•    To read the reference in the submission at CB[142] as relating to her entire criminal record is to reason that the Applicant was denying not only guilt of the drug related offences, but the very fact that she had even been accused of them. This follows from the fact the Applicant referred to none of the “allegations” involving illegal drugs.

•    No reasonable fact finder would have reached this conclusion adverse to the Applicant. Patently the Applicant was referring to the fact that the allegations the subject of the murder and break and enter offences did not involve the use of illegal drugs.

In the alternative, the Respondent Minister denied the Applicant procedural fairness.

•    “the Minister’s reasons at paragraph 110 (CB01 at 31) stated (my emphasis); “I find her ongoing denial regarding her guilt for the offence of murder and her denial of any offending involving illegal substances is indicative of her propensity to re-offend”.

•    One interpretation of this statement is that the Minister had found (in earlier paragraphs of the reasons see [80] to [82]) that the murder and related burglary matter had a nexus with drug use and that the denial by the Applicant of any drug related offending caused him to reason that she was not insightful as to the causes of that offending and therefore a higher risk of reoffending.

•    There was no material before the Minister that (directly at least) suggested that the murder/burglary offending was drug related.

•    The proposition that the murder/burglary offending was drug related was never put to the Applicant.

•    The proposition that a ‘propensity’ to reoffend might be inferred from such a denial was never put to the Applicant.

•    The conclusions were critical to the adverse decision. They were one of two matters relied upon to ground a finding of a propensity to re-offend. The risk of re-offending in turn was a key factor in the decision.

•    The conclusion that the offending was drug related was not one that was obviously reasonably open.

•    The Applicant was denied procedural fairness”

31    In support of ground 1, while acknowledging that the Minister was not bound by Direction 65, the applicant appeared initially to contend that the nature and seriousness of her past offending was a mandatory relevant consideration (but see [36] below). She emphasised the Minister’s finding at [71] of his statement of reasons:

I find that the conviction for murder and sentence to life imprisonment is an indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious.

32    The applicant contended that this paragraph disclosed “a misdirection of law” because imprisonment was not “the last resort in the sentencing hierarchy”. This was because, in the case of the applicant’s conviction for murder, it was the “only resort” in circumstances where, under Queensland law, a life sentence was the mandatory sentence for murder. Accordingly, the applicant contended that the Minister had effectively delegated the assessment of the seriousness of the applicant’s offending to the sentencing court, but in an erroneous manner. The applicant submitted that the question of the nature and seriousness of her past offending had not been properly considered.

33    The applicant sought to distinguish cases such as Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 (Huynh) at [74] per Kiefel and Bennett JJ and BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 (BSJ16). The applicant submitted that those cases involved an omission to consider a matter at a sufficient level of detail, as opposed to the applicant’s complaint here, which is that the Minister purported to take into account a consideration, but did so on what the applicant claimed was a clearly erroneous basis. The applicant contended that the error could also be characterised as involving procedural unfairness, failing to take into account a relevant consideration (namely the actual seriousness of her offending) and the taking into account of an irrelevant consideration (being the non-existent exercise of the sentencing discretion).

34    In support of ground 2, the applicant contended that an assessment of risk to the Australian community was a mandatory relevant consideration. The applicant emphasised the Minister’s adverse finding at [110] of his statement of reasons, namely that the applicant’s denial of any offending involving illegal substances was (together with her ongoing denial concerning her guilt for the offence of murder) “indicative of her propensity to re-offend”. The applicant submitted that the Minister’s reference to her “denial” in relation to illegal substances must be a reference to what she said in her representations to the Minister about this matter. As noted above, in that part of the applicant’s representations concerning the determination of the risk she posed to the community, she had said: “None of the allegations involve illegal recreational drugs”.

35    Ms Smith acknowledged that she had five drug-related convictions over a nine year period and that this was known to the Minister. She submitted that, in those circumstances, it was “errant fact finding” for the Minister to conclude that, in her representations, she was denying that she had ever been accused of drug related offending. She submitted that the only reasonable reading of the relevant representation was that she claimed that the allegations concerning her involvement in the murder/burglary were not drug-related. She submitted that there was no probative material to support the Minister’s finding that she had denied any offending involving illegal substances. The applicant submitted that this gave rise to jurisdictional error, relying on cases such as SZSFS v Minister for Immigration and Border Protection [2015] FCA 534 at [39]; SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093 at [22] per Logan J and BZC17 Minister for Immigration and Border Protection [2018] FCA 902 at [99] to [102] per Mortimer J.

36    The applicant’s supplementary submissions clarified that ground 1 did not rely on the proposition whether or not consideration of the nature and seriousness of her offending is a mandatory relevant consideration under s 501CA(4).

37    The applicant’s supplementary submissions in support of the new complaint of procedural unfairness may be summarised as follows. First, if [110] is read on the basis that the Minister proceeded on an understanding that the applicant had denied any drug related offending in her criminal record, the Court should find that the Minister acted unreasonably, irrationally and illogically because she never made any such denial and it was undisputed that her criminal record correctly disclosed several drug related convictions.

38    Secondly, if [110] is read on the basis that the Minister understood that the applicant was denying any drug related offending with specific reference only to the murder and related burglary, the applicant submitted that this involved procedural unfairness because:

(a)    there was no material before the Minister that directly suggested that the murder/burglary offending was drug related;

(b)    it was never put to her that the murder/burglary offending was drug related;

(c)    the proposition that a “propensity” to reoffend might be inferred from such a denial was never put to the applicant;

(d)    the conclusions were critical to the Minister’s adverse decision, relating as they did to the finding of a propensity to re-offend;

(e)    a finding that the offending was drug related was not one that was obviously reasonably open, thus the applicant should have been given notice of it.

39    The applicant submitted that her procedural unfairness case was supported by the Full Court’s decision in Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174 (Stowers) at [54] to [58]. She submitted that it was not reasonably apparent that the contents of the National Police Certificate, which recorded all her convictions, would be used in the way that they were.

Minister’s submissions summarised

40    It is only necessary to summarise the Minister’s supplementary submissions on the issue of procedural unfairness. His submissions on other relevant issues are substantially reflected in my reasons for rejecting ground 1 and the first limb of ground 2.

41    The Minister acknowledged that the power to revoke a cancellation decision in s 501(CA)(4) is conditioned by an obligation to afford procedural fairness, also emphasising the need to pay close attention to the statutory framework and the particular facts of the case. On the latter matter, the Minister emphasised that, unlike other cases in this area, the Minister had not taken into account information from another source which was critical, relevant and adverse to the applicant personally (as was the case in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456). The Minister also emphasised that the applicant had been put on notice that one of the issues that may be critical to the Minister’s non-revocation decision was the applicant’s risk to the Australian community and the risk of her re-offending. She was also provided with a copy of the National Police Certificate.

42    The Minister submitted that it was the applicant herself who raised the issue of whether there was a connection between her offending and her drug use and the Minister was not required to raise that issue with her again. He added that, given the close temporal conclusion between Ms Smith’s drug offending and her offences of murder and burglary, there was probative evidence for the Minister’s conclusion, on this construction of his statement of reasons, that the matters were related and there was no obligation on him to disclose his mental process to Ms Smith. The Minister also submitted that Stowers is distinguishable.

Consideration and determination

(a) Ground 1

43    As noted above, the applicant’s primary complaint is that the Minister erred in his consideration of the nature and seriousness of her offending. This was because the Minister failed to appreciate that the effect of s 305 of the Criminal Code Act 1899 (Qld) is that a life sentence is effectively a mandatory sentence upon a conviction for murder and thus the sentence itself did not reflect the Court’s own assessment of the seriousness of the offending.

44    I accept the Minister’s submission that the applicant has mischaracterised the relevant part of his reasons. The Minister made a personal determination that “the offence of murder is very serious” ([62]). The Minister then made reference to the circumstances surrounding the murder in the light of comments recorded in Court transcripts or reasons for judgment. Ultimately, the Minister then concluded that “the conviction for murder and sentence to life imprisonment is an indication of the seriousness of the offending” ([71]). This reasoning was sufficient to justify the Minister’s conclusions concerning the seriousness of the applicant’s murder conviction.

45    Moreover, as the Minister pointed out, the reference at [71] of the statement of reasons to incarceration being the “last resort” in the sentencing hierarchy is accurate, whether the incarceration occurs by operation of mandatory sentencing legislation or by the exercise of judicial discretion.

46    Some additional points should be made. First, in circumstances where the applicant made no representation to the Minister concerning the operation of mandatory sentencing legislation, it is unlikely that the Minister was required to take that matter into account (see Hooton v Minister for Home Affairs [2018] FCAFC 142 at [64]-[66] and Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 (Maioha) at [33] per Rares and Robertson JJ).

47    Secondly, the applicant’s reliance upon Direction 65 is misguided in circumstances where the Minister is not bound by the Direction. In any event, the Minister plainly did consider the nature and seriousness of the applicant’s offending.

48    Thirdly, the applicant incorrectly submitted that the Minister had effectively delegated the assessment of the seriousness of her offending to the sentencing judge or the Court of Appeal. As noted above, the Minister came to his own view on this matter and, in doing so, it was open to him to take into account findings and observations by those Courts.

49    Fourthly, to the extent that the applicant submits that the Minister failed to give proper consideration to the nature and seriousness of her offending, she has not demonstrated that this matter was not considered in “reality”, applying the preferred approach of Rares and Robertson JJ in Maioha at [45].

50    Finally, having regard to the findings above and the applicant’s confirmation in her supplementary submissions that ground 1 did not turn on whether the nature and seriousness of her offending was a mandatory relevant consideration, it is unnecessary to determine that question. Whether or not it is so characterised, the Minister did take the consideration into account in the relevant legal sense.

51    For these reasons, ground 1 is rejected.

(b) Ground 2

52    Having regard to the amendment which was made during the course of the proceeding, this ground now has two limbs. The first relates to legal unreasonableness. The second alternative limb relates to procedural unfairness. It is convenient to deal with each of those limbs in turn. Both limbs turn on how the Minister’s statement of reasons are to be read, particularly [110].

(i) Legal unreasonableness

53    In essence, the applicant complains that the reference in [110] of the Minister’s statement of reasons to the applicant’s “denial of any offending involving illegal substances” was legally unreasonable because there was no basis for finding that the applicant had made any such denial.

54    Resolution of this ground turns upon whether or not the Minister proceeded on the basis of a reasonable reading of the relevant part of the applicant’s representations, as well as a proper reading of the Minister’s statement of reasons. Having regard to the statutory scheme and the importance of the opportunity afforded to a former visa holder to make representations to the decision-maker as to why there is “another reason” to revoke the mandatory visa cancellation, the Minister’s consideration of those representations, fairly read, will be at the heart of the Minister’s decision-making process. Thus, it has been said that the representations as a whole are a mandatory consideration but caution is required in reviewing the Minister’s reasons with the aim of detecting the absence of any weight being given to a particular aspect of the representations (see Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56] per Robertson J, Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [42] per Flick J and Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 (Hands) at [39] per Allsop CJ, with whom Markovic and Steward JJ agreed).

55    The Minister’s statement of reasons must be read in context, including the reasons as a whole, and not be construed with an eye attuned to the detection of error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 (Wu Shan Liang) at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ and, more recently, in Maioha at [70] per Flick J). The reasons should be read in a reasonable, practical and common sense manner which takes into account their central role in the statutory scheme to which they relate, including the role they play in holding the decision-maker accountable for the important and grave decision which is made under s 501CA(4) of the Act (see Allsop CJ’s observations in Hands at [3]).

56    The applicant contended that the relevant part of her representations could only be read as saying that the allegations against her relating to the murder did not involve illegal recreational drugs, rather than being read as a denial by her that none of her convictions since 1993 involved illegal recreational drugs. The applicant contended that the Minister’s statement of reasons should be read on the basis that the Minister had seriously misinterpreted the relevant representations and read them as though the applicant was denying that any of her past offending involved illegal substances. The Minister contended that [110] of his statement of reasons should be read on the basis that he reasonably understood that Ms Smith was denying that any of her past offending involved illegal substances, but this reading of her representations did not give rise to irrationality or illogicality on the Minister’s part.

57    For the following reasons, I consider that [110] should be read on the basis that the Minister understood and was responding to Ms Smith’s claim in her representations that her conviction for murder/burglary was not drug related.

58    First, in accordance with the approach in Wu Shan Liang, the Minister’s reasoning at [110] should be read fairly, in the light of the reasons as a whole and in a manner which properly takes into account the significance of the fact that the Minister was plainly responding to Ms Smith’s own representations as to why she was not an unacceptable risk to the Australian community.

59    Secondly, in her representations, Ms Smith pointed to 23 matters as to why she believed she was not an unacceptable risk to the community (see [10] above). Some of the matters she raised were unrelated to her criminal record, such as the length of her period of residence in Australia and her family relationships. Four of the matters raised by Ms Smith referred to “allegations”, including her statement that none of the allegations involve illegal recreational drugs. Although it is not entirely clear, it appears that Ms Smith used the word “allegations” because it was consistent with her continuing denial of guilt for the murder, a matter which she emphasised in the last of the 23 points she made in this part of her representations.

60    Thirdly, [110] should be read in the light of the statement of reasons as a whole and, in particular, in the context of the Minister’s lengthy analysis of whether Ms Smith posed an unacceptable risk to the Australian community. It is especially significant that, earlier in this section of his statement of reasons, the Minister summarised Ms Smith’s representations on this topic and then gave his response to the matters she raised. It was in this context and the Minister’s awareness of Ms Smith’s ongoing protestation of her innocence of murder that the Minister turned his mind to the possible reasons for her conduct that gave rise to that conviction. This then led the Minister to conclude at [82] that the “drivers” of Ms Smith’s offending (with apparent reference to the murder), while uncertain, appeared to the Minister likely to be a combination of substance abuse issues and her own experiences of domestic violence. The reference to “substance abuse issues” may refer back to what the Minister stated in [80] of his reasons, namely that Ms Smith had a number of convictions for drug related offences which included a conviction for possessing dangerous drugs on 28 March 2002, only two days after the murder. Fairly read, the Minister did not make a finding that Ms Smith’s conviction for murder included a finding in the criminal proceeding that her conduct on that occasion was drug related. Rather, the Minister turned his own mind to possible explanations for that behaviour and came to the tentative view that it was likely to have involved drugs for the reasons he gave. This was in the context of the Minister responding to what he perceived to be Ms Smith’s denial that her conviction was drug related. These matters then informed the Minister’s assessment of the risk of Ms Smith re-offending.

61    Having regard to these earlier paragraphs of the Minister’s statement of reasons, I consider that, fairly read and in context, [110] formed part of the Minister’s response to Ms Smith’s representation that there was no allegation made against her in relation to the murder that her conduct involved illegal drugs. In effect, the Minister proceeded on the basis that Ms Smith was denying that her conduct there was drug related.

62    Turning now to the applicant’s claim under the first limb of ground 2, this claim must fail. That is because, on a proper reading of [110], the Minister was not referring to the applicant’s criminal record in its entirety, but was rather focusing on that part of her representations which the Minister understood to say that no allegation had been made against her that the murder was drug related.

63    For completeness, even if [110] were read more broadly, as referring to the entirety of Ms Smith’s criminal record, I would not have found that this reveals illogicality, irrationality or legal unreasonableness or, indeed, demonstrates that the Minister made a finding in the absence of supporting probative material. The Minister was entitled to conclude as he did, having regard to his earlier findings that the applicant had failed to recognise the role of illegal drugs in her past offending, that substance abuse issues were likely to be a driver in her offending, that there was no evidence that she had completed any substance abuse programs despite the recommendation of Queensland Correctional Services, and the applicant’s claim not to have a “drug, alcohol and gambling problem”. Moreover, as explained above, fairly read, I do not consider that the Minister proceeded on the basis that there had been a finding in the criminal proceeding that Ms Smith’s involvement in the murder was drug related. There was no evidence of any such finding. Rather, as is made clear in [82], the Minister stated that this offending appeared to him, on balance, likely to be a combination of substance abuse issues and Ms Smith’s own experiences of domestic violence. There was probative evidence to support that tentative view, not the least in the fact that Ms Smith had been convicted of possessing dangerous drugs on a day which was only two days after the murder.

64    In addition, given the ambiguities in this part of Ms Smith’s representations (including what she meant by the word “allegations”), it was not unreasonable or illogical for the Minister to read the material and deal with it as he did. It is difficult to see how such ambiguities could ground a finding of legal unreasonableness or illogicality on the Minister’s part, bearing in mind the limited nature of these grounds of review, as emphasised, for example, in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) at [130]-[131] per Crennan and Bell JJ. It is important that these grounds not be permitted to draw the Court into an impermissible review of the merits of the matter. As Wigney J observed in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [56], assertions of illogicality and irrationality can too readily be used to conceal what is simply an attack on the merits of relevant findings and decision (as approved recently by the Full Court in DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [79] per Collier, Middleton and Rangiah JJ and see also Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] per Perram, Murphy and Lee JJ).

(ii) Procedural unfairness

65    As noted above, the applicant’s procedural unfairness case turns on [110] of the Minister’s statement of reasons being understood on the basis that the Minister read the applicant’s representation as involving a denial on her part that drugs were involved in her conviction for murder/burglary. That is the way which I consider the Minister’s statement of reasons should fairly be read.

66    For the following reasons, the applicant’s complaint of procedural unfairness should be upheld.

67    It was common ground that procedural fairness requirements apply to a decision made under s 501CA(4) of the Act (see Stowers at [37]-[40] per Flick, Griffiths and Derrington JJ). The critical issue which falls for determination in the particular facts and circumstances of this case is whether procedural fairness required the Minister to disclose to the applicant for comment the possibility that he might find that the murder/burglary offending may have been drug related and that it might be inferred from what the Minister viewed as her denial in this regard that she had a propensity to re-offend.

68    The relevant principles are relatively clear. More controversial is how the principles should be applied to the particular facts and circumstances of this case.

69    It is well settled that a decision-maker is not required to give a running commentary or “expose his or her mental processes or provisional views” (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 592). A decision-maker is, however, required to identify for the person affected “any critical issue not apparent from the nature of the decision or the terms of the statutory power” and advise of any adverse conclusions “which would not obviously be open on the known material” (see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 (SZGUR) at [9] per French CJ and Kiefel J). Although those observations in SZGUR related to decision-making by the then Refugee Review Tribunal, I consider that they are equally applicable to decision-making under s 501CA(4) of the Act.

70    It is important also to note the Full Court’s following observations in Alphaone at 590-591 (emphasis added):

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: Dixon v Commonwealth (1981) 55 FLR 34 at 41. However, as Lord Diplock said in F Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:

...the rules of natural justice do not require the decisionmaker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished.

71    The emphasised words in the extract above from Alphaone were expressly approved by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL) at [32] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Their Honours also emphasised the need for “considerable care” in applying a dichotomy between conclusions which are not obviously open on the known material and the mental processes of decision-making (see SZBEL at [31] and the further observations of the Full Court on this matter in Stowers at [40]).

72    It is also well settled that the requirements of procedural fairness are to be determined by reference to the statutory framework within which a decision-maker exercises a relevant power and that “the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case” (SZBEL at [26], citing Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504).

73    The following observations of the Full Court in Stowers at [43] and [44] are pertinent, noting that they are also directed to decision-making under s 501CA(4) of the Act:

43.    As the brief analysis of relevant caselaw above indicates, it is well settled that the statutory context, and the particular facts and circumstances, are important in determining whether or not there has been procedural unfairness. In some instances, procedural fairness does not require a decision-maker to put to an affected person every piece of information the decision-maker will consider. It may be sufficient merely to put the substance of the material to the person (see, for example, Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223).

44.    The underlying purpose of the requirements of notice or disclosure as aspects of procedural fairness is another important consideration. It is to provide an opportunity for meaningful participation by the potentially aggrieved person and to enable the person fairly to respond to adverse matters. As the Full Court observed in Traill v McRae [2002] FCAFC 235; 122 FCR 349 (Sackville, Kenny and Allsop JJ) at [134], what constitutes adequate notice of a matter and when it should be provided is to be decided by reference to the circumstances of the case in question and is directed to enabling the affected person “fairly to respond”. In our view, those observations apply equally to disclosure.

74    Each case necessarily turns on its own particular facts and circumstances but helpful general guidance as to the nature and extent of the required disclosure of the matters which may be critical to a decision is also provided by the Full Court’s statement in Stowers at [49], i.e. that advice or notification of such critical factors must be “practical, direct and non-misleading”.

75    The reasons why the Full Court in Stowers held that Mr Stowers had not been given practical, direct and non-misleading advice about the factors which were critical to the decision under s 501CA(4) to not revoke the mandatory visa cancellation which affected him may be summarised as follows:

(a)    although Mr Stowers was aware from the relevant parts of Direction 65 that a primary consideration was to protect the Australian community, he was at the same time provided with a State Certificate which recorded part of his criminal record, but none of that record suggested that he had a disregard for the law or judicial orders;

(b)    several months later, Mr Stowers was provided with a National Police Certificate and the remarks of both the sentencing Magistrate and the District Court Judge on appeal in his case, but his attention was not drawn to any particular aspect of that material which might be relied upon by the Minister in concluding that he had shown a disregard for judicial orders;

(c)    it was not reasonably apparent on the face of that additional material that the Minister might use part of the material in the way that he did; and

(d)    practical injustice flowed from the Minister’s failure to provide Mr Stowers with the particulars of critical matters which the Minister then relied upon in rejecting Mr Stowers’ revocation request.

76    The importance of paying close attention to the particular facts and circumstances, as well as the relevant statutory context, is well illustrated not only by Stowers, but also by another Full Court decision in Durani v Minister for Immigration and Border Protection [2014] FCAFC 79; 314 ALR 130 (Durani). There, the Minister exercised his personal power under s 501A(2) of the Act to set aside a decision of the Administrative Appeals Tribunal (AAT) which had reversed a delegate’s decision to cancel Dr Durani’s visa under s 501(2) of the Act. The visa was cancelled by the delegate after Dr Durani was convicted of several sexual offences against a female patient and was sentenced to more than two years’ imprisonment. The Minister gave notice to Dr Durani that he intended to consider whether to set aside the AAT’s decision and cancel his visa on the basis that it was in the national interest to do so. Dr Durani made submissions as to why that should not occur. In explaining why he set aside the AAT’s decision, the Minister found that, having regard to the sexual offences, Dr Durani had brought Australia’s skilled migration program into disrepute and had undermined public confidence in the integrity of that program.

77    The Full Court accepted that the concept of the “national interest” is a broad criterion. It was necessary, however, to descend to a particular level of detail to determine whether or not it was procedurally unfair for the Minister to take into account specific aspects of the national interest without putting Dr Durani on notice that those aspects might be relied upon in the way that they were. The Full Court stated at [67]:

67    … As we have said, the criterion of “national interest” is a broad one. That means it may be necessary for the Minister to permit the visa holder, in circumstances such as the present, to make submissions about a particular aspect of the national interest which the Minister may be going to take into account in assessing whether or not he is satisfied that cancellation of the visa is in the national interest.

78    The Full Court held that characterising Dr Durani’s criminal convictions as bringing the skilled migration program into disrepute and consequently undermining public confidence in that program were matters which were not apparent from the nature of the decision or the terms of the relevant statutory power. The Full Court said at [69]:

69    In our opinion it is not sufficiently apparent from the facts and circumstances of the case and the statutory criterion that where criminal convictions stem from the skill or qualification by reference to which a visa was granted, those criminal convictions will bring the skilled migration program into disrepute or undermine public confidence in it or undermine its integrity or that cancellation of the visa would, or would tend to, restore that reputation or public confidence in the migration program or its integrity. Further, the appellant had not made submissions on that topic.

79    Durani was applied by Buchanan J in Jione v Minister for Immigration and Border Protection [2015] FCA 144; 232 FCR 120 (Jione) in setting aside a Ministerial decision under s 501A(2)(e). His Honour held that it would not have been obvious to the applicant there that the past economic consequences of his conduct or the possible future economic costs to the community of some future offending would be taken into account by the Minister as relevant to his assessment of the “national interest”. Both Durani and Jione involved findings of procedural unfairness in the context of Ministerial decision-making in which the context of the “national interest” was centrally relevant. The statutory context here is different inasmuch as there is no explicit reference in the terms of s 501CA(4) to the national interest. However, it should not be overlooked that the concept of the national interest is part of the broader statutory context having regard to the terms of the statement of object in s 4(1) of the Act. The parties availed themselves of the opportunity provided by the Court to make brief further supplementary submissions on the potential relevance of Durani and Jione.

80    Of course, it is not appropriate to proceed simply by way of a comparison between the facts and circumstances here and those in other authorities, including Stowers, Durani and Jione (noting also of course the different statutory context in the latter two cases). I shall now explain why I consider that there was procedural unfairness here.

81    Ms Smith was aware from the terms of Direction 65 that a potentially important issue to the decision to be made under s 501CA(4) was the seriousness of her prior offending and the risk of her re-offending. Indeed, the relevant part of her representations expressly addressed why she said that she was not an unacceptable risk to the community.

82    For the reasons given above, the Minister reasonably understood Ms Smith’s statement that none of the “allegations” involve illegal recreational drug were directed to her murder/burglary conviction.

83    There was no direct evidence before the Minister which was inconsistent with Ms Smith’s statement of fact concerning those allegations.

84    The Minister viewed Ms Smith’s assertion of fact as amounting to a denial on her part that her murder/burglary offending was drug related.

85    This “denial” was relied upon by the Minister, together with Ms Smith’s denial concerning her guilt for the murder, as being indicative of her propensity to re-offend.

86    For the reasons set out in [80] and [82] of the statement of reasons, the Minister found that, although there was uncertainty about the “drivers” of Ms Smith’s murder/burglary offending, on balance it appeared to the Minister that it was likely a combination of substance abuse issues and Ms Smith’s past personal experiences of domestic violence.

87    It was open to the Minister to adopt this path of reasoning but, if he did, he needed to comply with procedural fairness requirements. Merely because a finding or decision is legally reasonable and rational does not mean that it was arrived at by a process of decision-making which meets procedural fairness requirements. In my view, applying the approach in Stowers as to whether in all the circumstances Ms Smith had been given practical, direct and non-misleading advice (or notice) as to the factors which might be critical to the Minister’s decision, this did not occur. Although Ms Smith herself drew the Minister’s attention to her assertion that, as a matter of fact, the allegations against her concerning the murder conviction were not drug related, she could not reasonably have anticipated that the Minister would characterise her assertion of fact as a denial on her part that drugs were involved, that he would come to his own view on that matter notwithstanding that there was no finding in the criminal proceeding that drugs were involved, nor that the Minister would proceed to use the denial which he attributed to Ms Smith as part of his reasoning as to why he considered that there was a risk that Ms Smith might re-offend. It may have been open to the Minister to come to his own view on these matters, based on the material before him, but procedural fairness required that Ms Smith be given a prior opportunity to comment on those matters. She was denied that opportunity because nothing in the material which she was given or the statutory scheme itself adequately disclosed that the Minister might approach the decision-making process in the way that he did. In the particular circumstances, the denial of procedural fairness is itself the source of practical injustice to Ms Smith (see Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [82] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ and Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [60] per Gageler and Gordon JJ).

88    For completeness, I would add that the reasons given above as to why there was procedural unfairness would apply equally even if [110] of the Minister’s statement of reasons were read more broadly and covered all of Ms Smith’s offending. The all-encompassing reference there to “any offending” must also include a reference to the offending which gave rise to the murder/burglary convictions.

Conclusion

89    For these reasons, the decision dated 16 April 2018 should be set aside and the matter should be remitted for reconsideration according to law. The Minister must pay Ms Smith’s costs.

Associate:

Dated:    29 January 2019