FEDERAL COURT OF AUSTRALIA

Hempenstall v Minister for Home Affairs [2020] FCA 686

ORDERS

THE COURT ORDERS THAT:

1.    The further amended originating application for review be dismissed.

2.    The applicant pay the respondent’s costs of the application as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an application for judicial review of a decision made by the respondent Minister to cancel the applicant’s Class BF transitional (permanent) visa under s 501(2) of the Migration Act 1958 (Cth).

2    By a further amended originating application for review, the applicant seeks an order quashing the Minister’s decision and an order that he be released from immigration detention upon the ground that the Minister failed to afford the applicant natural justice (or procedural fairness is it is now more commonly known). The following particulars accompanied this ground:

Particulars

Impediments to Return

(a)    In responding to the Respondent’s Notice of Intention to Consider Visa Cancellation, the Applicant listed his citizenship as “Unknown”.

(b)    In documents provided to the Respondent in respect of the Applicant’s previous travel to and from Australia, the Applicant had been identified as a     citizen of Ireland. This document was not provided to the Applicant.

(c)    The Decision identifies the Applicant’s country of citizenship as the United Kingdom.

(d)    The Decision makes findings as to the impediments the Applicant would face if removed from Australia in respect of prospective removal to the United Kingdom.

(e)    The Respondent did not inform the Applicant of its conclusion that the Applicant was a citizen of the United Kingdom.

(f)    The Respondent did not afford the Applicant an opportunity to respond or make comments upon the Respondent’s conclusion that the Applicant was a citizen of the United Kingdom.

(g)    The Respondent’s failure to make disclosures or accord opportunities for comment (as set out in (e) and (f) above) amounted to jurisdictional error.

Risk of further drug use

(h)    The Minister relied on the possibility that the Applicant could abuse substances in the future as the basis for finding that the Applicant may re-offend in the future.

(i)    This was a critical finding.

(j)    Fairness required the Minister to notify the Applicant of this potential adverse conclusion and give the Applicant a real opportunity to comment on it in circumstances where:

a)    The finding was not an obvious and natural conclusion to draw from the material provided.

b)    The sentencing remarks relied on by the Minister were to the effect that ‘significant gains’ had been made with the psychologist but ‘treatment concerning substance abuse [was] still in the early stages’.

c)    The Applicant’s evidence was that he had sought help from a psychologist every fortnight for 10 months after being charged and had only stopped the treatment once satisfied that he ‘understood the consequences of [his] actions and behaviours’.

d)    The letters of support suggested that the counselling had assisted the Applicant.

e)    There was nothing following the sentencing remarks that would suggest that the Applicant might engage in substance abuse.

(k)    The Respondent’s failure to make disclosures or accord opportunities for comment (as set out in (h) to (j) above) amounted to jurisdictional error.

3    For the reasons stated below, I would dismiss the application, with costs.

Background

4    The applicant was born in London and was just 3 years of age when he arrived in Australia in 1971. He has been resident in Australia ever since then.

5    On 17 September 2012, the applicant, then in his mid-forties, was convicted in the County Court of Victoria of three offences relating to child pornography: using a carriage service for child pornography material (charge 1); possess child pornography (charge 2); and use of carriage service to transmit child pornography material (charge 3). The applicant was sentenced to imprisonment for 12 months on charge 1, and to imprisonment for three months on each of charges 2 and 3. He received a total effective sentence of thirteen months’ imprisonment, to be released on a recognisance release order, to be of good behaviour for 10 months, after serving 3 months of the total effective sentence.

6    In sentencing the applicant in September 2012, the sentencing judge made a number of remarks about the applicant that bear on issues arising in this application, including the following:

8    In 1985 you received a good behaviour bond for cannabis use. In itself this is of no relevance but it does reflect your acknowledged long term dependence on cannabis. Although not alleged against you the tendered material notes that at some stage you lost your licence for exceeding the permitted blood alcohol concentration. Once again this is not relevant in itself but is also reflective of your acknowledged alcohol dependence.

    …

12     You are currently 44 years old. You had a difficult upbringing having been abandoned by your father when you were 9 leaving your mother to struggle to raise you and your sister until she re-partnered about 7 years later. You described your father as very strict, aloof and on occasion frightening. You have a good work history and until recently were employed in a responsible managerial position which you found stressful.

13    Charges 1 and 2 occurred between 22 July 2011 and 21 March 2012 although you have admitted accessing child pornography over a longer period. During     the period of the charged offending you were under stress, drinking to excess,     in financial trouble and your relationship with your fiancée was deteriorating.     You had been with your partner for over 5 years and she left you shortly before     your arrest. Your partner wanted greater commitment from you.

14    It was noted in discussion that aspects of your personal profile are common to child pornography offenders. You have suffered low mood and anxiety for some time. Underlying these issues, according to Dr Thomson, poor coping skills resulting in problems avoidance and substance abuse led to excessive     internet use, including accessing child pornography for sexual gratification and mood enhancement ….

15    Your counsel sketched aspects of your background seeking to explain why you might have had difficulty forming satisfying relationships with others; why you had been self-centred and why you drank to excess and spent so much time     online, isolating yourself from others. I am prepared to accept that your upbringing has played a part in all this. I accept that the offending occurred in the setting of work pressure, financial stress, and relationship difficulty. At this time your life revolved around work, alcohol abuse and the internet.

    …

18    You have made significant efforts to rehabilitate. I was told that your relationship may yet be reconciled. You have recently taken a redundancy package and intend to seek less stressful employment. Put succinctly, your counsel said once caught you acknowledged you had done wrong, determined to do something about it and you have made good progress to date.

    …

21    You have substance abuse problems which, although moderated, still need to be addressed. Your offending has occurred in the setting of cannabis and alcohol abuse. At times your substance abuse was such that you could not recall your online activities.

    …

24    You have engaged in treatment very well, you have been open, applied yourself conscientiously, been receptive to feedback and willing to examine your intentions and underlying motivations. You have developed a broad range of strategies to assist mood regulation and manage mental health. You have acknowledged many of the factors that contributed to your offending and have developed skills to deal with these factors. … You told [Dr Thomson] that you are no longer interested in sexualising children and found the thought repulsive.

25     … In short, you have made good progress and have made significant gains however more treatment is needed generally to develop and consolidate the  gains you have made. Additionally, treatment concerning substance abuse is still in the early stages and intimate relationship problems have yet to be addressed.

26    There are a number of positive factors identified by Dr Thomson that will facilitate treatment and provide optimism for further rehabilitation. For  example, contact with the criminal justice system has had deterrent value and you do not have any antisocial personality disorder, antisocial peer group or antisocial attitudes. Furthermore, your work history, good intelligence and rehabilitative progress to date are positive factors.

7    Section 501(2) of the Migration Act confers on the Minister a discretion to cancel a visa if the Minister reasonably suspects that the visa-holder does not pass the “character test” (as defined in s 501(6)), and the visa-holder does not satisfy the Minister that he or she passes that test. Under s 501(6)(a), a visa-holder does not pass the “character test” if he or she has “a substantial criminal record”. For these purposes, “a substantial criminal record” is defined in s 501(7) to include “if … the person has been sentenced to a term of imprisonment of 12 months or more”: see s 501(7)(c).

8    The 12-month sentence imposed on the applicant in September 2012 for using a carriage service for child pornography material had the capacity to enliven the discretion in s 501(2) of the Migration Act. On 1 June 2017, the Department notified the applicant of the Minister’s intention to consider cancellation of his visa under that provision (June 2017 Notice). A Departmental officer advised the applicant that:

The Department of Immigration and Border Protection holds information about your criminal history listed at the end of this notice, which indicates that you have a substantial criminal record within the meaning of s 501(7) of the Migration Act, and that as a result you do not pass the character test by virtue of s 501(6)(a) of the Migration Act.

…

Before the decision-maker considers whether to cancel your visa, you have an opportunity to comment or provide information on whether you pass the character test and, should the decision-maker reasonably suspect that you do not, on whether the decision-maker should exercise his or her discretion to cancel your visa.

…

If the decision-maker is a delegate of the Minister, they must follow Direction 65 – Visa Refusal and Cancellation under s501. Direction 65 is enclosed for your information. If the Minister makes a decision personally, he or she is not required to give consideration to Direction 65, though it provides a broad indication of the types of issues that he or she may take into account.

Read Direction 65 carefully. As you hold a visa you should address each paragraph in PART A that is relevant to your circumstances. You can provide any other information that you feel the decision-maker ought to take into account and you can provide letters of support from your family, friends, employer or others if you wish.

…

Enclosures

•    Personal Circumstances Form

•    Acknowledgement of Notice under Section 501 and Authority to Release Information

•    Frequently Asked Questions

•    Advice by a migration agent/exempt person of providing immigration assistance (Form 956)

•    Appointment or withdrawal of an authorised recipient (Form 956A)

•    Information about legal aid assistance in Australia

•    Attachment 1: character related legislation of the Migration Act and Migration Regulations

•    Attachment 2: general information

The following documents are also enclosed. The documents consist of information that is held by the Department, which the decision-maker may rely on to decide whether you pass the character test; and if not, whether your visa should be cancelled.

•    Ministerial Direction 65

•    Information about your criminal history, as shown on documentation provided by the Australian Federal Police, using state records. This document cannot be released to you in its original form, but the information it contains is used to prepare another version of your criminal history, the National Police Certificate. Your National Police Certificate dated 29 March 2017 is enclosed.

•    Sentencing remarks of the County Court of Victoria on 30 August 2012

(I interpolate here that the sentencing judge in fact imposed sentence on 17 September 2012, although the matter was heard on 30 August 2012.)

9    The applicant responded to the Department’s notice on 21 July 2017. He provided a completed personal circumstances form dated 16 July 2017, stating that his place of birth was “London, England” and that his citizenship was “unknown”. In completing the form, the applicant also gave details of his family, including the details that his mother and sister had “Irish” nationality and identified a large number of uncles and aunts, nieces and nephews and cousins in “Ireland/England”. No information was provided about the citizenship or status of the applicant’s biological father. The applicant further stated:

My family are shocked by this process as like myself, we were unaware of having a visa to live in Australia.

10    The form also gave other information about the impact of his visa cancellation on his family, his criminal history and his risk of reoffending, his employment, and the impediments he faced if returned to his country of origin. He also provided letters in support from his family members (his mother, sister, and stepfather), a long-standing friend, an employee and a business associate, and an email from a charitable organisation.

11    In response to the question “Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?”, the applicant stated:

While there are no excuses, I went through a very low point in my life with the breakdown of my relationship. I turned to drugs and alcohol to suppress my anxiety and depression which dragged me to a further low point. I withdrew from friends + family and find [sic] myself addicted to Internet pornography. This behaviour spiralled further out of control until I reached the lowest point which led to my arrest and consequent prison term.

12    In response to the question “Have you completed any courses or programs that will help you to avoid further offending and to make a positive contribution to the community?” the applicant stated:

Soon after my arrest I sought professional help from a psychologist to help me to understand my behaviour. I continued this treatment every fortnight for 10 months until I was satisfied that I fully understood the consequences of my actions and behaviours.

13    The applicant further stated, in the field labelled “Any other information”:

Apart from the initial crime and a misunderstanding with my reporting duties, I have so far proven to be a positive role model in my community, leading by examples of hard work and persistence.

I have re-built my life and proven that you can learn by your mistakes.

14    The applicant also returned an “Acknowledgement of Notice under s 501 and Authority to Release Information” form dated 16 July 2017 concerning the release of his criminal, psychiatric, medical and parole history to the Department.

15    Before making the visa cancellation decision challenged in this proceeding, the Minister was provided with a copy of the June 2017 Notice, the applicant’s completed personal circumstances form, the letters of support that had been provided by his family and others, business registration information concerning the applicant’s business, his National Police Certificate dated 4 January 2018, and the sentencing remarks of the sentencing judge in September 2012.

16    In her letter of support, the applicant’s sister concluded with the statement that:

My brother and I have only ever known Australia, we do not have any family connections what so ever in the United Kingdom. Our direct family unit here in Australia is only of myself, my mother and my 2 children. To discontinue his residency would have a devastating impact on us all.

The applicant’s mother said:

Our family is very small and close … We have lived in Australia for 46 years and no longer have any connections with Ireland or the UK.

17    In addition to the documents mentioned at [15] above, the Minister was also given documents described as the applicant’s “movement records dated 12 September 2017, Outgoing Passenger Cards dated 15 December 1976 and Incoming Passenger Card dated 13 January 1977”.

18    A Departmental submission dated 21 February 2018 accompanied the documents given to the Minister. The submission referred to the applicant’s convictions and sentences of 17 September 2012, and parts of the sentencing remarks of the sentencing judge. The submission also recorded that:

Mr HEMPENSTALL’S other convictions are two counts of Fail to comply with reporting obligations on 23 August 2013 for which he was fined an aggregate of $1500.00 and Mr HEMPENSTALL also received a good behaviour bond on 12 December 1985 for Use other drug of dependence.

19    The submission referred to the applicant’s and his sister’s accounts of the circumstances of his offending, psychological intervention, his role in the community, the testimony of family and friends as to his remorse, the strength, nature and duration of his ties to Australia, and a range of matters under the heading “Protection of the Australian Community”.

20    It is also convenient to note at this point Ministerial Direction 65, which was enclosed with the June 2017 Notice. At the hearing, the applicant specifically referred to clauses 9.1.2 and 10.5. Clause 9.1.2 is set out later in these reasons. Clause 10.5 relevantly stated:

10.5     Extent of Impediments if removed

(1)    The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     The non-citizen's age and health;

b)    Whether there are substantial language or cultural barriers; and

c)     Any social, medical and/or economic support available to them in that country.

The Minister’s decision and reasons

21    It is not disputed that the Minister decided to exercise his discretion to cancel the applicant’s visa under s 501(2) of the Migration Act on 30 April 2018, being satisfied of the matters that enlivened the discretion. It is clear that it was open to the Minister to be satisfied of these matters, and the applicant did not contend to the contrary.

22    The reasons relied on by the Minister in support of his decision to exercise his discretion against the applicant focussed primarily on the applicant’s convictions and sentences on 17 September 2012. These reasons recorded (at [12]-[18]):

12.    His Honour Judge Punshon, in his sentencing remarks on 17 September 2012, noted that there were a total 1990 images and 335 videos containing child pornography that were located at [the applicant’s] home, that the nature and content of the material ranged from Level 1 to Level 5, the bulk of the material was categorised as Level 1 however the material ranged over all five classifications including 9 images and 10 videos classified at Level 5.

13.    The Judge noted that as part of the process of accessing material [the applicant] used a file sharing application and that he was aware that a by-product of downloading images by this method was that the images would be shared by other users.

14.    The Judge further noted that the victims ranged from infant to pubescent with the majority of the material featuring pre-pubescent to pubescent females. The videos depict female children in sexual poses together with the oral, anal and vaginal penetration of children. The Judge found imprisonment on all charges was the appropriate penalty and that [the applicant] be sentenced as a Serious Sexual Offender for the protection of the community.

…

17.    In view of the abhorrent nature of the material which [the applicant] had in his possession, his recklessness in downloading the images and the consequences for children of the production of such material, for which [the applicant’s] actions contributed to the demand, I regard his offending as very serious.

18.    I find that the sentence [the applicant] received is a further 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 stated that [the applicant] be sentenced as a serious sexual offender.

23    Under the heading, “Risk to the Australian Community”, the reasons further stated (at [20]-[40]):

20.    I note that the Judge in his sentencing remarks stated that during the period of offending that [the applicant] was under stress, drinking to excess, in financial trouble and his relationship with his fiancée was deteriorating.

21.    I note the psychologist report from Dr Thompson referenced in Court stated that [the applicant’s] substance abuse lead to excessive internet use, including child pornography for sexual gratification and mood enhancement. The report also noted that [the applicant] suffered from depression and anxiety.

22.    I find that [the applicant’s] offending was the result of work pressure, financial stress and relationship difficulty and exacerbated by his ongoing drug and alcohol abuse.

23.    I note [the applicant’s] representations that prison has been a very big deterrent to his re-offending as has the prospects of him being removed from … Australia.

24.    I note [the applicant’s] representation that he saw a psychologist each fortnight for 10 months to help him to fully understand the consequences of his actions and behaviours. I also note the letters of support which reference [the applicant’s] engagement with a psychologist to work through his actions.

25.    I note the Judge’s comments that [the applicant] had made significant efforts to rehabilitate citing the information from Dr Thompson’s report before the Court. The Judge highlighted the following information from Dr Thomson’s report: [the applicant] had engaged in treatment very well, had been open and applied himself conscientiously, had been receptive to feedback and was willing to examine his intentions and underlying motivations; [the applicant] acknowledged many of the factors that contributed to his offending, and had developed a broad range of strategies to assist mood regulation and manage his mental health.

…

27.    I note that [the applicant] has not provided a statement or any evidence in regards to his rehabilitation from substance abuse.

28.    I accept that [the applicant] has made some good progress in his rehabilitation, however in the absence of any current information relating to the substances abuse which exacerbated [the applicant’s] offending, I find there is a risk in [the applicant] engaging in substance abuse which increases the risk of his reoffending.

…

31.    I acknowledge [the applicant’s] remorse and accept that his insight into his offending lessens the risk of his reoffending.

…

35.    I accept [the applicant] has the support of his family and members of the community, has stable accommodation, is managing and running his own business, and has been living in the community for some five years since his release from prison, all of which should assist [the applicant] in refraining from reoffending, although I note that owning a small business can be stressful.

36.    I note with concern [the applicant’s] failure to comply with his reporting obligations, which demonstrates a disregard for the law. I have considered that [the applicant] described this as a ‘misunderstanding with my reporting duties’. I further note these convictions were more than four years ago and he has not reoffended since.

37.    I note the Judge’s comments that Dr Thompson’s report rated [the applicant] in the low-moderate risk category for online re-offending and at low risk of committing a contact offence.

38.    Even after taking the above matters into account, I am mindful of the nature of the harm caused by the proliferation of child pornography, and I find that child pornography is not a victimless crime. Furthermore, I note that people who possess child pornography for their own use create a market for the exploitation of children. If [the applicant] were to reoffend in a similar fashion, his actions may contribute to the market for the production of child pornography.

39.    While the risk of [the applicant] reoffending is low, his offending occurred during a period of substance abuse and during a stressful time in his life. Since his counselling he now understands those matters and is learning to manage them. Although [the applicant] has this insight, the support of his family and friends, his business and stable accommodation, I am concerned with [the applicant’s] possible future substance abuse, particularly if he finds himself in stressful situations, and I am unable, having regard to everything before me, to be satisfied, that there is no risk, of his reoffending in a similar manner.

40.    Having regard to the available information, I find that there is an ongoing risk, albeit low, that [the applicant] will reoffend and I find that although the risk that [the applicant] will reoffend is low, if that risk were to eventuate the offending could result in harm to Australian children, albeit indirectly.

    (Emphasis in original.)

24    The Minister went on to conclude that, in view of the serious nature of these offences, the Australian community “would expect that [the applicant] should not hold a visa”.

25    Under the heading “Other Considerations”, the Minister noted that the applicant had “lived in Australia from a very young age and … that the Australian community may afford a higher tolerance of criminal conduct”. The Minister referred to the applicant’s very good employment history, his community involvement, and acknowledged the applicant’s family and social ties to Australia, quoting from parts of the letters of support that family, friends and business associates had provided. The Minister concluded with respect to these matters:

57.    I have considered the effect of visa cancellation upon [the applicant’s] immediate family in Australia and accept that those persons would experience emotional hardship. I find that [the applicant] has been making a positive contribution for some 31 years to the community and I have taken this into account and also recognise the effect of visa cancellation for his friends, social network and employees in Australia.

26    Under the heading “Extent of impediments if removed”, the Minister continued:

58.    I have considered the impediments that [the applicant] will face if removed from Australia to his home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the United Kingdom.

59.    I note [the applicant] is 50 years of age and has stated that he [has] not been diagnosed with any medical or psychological conditions. However, information provided to the Court in 2012 showed that he had a substance abuse problem and suffered from anxiety and depression.

60.    [The applicant] has claimed that he will suffer hardship starting his life over as an adult in a strange country. Both his sister… and his mother… have advised that they and [the applicant] have no relatives or connections in the United Kingdom.

61.    [The applicant] has resided in Australia since his arrival at the age of three years, and I accept that it may take him a little time to re-establish himself in a country where he has no family or social network, however he should not have any language or cultural concerns if he was returned to the United Kingdom.

62.    I find [the applicant’s] long employment history in Australia and the skills he has learned during his working life should also help him settle in the United Kingdom.

63.    I find that on return to United Kingdom [the applicant] would be able to access the same level of medical, employment and social services available to other United Kingdom citizens.

27    The Minister concluded (at [67]) that the Australian community “could be exposed to great harm” should the applicant reoffend in a similar fashion and that he could not “rule out the possibility of further offending”. The Minister continued:

67.    … The Australian community should not tolerate any further risk of harm.

68.    I found the above consideration outweighed countervailing considerations in [the applicant’s] case, including the impact on his family members and his claimed hardship if returned to United Kingdom. I have also considered the length of time [the applicant] has made a positive contribution to the Australian community through his own employment and his community work, and his employment of others.

69.    I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel a visa. This is the case even applying a higher tolerance of criminal conduct by [the applicant], than I otherwise would, because he has lived in Australia from a very young age.

70.    In reaching my decision I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

Accordingly, the Minister exercised his discretion to cancel the applicant’s visa.

The parties’ submissions

The applicant’s submissions

28    In written submissions, the applicant contended that there were two findings that were central to the Minister’s decision. These findings were that: (1) he was a citizen of the United Kingdom; and (2) he may reoffend because there was a risk that he would engage in substance abuse. The applicant submitted that there had been a breach of procedural fairness because neither of these matters had been put to him for comment when procedural fairness required that they should have been. Counsel for the applicant, Mr Bagley, submitted at the hearing that “in the context of a s 501(2) cancellation, fairness required the Minister to inform [the applicant] of the conclusion that he was or may have been a UK citizen, and to provide him in that context with a copy of the two entry cards” (i.e, the passenger cards referred to at [17] above).

29    Mr Bagley further submitted that procedural fairness required the Minister to inform the applicant that his “potential future substance abuse and rehabilitation was a … or arguably the critical issue” for the Minister in determining his exercise of discretion. Counsel submitted that “fairness required that issue to be expressly, clearly identified to [the applicant] such that [the applicant] could be allowed the opportunity to make submissions about that and provide evidence in relation to that issue”.

30    Mr Bagley added:

And essentially, in my submission, the question in relation to both of these points comes down to this: was it enough for the Minister to provide [the applicant] with the initial letter notifying of the potential adverse decision, together with the attachments to … that letter, and, in particular, those attachments being direction 65, the sentencing remarks of the sentencing judge, and the personal circumstances form – or, alternatively, as the applicant submits, did fairness require that these two critical issues be put to the applicant.

31    The applicant submitted that the finding that he was a citizen of the United Kingdom or entitled to citizenship of the United Kingdom was implicit in the Minister’s reasons at paragraph [58]. Referring to his completed personal circumstances form and to the passenger cards, the applicant further submitted that the material before the Minister indicated that the applicant did not know that he was a citizen of the United Kingdom. The applicant also referred to his own and his mother’s and sister’s statements about their citizenship and lack of connection with Ireland or the United Kingdom. Mr Bagley contended that it should not be assumed that the June 2017 Notice alerted the applicant to the fact that he did not have Australian citizenship.

32    In writing and in argument, reference was made to the exceptions to birthright citizenship for people born in England before 1983 depending on the status of the father of the child, citing the British Nationality Act 1948 (UK) s 4. In this regard, the applicant submitted that there was “no evidence about [his] father”.

33    The applicant further submitted that, on the evidence, it was unclear whether his mother was an Irish citizen or merely entitled to Irish citizenship. He submitted that if his mother was an Irish citizen born in Ireland, then he was an Irish citizen by descent. He further submitted that if she was not born in Ireland and merely entitled to Irish citizenship, then he too only had an entitlement to Irish citizenship, citing the Irish Nationality and Citizenship Act 1956 (Ireland) s 7.

34    Mr Bagley submitted that procedural fairness meant that the applicant ought to have been provided with the passenger cards “such that he could have made submissions about the fact that he was an Irish citizen”, although he accepted that, given the age of the applicant at the date of travel, the passenger cards were likely filled out by an adult travelling with the applicant.

35    The applicant submitted that since the Minister did not afford him an opportunity to comment, there was a denial of natural justice, “in circumstances where [his] assertions as to the difficulties he would face upon return were plausibly in reference to Ireland (the country of which he believed that his family were citizens), not in reference to any additional difficulties he would face in the United Kingdom”.

36    At the hearing, Mr Bagley contended that this was particularly significant in a situation where the applicant may have had a mere right to British citizenship, rather than a right to British travel documents or a right to enter the United Kingdom, and therefore would be likely placed in immigration detention on arrival in the United Kingdom. Mr Bagley submitted that he ought to have been told by the Minister that the Minister was inclined to the view that he was a citizen of the United Kingdom in order that the applicant could make submissions about the difficulties he might face, including the possibility of immigration detention, if returned to the United Kingdom.

37    Mr Bagley added at one point that there was also nothing to indicate that the applicant had Irish travel documents and that he would be allowed entry to Ireland without such documents. Again, Mr Bagley submitted that the applicant ought to have been given an opportunity to address this issue. Mr Bagley argued that the applicant ought to have been able to make submissions about “the relative difficulties in obtaining travel documents to return to one or other of those countries”.

38    In reply Mr Bagley also submitted that there were relevant factors that might have led to the loss of citizenship of one country or the other, referring to ss 21-25 of the Irish Nationality and Citizenship Act 1956 (Ireland) and ss 19-22 of the British Nationality Act 1948 (UK).

39    As already stated, Mr Bagley submitted that the Minister denied the applicant procedural fairness by failing to give him an opportunity to respond to the risk of reoffending due to potential future substance abuse, as that risk was a critical issue or fact on which the decision was likely to turn. He contended that there was “likely great significance” in the finding that the applicant could engage in future substance abuse, and that on a plain reading of the Minister’s reasons it was that fact that outweighed the factors counting against cancellation. It was said that this was not an obvious and natural conclusion to draw “from the material with which [the applicant] was provided”.

40    The applicant submitted that this was the only matter relied on by the Minister in concluding that the applicant posed a risk of reoffending. Noting that the applicant had not provided any statement or evidence about substance abuse and that Direction 65 did not refer to substance abuse as a factor to be considered in the assessment of character on the basis of past or present criminal conduct, the applicant submitted that it was “not obvious nor clear” that the Minister would take past substance abuse into account when assessing past or present criminal conduct.

41    In written submissions, the applicant further contended that there was nothing on the material to indicate that the Minister would draw the conclusions in his reasons at [28] and [39]. Rather, the material before the Minister was to the effect that the applicant “had positively engaged with rehabilitation, had taken on a lower-stress job and … had benefitted from the rehabilitation counselling”. These submissions contended that “fairness required that [the applicant] be given the opportunity to comment on the matter before an adverse finding was made”, “[b]y reason of the following circumstances”:

(a)    [the applicant’s] evidence was that he had sought help from a psychologist for a period of 10 months after being charged and he had made significant efforts to rehabilitate;

(b)    [the applicant’s] psychologist assessed his risk of reoffending as low-moderate at the time of sentence;

(c)    [the applicant’s] sentencing remarks acknowledged that the report from the psychologist was to the effect that [the applicant] had made ‘significant gains’ but ‘treatment concerning substance abuse [was] still in the early stages’;

(d)    the drug abuse was related to stress, financial trouble and the breakdown of a relationship;

(e)    letters of support from [the applicant’s] mother and stepfather noted that the counselling he received ‘was very beneficial in helping him to get his life on track’ and ‘helped him a lot’;

(f)    [the applicant’s] statement that his risk of reoffending is ‘unlikely as [he had] been released from prison for nearly five years’ and that ‘prison is a very big deterrent and the thought of deportation a very scary prospect as I have lived here all my life’;

(g)    [t]he Minister noted that [the applicant] might lapse into substance abuse ‘if he finds himself in stressful situations’ leading to ‘reoffending in a similar manner’[;]

Since the offences, [the applicant] has taken a redundancy from his managerial job at Telstra, started a new job and has lower stress[;]

(h)    Ministerial Direction 65 suggests there should be a higher level of tolerance for criminal conduct for non-citizens who lived in Australia from a very young age and also note[s] that the length and amount of positive contributions … the Applicant has made should be taken into account. [The applicant] has lived in Australia since the age of 3. The Minister’s findings have significant consequences for the Applicant in that he will be deported from the country he has lived in for 47 years and where he has significant social and familial ties [;]

(i)    Although [the applicant] was invited to provide ‘reports from counsel/medical professional etc regarding progress to rehabilitation’ he was not invited to provide material in relation to the substances abuse issues.”

(Emphasis in original.)

42    Mr Bagley contended that the sentencing remarks needed to be understood in the context of being “generally favourable on the question of rehabilitation” and that it was appropriate for the Court to take into account that an applicant was less likely to perceive there to be an issue that requires comment when provided with a document identifying that issue in favourable terms. This was particularly so, he contended, where the Minister may well have expected the engagement of an expert or the provision of a further report in respect of the current and future risk of substance abuse by the applicant; and where the consequences of a decision to cancel the applicant’s visa were serious, involving the applicant returning to a country where he had no ties. Counsel further submitted that, in circumstances where the applicant’s treatment had continued for 10 months and one of the causes of the offending (the underlying stress) had been resolved, the Court could appropriately infer that if the applicant had been asked to provide an explanation of these matters, there would have been further material, including material from the applicant’s psychologist, that could have been provided to address the Minister’s concerns.

43    At the hearing Mr Bagley submitted that:

It may have been that a sophisticated person reviewing that material, comparing it to the personal circumstances form, comparing it to the terms of direction 65 and the items that I took your Honour to, may have been sufficiently put on notice that that was an issue that might have been relevant to the Minister’s determination. But [in] my submission … an ordinary member of the community would not so have been put on notice. Certainly would not have been put on notice that this was the critical issue. And so the critical issue that required more than just filling out the five lines allocated in the personal circumstances form for response, but required, arguably, the engagement of an expert, or the provision of a further report to explain this issue. Because that is – that is certainly what seems to have been what the Minister was expecting, detailed evidence about the current risk of substance abuse and the future risk of substance abuse.

And in my submission, if that’s what the Minister was expecting, and the Minister was expecting that to be provided before the determination was made, fairness required that [the applicant] be told that this was a particular area of concern. …

…

In my submission, what is required is nothing more than a brief further notification to [the applicant], the Minister is particularly concerned about the risk that further substance abuse could be an issue and in relation to the other ground, the Minister notes that you indicate that you’re unaware of your country of citizenship. The Minister considers that you’re a UK citizen. Please could you provide comment on these matters and provide any further evidence in relation to those matters. …

44    The applicant principally relied on Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 at 591-592, Degning v Minister for Home Affairs [2019] FCAFC 67 at [6]-[7] and [12]-[13] and Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; 265 FCR 177 at [39]-[40], [44], [46]-[49] (especially to the Full Court’s reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [29]-[32]), in support of the proposition that the Minister was required to afford him procedural fairness before making a decision under s 501(2) of the Migration Act. Reference was also made in this context to Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [40], Pancharatnam v Minister for Immigration, Local Government & Ethnic Affairs [1991] FCA 525; 26 ALD 217 at 222 and NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44. The applicant contended that where “the statutory framework provided for the unilateral exercise of power by the Minister with significant adverse consequences”, procedural fairness required “disclosure of any adverse conclusion not obviously open on the known material and notice of the subject matter and potential adverse consequences of the decision” (citations omitted).

45    With respect to Degning, the applicant submitted in written submissions that:

Some, but not all, of the facts in Degning, are analogous to the present case. There, the Applicant’s visa was cancelled because of Mr Degning’s substantial criminal record, including crimes of a sexual nature. Mr Degning was convicted on 21 occasions between 1977 and 2015 but on three Incoming Passenger Cards answered ‘no’ to the question ‘do you have any criminal conviction/s?’ Mr Degning argued on appeal that there was a denial of procedural fairness as it was not obvious from the passenger cards that the Minister might conclude that failure to declare criminal convictions was a matter to be taken into account in assessing his risk of reoffending. Allsop CJ, held that the Minister’s reliance [on] the passenger cards for this purpose without directing the applicant to the issue or giving the applicant an opportunity to comment amounted to a failure to give him the opportunity [to] ascertain the relevant issues and be informed of the nature and content of adverse material.

(Emphasis in original; citations omitted.)

46    Mr Bagley submitted that what was said about materiality in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421; 363 ALR 599 should be understood in the context of what was said in Degning on this issue. He also noted the comments of Buchanan J in NBNB at [156] were referred to with approval in Stowers at [48].

The Minister’s submissions

47    In written submissions, the Minister contended that the issue concerning “the Applicant’s potential return to the United Kingdom” was “both apparent and obviously open on the known material”. This meant, so the Minister submitted, that the applicant “must have inevitably turned his mind to what country he was a citizen of”. The Minister submitted that the applicant’s statement that he presumed that he had Australia citizenship was indicative only of his understanding prior to receiving the Department’s June 2017 Notice.

48    At the hearing, Mr Petrie, counsel for the Minister, noted that the personal circumstances form specifically asked the applicant to nominate his “Current citizenship(s)”. He submitted that the question, “what is your citizenship”, was therefore “clearly put to him”. In this context, Mr Petrie submitted that:

The reason I make that point is that the applicant has, to some extent, seemed to have inversed the process, in that the obligation is on the Minister to bring issues to the applicant’s attention. It’s not the applicant – or the Minister isn’t to be judged, in my submission, by the issues the applicant might bring to the Minister’s attention as to his comprehension of what the issue is, or to whether or not he has got anything to say in response to the issue. The issue being, “What is your citizenship?”

49    The Minister submitted in writing that the applicant’s statement in his completed personal circumstances form that his citizenship was “unknown” should be seen in the context of the applicant’s statement that he was born in London and therefore in the United Kingdom. The Minister contended that the applicant’s statements on this form supported the inference that the applicant was, at most, unsure of his citizenship, but that “this did not mean that the issue of his citizenship was not obviously open” (emphasis in original).

50    Referring to the letters from the applicant’s sister and mother containing statements to the effect that the applicant and his family no longer had any connection with Ireland or the United Kingdom, the Minister submitted that these letters identified that whether the applicant was a citizen of the United Kingdom was an issue on the “known material”. Citing Degning at [13], the Minister submitted that it was “obviously open on the known material” for the Minister to proceed on the basis that the applicant was a citizen of the United Kingdom.

51    In the course of argument, Mr Petrie accepted that the applicant may have held two citizenships (i.e., that of the United Kingdom and of Ireland), but submitted that on the basis of the information provided to the Minister it would have been “more hazardous” for the Minister to proceed on the basis that the applicant was a citizen of Ireland. He submitted that, in light of the applicant’s response that he was born in London and the letters of support provided by his sister and mother, the applicant “must have known” that a country to which he might be returned was the United Kingdom. To the extent that submissions were made about the impediments that would be faced on the applicant’s return to the United Kingdom, counsel for the Minister submitted, referencing [58] of the Minister’s reasons, that these submissions were considered by the Minister.

52    The Minister submitted that his “presumption” that the applicant was a citizen of the United Kingdom was supported by the information provided by the applicant “and was not expressed to rely upon any incoming passenger cards”. The Minister contended that he was not obliged to provide the passenger cards to the applicant, because in contrast to the situation in Degning, he did not in this case “expressly rely upon the incoming passenger cards to find that the applicant had provided a false answer that indicated a disregard for the law, which in turn was relevant to the risk of reoffending”. The Minister submitted that the relevant inquiry was that identified in Alphaone and that Degning did not assist the applicant.

53    Referring to the dissenting reasons of Thawley J in Degning at [153]-[154], the Minister submitted that in circumstances where the applicant had provided information “capable of supporting an inference that he was a citizen of the UK”, the applicant’s submission that there was a breach of procedural fairness because he was not aware that such a finding might be made was inconsistent with Alphaone.

54    The Minister relied on Thawley J’s reasons in Degning to the effect that “what procedural fairness requires depends not only on the specific statutory context but also on the centrality and significance of the particular issue in the decision-making process”. In this respect the Minister stated that the only information provided by the applicant in response to the question of “whether he would find it difficult to return to his country of nationality” was that he had no “connections” and would be in a “strange country”. Those problems, the Minister contended, were not “unique to Ireland”, even accepting (which was denied) that this was the country to which the applicant referred, but rather “would equally apply to the UK”. The Minister noted that the applicant had not sought to explain how his response would have been any different, and submitted that also for this reason, the Minister was not obliged to expressly draw to the applicant’s attention the question of whether he was a citizen of the United Kingdom.

55    The Minister relied on SZMTA at [4], [45] and [47], in support of the proposition that the Court, in considering whether relief should issue for a denial of procedural fairness, had to address the question of whether and how the decision would “have been different”. Mr Petrie, counsel for the Minister, contended at the hearing that the failure to put the country of return to the applicant was not material because the applicant ought to have been aware that the “obvious countries of reference” were the United Kingdom and Ireland, and it was open to him to make submissions about both. The Minister emphasised that when materiality was put in issue in an application for judicial review, it was the applicant who bore the onus of proof in respect of the question of materiality, which was a question of fact, to be determined by inferences drawn from evidence adduced on the application. The Minister submitted that it would have been open to the applicant, for the purposes of the present application, to have put on evidence about what the applicant would have said if asked. As regards the matter of immigration detention, the Minister submitted that there was no reason why he could not have made representations about this at the outset, given that the obvious countries of reference were the United Kingdom and Ireland.

56    Further and in the alternative, the Minister contended that any failure to draw the issue of the applicant’s citizenship to the applicant’s attention was not material to the decision on the basis that, on the information provided by the applicant, he was in fact a citizen of the United Kingdom. This was, so the Minister submitted, because the law of the United Kingdom provided that birth in the territory was sufficient to acquire citizenship between 1949 and 1982, referring to s 4 of the British Nationality Act 1948 (UK), as well as the British Nationality Act 1981 (UK). The Minister submitted that the only exceptions to this were (1) where the father possessed immunity from suit and legal process as was accorded to an envoy of a foreign sovereign, and was not a citizen of the United Kingdom (in essence, a diplomat); and (2) where the father was an enemy alien and the birth occurred in a place then under occupation by the enemy. The Minister also submitted that, in relation to the s 4 of the British Nationality Act 1948, there was no evidence to suggest that the applicant’s father was a diplomat. The applicant’s failure to adduce such evidence pointed to the conclusion that the applicant’s father was not a diplomat; that the applicant was a citizen of the United Kingdom; and that therefore any failure of the Minister to afford procedural fairness in respect of this issue was not material. The Court could, so the Minister submitted, take judicial notice that the United Kingdom was “not engaged in any theatre of war in 1968” and that London was not under enemy occupation at the time of the applicant’s birth.

57    The Minister contended that the applicant’s submission that the risk of reoffending due to potential future substance abuse was not an “obvious and natural conclusion” on the basis of the material given to him ignored the multiple references in the sentencing remarks made in September 2012 to the applicant’s “ongoing substance abuse problems”. The Minister referred to paragraphs 8, 21 and 25 of those remarks, to the fact that the applicant acknowledged his long-term dependence on cannabis and the judge’s comment that his treatment concerning substance abuse was then in its “early stages”. The sentencing remarks, so the Minister submitted, were provided to the applicant for the express purpose of inviting him to comment on the question of whether he passed the character test and, relevantly, if he did not, whether the Minister should exercise his discretion to cancel his visa. The Minister submitted that the applicant “had the opportunity to inform the Respondent whether he continued to suffer from substance abuse (as the Sentencing Remarks suggested)”; and that, as correctly stated by the Minister at [27] of his reasons for the decision, he did not do so.

58    In circumstances where the sentencing remarks “made plain that the Applicant suffered from, and continued to suffer from, substance abuse problems”, the Minister submitted that the finding that the applicant might engage in future substance abuse was “obviously open on the known material”. Further, the Minister contended, the relevance of these problems was apparent to the applicant, as evidenced in the explanations offered by him (as recorded in the sentencing remarks) in seeking to provide mitigating reasons for his offending.

59    At the hearing, Mr Petrie also drew attention to the applicant’s own statement in his completed personal circumstances form, where in answer to the question “Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?”, the applicant specifically said “I turned to drugs and alcohol to supress my anxiety and depression”.

60    At the hearing, Mr Petrie referred to the Department’s June 2017 Notice, including the sentence stating that the enclosed documents:

consist of information that is held by the [D]epartment, which the decision-maker may rely on to decide whether you pass the character test, and if not, whether your visa should be cancelled.

Mr Petrie submitted that as the applicant would have been familiar with the sentencing remarks, and would have read them at the time he received them, it was not reasonable to infer that the applicant did not understand the significance of these remarks for the Minister’s decision. Referring to the reasons of Allsop CJ in Degning (at [13]-[14]), Mr Petrie contended that, in the context of a visa cancellation decision, “by providing the applicant with the sentencing remarks, the Minister was entitled to expect that the applicant would read those sentencing remarks with great care”.

Consideration

61    It may be accepted that the Minister was obliged to observe the requirements of procedural fairness in exercising the discretion under s 501(2) of the Migration Act (after having formed a reasonable suspicion that the visa-holder does not pass the “character test” and not being satisfied by the visa-holder that he or she passes that test): see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [47] (McHugh and Gummow JJ). The applicant does not dispute that the Minister had the relevant reasonable suspicion and that he had not satisfied the Minister to the contrary when the Minister exercised the discretion to cancel his visa. The question in this case is whether the Minister failed to accord the applicant procedural fairness, such that the Minister’s cancellation decision is vitiated by jurisdictional error. As we have seen, this question is said to arise in two ways.

62    The applicant was entitled to an opportunity to ascertain and address the critical issues on which the Minister’s decision was likely to depend. He was also entitled to be made aware of and have an opportunity to address any adverse information that was credible, relevant and significant to the decision to be made: Kioa v West [1985] HCA 81; 159 CLR 550 at 587 (Mason J), 629 (Brennan J).

63    What is required to discharge an obligation to afford procedural fairness depends on the particular statutory framework and the circumstances of the case: see, for example, Kioa v West at 584-585 (Mason J); SZBEL at [26] and [29]; TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; 232 FCR 361 at [86]; and Stowers at [43]. The content of procedural fairness is context-dependent and must be approached on the basis of what is necessary to avoid “practical injustice”: Lam at [37]-[38] and Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [57].

64    A decision-maker is not therefore required to disclose to a person affected by the decision every item of information that the decision-maker has or might consider: see Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223 at [30]. In that case, Rares and Jagot JJ said in their joint judgment at [30] that “procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the [decision-maker] on an issue … of which the applicant was not already on notice”. As their Honours explained at [30]-[31]:

The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person’s answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.

But the substance of such information is, generally, distinct from the particular mode or source of its expression… The position may be different if the particular form in which the information was conveyed itself affects the meaning of the information or because some unusual or particular characteristic has a bearing on its credibility, relevance or significance. …

65    Something should at this stage be said of the passages in Alphaone to which both the applicant and the Minister referred. These included the passages at 591-2 where the Court stated:

A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West at 587 (Mason J), 628 (Brennan J). …

The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi [v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100] at 108-109:

1.    The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J) …

2.    The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: … Kioa v West at 573, 588 and 634.

…

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

(Emphasis added.)

66    Although correctly understood the above passages are uncontroversial, to understand them properly some account needs to be taken of the development of these principles in later cases. Thus, for example, the propositions that “if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it” and that “[t]he subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material” have been qualified to an extent by the Full Court in SZQHH at [30]-[31] (see [64] above) and by the High Court in SZBEL at [30]-[31].

67    In SZBEL, after referring to the above passage from Alphaone, the High Court said, at [30]-[31], that:

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

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

68    The Court in SZBEL went on to identify these fundamental principles immediately thereafter, saying at [32]:

In Alphaone the Full Court rightly said:

“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.”

(Citations omitted; emphasis in SZBEL.)

69    As noted above, the applicant placed some further reliance on the more recent decisions of Full Courts of this Court in Stowers and Degning. In my view, these two cases are in substance applications of the principles set down in the earlier mentioned cases.

70    The question in Stowers was not unlike that here in that the Court had to determine whether, in the context of an exercise of power under s 501CA(4) of the Migration Act to decide not to revoke a visa cancellation, procedural fairness required the decision-maker to do more than he did to put the appellant on notice of how the material disclosed to the appellant might be used by the decision-maker in deciding whether to revoke a mandatory cancellation decision: see Stowers at [1]-[2]. The Court held that procedural fairness in that case did in fact require the decision-maker to do more to put the appellant on notice of the basis on which the decision-maker concluded that the appellant had displayed a disregard for judicial orders. In joint reasons, the Court emphasised, at [43], that both the statutory context and the particular facts and circumstances of the case are important in determining whether there has been procedural unfairness. As the Court said, at [44]-[45]:

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) 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.

It is also important to bear in mind the need for caution in applying statements of general principle in this area. As Katzmann J correctly observed in SZQNO v Minister for Immigration and Citizenship [2012] FCA 326 at [45], the context of the particular case in which such statements are made is critical.

71    The Court in Stowers at [48]-[49] referred to the respective reasons for judgment in NBNB (particularly those of Buchanan J) and emphasised the importance of giving a person affected by a decision practical, direct and non-misleading advice about the factors that the decision-maker considers relevant to an assessment on which the decision depends. The Court held in Stowers that in inviting the appellant to comment on additional material, the decision-maker failed to put the appellant on notice of the fact that that material might support a potentially relevant finding that the appellant had shown a disregard for judicial orders: see Stowers at [58].

72    The content of the obligation of procedural fairness, this time in the context of an exercise of power by the Minister to cancel a visa under s 501(2) of the Migration Act, also arose for consideration in Degning. The Full Court (Allsop CJ, Collier and Thawley JJ) agreed that the first two grounds relied on by the appellant should be dismissed. The majority (Allsop CJ and Collier J) upheld the appellant’s third ground, to the effect that the primary judge had erred in failing to find that the decision-maker had denied the appellant procedural fairness. The decision-maker relied on the fact that there were inaccurate statements on incoming passenger cards signed by the appellant as showing that the appellant had a “further disregard for the law”: Degning at [147]. The majority accepted the appellant’s submission that the decision-maker should have done more to put him on notice that the decision-maker might regard these false statements as relevant to his assessment in reaching the cancellation decision.

73    The majority in substance accepted the appellant’s submission that it was not obvious from the supplied material (which included three incoming passenger cards signed by him in which he had declared, untruthfully, that he had no prior criminal convictions) that the Minister might consider that this material evidenced a disregard for the law and decide to exercise his discretion to cancel the visa on this basis. Allsop CJ stated, at [12]-[13], that:

… [T]he question is whether in all the circumstances, Mr Degning was afforded procedural fairness. What I said in SZRMQ [v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 at [6]-[7]] is to be understood in the light of what the Full Court said in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590–591 approved by the Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at 162 [32]. Applying these principles, Mr Degning was entitled to have his mind directed to the critical issues or facts on which the decision was likely to turn unless the recognition of the issue was, from the material with which he was provided, an obvious and natural conclusion to draw.

Nothing in Alphaone or SZBEL decontextualizes the enquiry. One should look at the whole of the circumstances including the documents given to Mr Degning to assess whether he had his mind directed to the critical issues or factors on which the decision was likely to turn and to be informed of the nature and content of relevant material. In that assessment, it is relevant to assess what is or is not an obvious or natural evaluation of the material which need not be the subject of particular attention being drawn. The ultimate touchstone is fairness.

74    Allsop CJ observed that, while the risk of the appellant’s reoffending was “the critical issue” so far as the decision-maker was concerned in making the decision, “[t]he relationship of the question of the falsity or inaccuracy of the cards to the risk of reoffending … was opaque to say the least”: see Degning at [36], [37]. His Honour concluded, at [38]-[39]:

There was in my view a failure to afford Mr Degning procedural fairness. It was, in my view, unfair not to direct Mr Degning to this issue. The common law requirement of procedural fairness or natural justice is rooted in the common law’s inhering demand for fairness in the way power is exercised. Relief will ordinarily follow a denial of procedural fairness: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at 89 [5] (Gleeson CJ), 101 [41] (Gaudron and Gummow JJ), 143–144 [171] (Hayne J), 132–136 [135]–[144] (Kirby J), 156–157 [218] (Callinan J). That does not mean that relief is not discretionary: Aala. But the relief is usual because a finding of an absence of procedural fairness is based on the procedure being unfair. An “arid and technical” approach to unfairness and approach to unfairness not based on the practical nature of fairness is to be disapproved: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at 9 [25] and 12–13 [34] (Gleeson CJ).

Whilst it is necessary for the applicant to show that the process has fallen short of a standard of fairness in all the circumstances, it is not necessarily the case that evidence must be led about what the applicant would have done had the procedure been fair. Here for instance, I see no justification for concluding that Mr Degning had to prove that he did not understand that the passenger cards were related to a proposition that he had a disregard for the law and that that was relevant to the question whether he posed a risk of re-offending for sexual offences. Given the gravity of the consequence of the decision for him, and the nature of the representations that he did make, I would infer that he would have said whatever he could have said about the cards, even, if it be the case, accepting some dishonesty. Human experience and plain common sense tells one that he would have addressed it. There is no basis to think that it could have been some tactical decision. Being prepared to draw the inference that Mr Degning did not understand the issue for which the passenger cards were to be or were used, I am persuaded that the failure to afford him procedural fairness denied him an opportunity to put submissions on a topic of relevance to the Minister’s consideration. There is no reason to think that this could not have made a difference to such a difficult decision, and one where there was accepted to be a low risk of re-offending. I do not consider that Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252 requires any different conclusion.

75    Collier J agreed that there was a failure to afford the appellant procedural fairness in the circumstances of the case: see Degning at [43]. Thawley J, dissenting with respect to this ground, took the view that in the circumstances “[s]ufficient was done to draw to [the appellant’s] attention the use which might be made of the passenger cards”, because “[a] reasonable recipient of the notice would have been alerted to the fact that the Minister … might use the apparent inconsistency to conclude that the declaration was false, that the false answer breached or disregarded the law and that these facts were relevant to an assessment of risk to the community because it said something negative about the character of the person”: see Degning at [152].

76    Although the law to be applied in this case is the law as stated in Stowers and Degning and, as in Degning, this case concerns a decision to cancel a visa in exercise of the discretion in s 501(2) of the Migration Act, with respect to the first issue raised by the applicant, this case is significantly different from Stowers and Degning, as I will explain.

Citizenship or home country

77    It is said by the applicant that the Minister failed to afford the applicant procedural fairness because the Minister did not do enough to put him on notice that the Minister might conclude that the applicant was a citizen of the United Kingdom and because of this, the applicant was deprived of a proper opportunity to address this possible finding. For present purposes, I accept that, although the Minister has not expressly stated that the applicant is a citizen of the United Kingdom, it should be inferred from paragraph [58] of the Minister’s statement of reasons that the Minister made his decision on the basis that the applicant’s “home country” and the country to which he would be returned was the United Kingdom. The Minister’s reasons assume that the applicant has a right to enter and remain in the United Kingdom.

78    In contrast to Stowers and Degning, the documentary record shows that the applicant was put on notice that there was an issue about his country of citizenship or home country (which for present purposes was the same thing) and given an opportunity to address that issue. The Department’s June 2017 Notice clearly advised the applicant that he held a visa that permitted him to remain in Australia and that, if the Minister’s discretion in s 501(2) was enlivened, then the Minister might decide to cancel that visa.

79    Any doubt the applicant might have had that his continued residence in Australia would be brought to an end by the cancellation of his visa would have been dispelled by Direction 65, a copy of which accompanied the Department’s notice. The June 2017 Notice outlined the relevance of Direction 65 for the applicant’s benefit. It can be fairly inferred that the applicant would have sought to understand Direction 65, because of the grave consequences for him of a visa cancellation decision. Although Direction 65 was a lengthy and complex document, the applicant would have understood at least that it outlined the objectives of the law under which the Minister might cancel his visa and the kinds of issues that the Minister would consider relevant to such a decision. Even a slight understanding of that document would have led the applicant to realise that the very fact that he had been sent the June 2017 Notice and a copy of Direction 65 meant that he had the status in Australia of a “non-citizen”. The preamble to Direction 65 made it abundantly clear that the objective of the relevant law was to regulate the presence of non-citizens in Australia and that under s 501(2) of the Migration Act the Minister would, if certain conditions were met, have the power to cancel a non-citizen’s visa having regard to the specific circumstances of the case.

80    Direction 65 clearly directed attention to the possibility of the applicant’s removal from Australia to his home country in the event that a decision were made to cancel his visa. Under the sub-heading “Extent of Impediments if removed”, paragraphs 10 and 10.5 indicated that the “extent of impediments if removed” was a relevant consideration in deciding whether to cancel a visa: see [20] above. In particular, paragraph 10.5 indicated that consideration would be given to “[t]he extent of any impediments that the non-citizen may face if removed from Australia to their home country …”.

81    It may be concluded that both the June 2017 Notice and Direction 65 made it very plain that the applicant would not be able to remain in Australia if his visa were cancelled and that he would be returned to his home country. So far as the applicant was concerned, this meant that the identification of a home country (ordinarily the country of his citizenship) was necessary in the event that a visa cancellation decision was made.

82    Furthermore, the personal circumstances form also accompanying the June 2017 Notice specifically raised the issue of citizenship under the heading “Basic Personal Data” in order that the applicant could address it. The applicant addressed the issue of his citizenship by responding that this was “unknown”.

83    This response should be understood in the context of the other information that the applicant provided when he completed the form and returned it to the Department. This other information indicated that there were two possibilities: either he was a citizen of the United Kingdom or a citizen of Ireland (or perhaps of both countries). This was because he stated on that form that his place of birth was “London, England”, indicating that he may have arrived in Australia as a citizen of the United Kingdom. On the same form, he also stated that he had arrived in Australia when he was about three years of age, with his parents and his sister; that his presently living immediate family included his mother and sister; and that both of them held Irish nationality. This raised the possibility that when the applicant arrived in Australia with his family, he too was a citizen of Ireland.

84    It must also be observed that the personal circumstances form contained a specific heading “RETURN TO YOUR COUNTRY OF CITIZENSHIP”. In answer to the question, “[d]o you have any concerns or fears about what would happen to you on return to your country of citizenship?” the applicant ticked “yes”. Under an invitation to describe his concerns and what he thought would happen to him if he returned, the applicant answered:

I have never held citizenship as an adult for any country. I have lived in Australia all of my life with the presumption I was a permanent resident with automatic citizenship.

In answer to the question, “[a]re there any other problems you would face if you have to return to your country of citizenship?” the applicant said.

Starting my life over as an adult in a strange country.

85    In view of the fact that it was made clear beyond doubt in this form, in Direction 65 and in the June 2017 Notice, that if a visa cancellation decision were made, the applicant would be compelled to leave Australia and return to his country of citizenship (or home country), the statement that he had lived in Australia, “on the presumption” that he was “a permanent resident with automatic citizenship” was in its terms, and should be understood as, a statement about his past state of mind. Read in this way, the statement apparently recognises that he had been mistaken and accepts (by implication) that his citizenship lay elsewhere, presumably with the United Kingdom as his place of birth, or perhaps, by descent, with Ireland.

86    This impression is reinforced by the letters of support that were written by his mother and sister and provided to the Minister. At the time his mother and sister wrote each of their letters of support, they recognised that, apart from Australia, the applicant’s only other connections were to the United Kingdom and/or Ireland. This was borne out by the fact that, in the context of affirming that the applicant had no connections outside his family in Australia, his mother referred to the United Kingdom and to Ireland, while his sister referred to the United Kingdom. His mother wrote that the applicant and his family “no longer have any connections with Ireland or the UK”. His sister wrote “we do not have any family connections what so ever in the United Kingdom”: see [16] above.

87    There can be no doubt in these circumstances that the applicant was made aware at an early stage of the issue of his citizenship or “home country” and of its relevance to a possible visa cancellation decision, including the practical consequence that if a visa cancellation decision were made steps would be taken to return him to the country which the Minister considered was his home country or country of citizenship. The documents which the applicant himself provided to the Minister disclosed that there were potentially only two countries that might be described as the applicant’s home country or country of citizenship. These were the United Kingdom and Ireland. The applicant was on notice the Minister would make his visa cancellation on the basis of one of these possibilities and take steps to return him to one of these countries in the event the Minister decided to cancel his visa. It cannot be the case in these circumstances that the Minister’s implicit conclusion that the applicant’s home country was the United Kingdom was not one obviously open on the material known to the applicant. The applicant did not take up the opportunity that this knowledge gave him to address this possibility. Rather, he chose not to do so when asked about his citizenship on his completed personal circumstances form and when asked about related matters, he chose only to confirm his past, evidently mistaken, understanding of his citizenship position in Australia.

88    For these reasons I would reject the applicant’s submission that he ought to have been told by the Minister that the Minister was inclined to the view that he was a citizen of the United Kingdom. The applicant’s argument that he ought to have been able to make submissions about the possibility of immigration detention if returned to the United Kingdom or Ireland depended on the applicant’s primary submission that he had been denied procedural fairness, which, for the reasons stated, I reject.

89    For the following reasons I would also reject the submission that procedural fairness required the Minister to provide copies of the passenger cards to the applicant.

90    The applicant’s 12 September 2017 movement records noted his country of birth as the “UK”. An outgoing Passenger Card dated 15 December 1976 in the applicant’s name and apparently completed on the applicant’s behalf identified his country of citizenship as “Ireland”, and his country of birth as “England”. This card also indicated that the applicant intended to spend about six weeks mostly in “S Ireland”. An Incoming Passenger Card dated 13 January 1977 also identified his country of citizenship as “Ireland” (the word “England” having been crossed out) and his country of birth as “England”. It stated that he had spent most of the past month or so in Ireland.

91    The applicant was about eight years old when the passenger cards were completed. Indeed, the forms apparently bear the signatures of two other family members. One form indicates some uncertainty about whether the applicant was a citizen of “England” (ie, the United Kingdom) or “Ireland”. In any event, the basis on which Ireland was stated to be as the applicant’s country of citizenship is not disclosed. In substance, the passenger cards added little, if anything, to the information that the applicant himself provided in his completed personal circumstances form. They did not constitute “credible, relevant and significant information available to the [decision-maker] on an issue … of which the applicant was not already on notice”: see SZQHH at [30].

92    This conclusion is supported by the fact that the Minister did not rely on the passenger cards in making the cancellation decision. The passenger cards formed part of attachment C to a submission prepared for the Minister’s consideration in making a decision in the applicant’s case. Attachment C was cited but, as the following passages indicate, the passenger cards were not relied on in the submission for any material reason:

8.    [The applicant], a 50 year old national of the United Kingdom is the holder of a Class BF transitional (permanent) visa Attachment C.

9.    [The applicant] first arrived in Australia on 5 February 1971, aged three years. He has resided in Australia for some 47 years Attachment C.

…

24.    [The applicant] has lived in Australia for some 47 years, arriving as a toddler aged three years, considers himself Australia[n] and knows no other way of life. [The applicant] was under the presumption that as a permanent resident that he had automatic Australian citizenship Attachments C & D.

93    The Minister did not refer to nor rely on the passenger cards in his reasons he gave for cancelling the applicant’s visa. This was unlike the situation in Degning where the Minister expressly relied on statements in incoming passenger cards to find that the appellant had provided a false answer, thereby indicating a disregard for the law relevant to his evaluation of the appellant’s risk of reoffending.

94    As noted earlier, both the applicant and the Minister made submissions about the effect of the nationality legislation of the United Kingdom, including s 4 of the British Nationality Act 1948 (UK) and the British Nationality Act 1981 (UK). The applicant made submissions about s 7 of the Irish Nationality and Citizenship Act 1956 (Ireland). It may be said, I think, that on the information available to the Minister it would appear to have been open to the Minister to proceed on the basis that the applicant was a citizen of the United Kingdom. The applicant has not said otherwise. It is not, however, for this Court in this proceeding to determine whether the applicant is a citizen of the United Kingdom and/or Ireland. First, if the issue arose at all, it was only in respect of an argument about materiality, which it is unnecessary to explore since there was, in my opinion, no relevant breach of procedural fairness to warrant consideration of this issue. Secondly, whether the applicant was a citizen of the United Kingdom and/or Ireland is a question of foreign law to be proved on admissible evidence: see, for example, SZOAU v Minister for Immigration and Citizenship [2012] FCAFC 33; 199 FCR 448 at [57] (Robertson J). There is no such evidence in this case.

Risk of reoffending

95    The second way in which the applicant claimed that there had been a breach of procedural fairness related to the issue of the risk of the applicant reoffending. The applicant maintained that there was a breach of procedural fairness because the Minister did not invite the applicant to make submissions and provide evidence about his potential future substance abuse.

96    As will have been seen, the fact that the Minister could not “rule out” the possibility of further offending was a significant factor in his decision to cancel the applicant’s visa. One reason the Minister could not rule this out was that he could not rule out the possibility that the applicant would engage in substance abuse in the future, such abuse being a factor in his offending. The reason the Minister concluded that even a low risk of reoffending was “an unacceptable risk of harm” was that any future offending would result in harm to Australian children. I would not, therefore, accept, as the applicant suggested, that the issue of potential future substance abuse was the sole significant factor that weighed against the applicant, because another significant factor as disclosed in the Minister’s reasons was the nature of the applicant’s offending.

97    The Minister’s reasons discussed the material before him relating to the risk of reoffending in some detail, referring in turn to the sentencing judge’s remarks, the references in these remarks to the report of Dr Thomson (a psychologist), the applicant’s own representations and the letters of support: see [22]-[27] above. The Minister found that the applicant’s “offending was the result of work pressure, financial stress and relationship difficulty and exacerbated by his ongoing drug and alcohol abuse” (emphasis added). Accepting that the applicant had made “some good progress in his rehabilitation” and that his remorse and insight, family and community support, stable accommodation and employment lessened the risk of further offending, nonetheless the Minister found that there was an “ongoing” “low” risk that the applicant would reoffend. The Minister was “concerned with [the applicant’s] possible future substance abuse, particularly if he finds himself in stressful situations”. He found that “there is a risk in [the applicant] engaging in substance abuse which increases the risk of his reoffending”, noting that there was no “current information relating to the substances abuse which exacerbated [his] offending”. For this reason, the Minister was unable to conclude that there was no risk of the applicant reoffending in the future.

98    For the following reasons, I would reject the applicant’s submission that he was not afforded an opportunity to make submissions and provide evidence about his potential future substance abuse. The applicant was clearly informed at the outset of the adverse, credible and relevant material available to the Minister concerning this issue. He was put on notice of the potential relevance of this issue in the decision-making process. He was given an opportunity to provide information and evidence in response to it.

99    The June 2017 Notice informed the applicant that his opportunity to comment and provide information included “on whether the decision-maker should exercise his or her discretion to cancel your visa”. The notice also outlined the relevance of the accompanying Direction 65: see [79] above. As already explained (at [79]), the applicant would have understood that Direction 65 set out the kinds of issues that the Minister could consider relevant to such a decision. Clause 9.1.2 of Direction 65 was in these terms:

9.1.2    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    In considering whether the non-citizen represents an unacceptable risk of harm     to individuals, groups or institutions in the Australian community, decision-    makers should have regard to the principle that the Australian community's     tolerance for any risk of future harm becomes lower as the seriousness of the     potential harm increases. Some conduct and the harm that would be caused if     it were to be repeated, is so serious that any risk that it may be repeated may     be unacceptable.

(2)     In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

a)     The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

  b)     The likelihood of the non-citizen engaging in further criminal or other     serious conduct, taking into account:

    i.     information and evidence on the risk of the non-citizen re-    offending; and

ii.    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

…

100    In reading this document, the applicant would have been made aware of the fact that the decision-maker was likely to consider and assess the risk that he might again commit a child pornography-related offence or offences and that, if so, the decision-maker would take into account the available information and evidence relevant to assessing this risk. Further, assuming as I do that the applicant would have read Direction 65 carefully, he would have been made aware that, in the case of serious offending, the decision-maker might find that any risk that he may reoffend was unacceptable. Bearing in mind that he had been convicted of what were undoubtedly serious offences, the applicant would therefore have been made aware that he should place all relevant information and evidence that he could before the decision-maker to satisfy the decision-maker that there was no risk of his reoffending.

101    The result was that the June 2017 Notice (accompanied as it was by Direction 65, the applicant’s National Police Certificate and the sentencing judge’s remarks) would have put the applicant on clear notice that the focus of the decision-maker’s concern regarding his reoffending was the risk that the applicant would repeat the conduct that had resulted in convictions for child pornography-related offences. As indicated below, the sentencing remarks contained information adverse to the applicant that, on any view, was “credible, relevant and significant” to the issue of substance abuse. The very fact that these remarks were sent to the applicant with the June 2017 Notice should have indicated to the applicant that the remarks, including those with respect to substance abuse, could be used by the decision-maker in making a decision under s 501(2) of the Migration Act. If the applicant had any doubt about this, however, the June 2017 Notice expressly stated that Direction 65, the applicant’s National Police Certificate and the sentencing remarks “consist of information … which the decision-maker may rely on to decide whether you pass the character test; and if not, whether your visa should be cancelled”.

102    In his remarks, the sentencing judge emphasised that substance abuse was a factor in the applicant’s offending. His Honour referred at the outset to the applicant’s “acknowledged long term dependence on cannabis” and “acknowledged alcohol dependence”. He accepted that the applicant’s offending had “occurred in the setting of work pressure, financial stress, and relationship difficulty”, at a time when his life “revolved around work, alcohol abuse and the internet”. His Honour referenced Dr Thomson’s professional opinion that the applicant had “poor coping skills resulting in problems avoidance and substance abuse [leading] to excessive internet use, including accessing child pornography for sexual gratification and mood enhancement”. Significantly, the sentencing judge also found that, as at the date of sentencing (17 September 2012) the applicant still had “substance abuse problems, which, although moderated, still need to be addressed”, adding that his “offending … occurred in the setting of cannabis and alcohol abuse”. His Honour summed up the position with respect to the applicant’s rehabilitation, saying “[i]n short, [the applicant had] made good progress” although more treatment was needed and, relevantly in the present context, “treatment concerning substance abuse is still in the early stages”.

103    Procedural fairness required that the applicant be given the substance of the sentencing judge’s remarks, being adverse information of a credible, relevant and significant kind available to the decision-maker. These remarks were given to the applicant. As I have said, the applicant was put on notice that the decision-maker could rely on these remarks when they were included with the June 2017 Notice. Given the nature of the decision that the Minister might make if the s 501(2) discretion were enlivened and the contents of the June 2017 Notice, with its enclosures (including Direction 65 and the applicant’s National Police Certificate), the relevance of these remarks to a prospective decision would have been clear.

104    As observed above, the applicant would have been made aware by Direction 65 that the risk of his reoffending was a matter that would be considered if the decision-maker were a delegate and could be considered if the decision-maker were the Minister. In contrast to Stowers and Degning, in the circumstances of the present case, it does not seem to me that procedural fairness required the decision-maker to do more to bring the issue of the applicant’s substance abuse to his attention. This was because the sentencing remarks made it tolerably clear that the sentencing judge considered that substance abuse had played a not insignificant part in the matrix of circumstances that led to the applicant’s offending, and that his Honour had specifically found that as at 17 September 2012 the applicant’s treatment for substance abuse was only in its “early stages”. Given the serious consequences of a decision to cancel his visa, the applicant can be taken to have read these remarks and thus to have been made aware that the sentencing judge had found that substance abuse had contributed to his offending and had intimated that the applicant would require further treatment to address this particular issue. He would therefore have been on notice that his substance abuse could well be an issue for the decision-maker to consider in exercising the discretion in s 501(2) of the Migration Act. This was because, on any view, in assessing the risk of the applicant’s reoffending, it was evidently open to the decision-maker to consider whether the factors that had led to his past offending might lead to his future reoffending. The June 2017 Notice contained a clear invitation to the applicant to supply responsive material. Direction 65 referred to an assessment of the risk of reoffending being made on information and evidence available to the decision-maker. It was clearly open to the applicant to make submissions and provide evidence concerning the substance abuse issue.

105    I am confirmed in my view that there was nothing more required to be done to put the applicant on notice of the substance abuse issue in order that he might address it through submissions and evidence by the fact that in completing his personal circumstances form the applicant himself recognised that the issue of substance abuse might impact on an assessment of the risk that he would reoffend.

106    Under the heading “CRIMINAL HISTORY AND RISK OF REOFFENDING” (emphasis in original), the applicant was asked “[d]o you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?” The applicant responded:

While there are no excuses, I went through a very low point in my life with the breakdown of my relationship. I turned to drugs and alcohol to suppress my anxiety and depression which dragged me to a further low point. I withdrew from friends + family and found myself addicted to internet pornography. This behaviour spiralled further out of control until I reached the lowest part which led to my arrest and consequent prison term.

(Emphasis added.)

107    He answered two further questions under this heading, including “[h]ave you completed any courses or programs that will help you to avoid further offending and to make a positive contribution to the community? Please provide evidence e.g. course completion certificates”. The applicant responded:

Soon after my arrest I sought professional help from a psychologist to help me to understand my behaviour. I continued this treatment every fortnight for 10 months until I was satisfied that I fully understood the consequences of my actions and behaviours.

108    In a further question, the applicant was asked “[w]hat do you think is the likelihood that you may reoffend now?” The applicant replied:

Unlikely as I have been released from prison for nearly five years. The original behaviour was not in my normal character. Prison is a very big deterrent and the thought of deportation is a very scary prospect as I have lived here all of my life.

109    It is clear from his answers that the applicant was aware that substance abuse had contributed to his offending and had necessitated treatment. Indeed, so was his sister. In her letter of support included in the material available to the Minister, his sister said that she recalled her brother was “not himself and had turned to heavy alcohol usage” and that this and other issues “most definitely contributed to my brother’s behaviour and conduct leading up to his breaking the law”. She added that he had been assisted by a psychologist “to work through his actions and to assist him in returning to positive lifestyle decisions”. The applicant’s mother also referred to the fact that he received counselling after he was released from prison, affirming that “[t]his was very beneficial in helping him to get his life back on track”.

110    The applicant was on notice that the decision-maker could have regard to the risk of his reoffending in making a decision on his visa. The relevance of the applicant’s substance abuse to the larger issue of the risk of his reoffending would have been apparent to him given his understanding of the circumstances that led to his offending and his need for treatment. That he understood the connection is indicated by the fact that, in his completed personal circumstances form, he related his substance abuse at the time of his offending under the heading “Criminal history and risk of reoffending” and referred to his treatment by a psychologist. Reference to the sentencing judge’s remarks would have confirmed the relevance of future substance abuse to the risk of future reoffending. The fact that the sentencing judge had found that his treatment for substance abuse was only in its “early stages” at the time he was sentenced would have drawn his attention to the fact that a decision-maker could treat it as an ongoing concern if there was nothing to show that it had been fully addressed by the applicant.

111    The applicant had an opportunity in completing his personal circumstances form to address the possibility that he might engage in future substance abuse. He also had an opportunity to detail any treatment he had since received for substance abuse and the effect of treatment on him. It would also have been open to him to have supplied independent evidence of this treatment (for example, by providing a report from his treating psychologist), a possibility indicated by the June 2017 Notice, the personal circumstances form, and Direction 65.

112    In his reasons for the decision (see [22]-[27] above), the Minister specifically referred to the applicant’s statements in his completed personal circumstances form that deterring factors against his reoffending included prison and the thought of his removal from Australia. He referred to the applicant’s statement about seeing a psychologist and to the letters of support referring to the applicant’s engagement with that psychologist. As the Minister observed, however, the fact was that the applicant did not provide “any evidence in regards to his rehabilitation from substance abuse”. In the absence of “any current information relating to the substances abuse”, it was open to the Minister in the circumstances of the applicant’s offending to conclude that there remained a low risk that the applicant might reoffend, bearing in mind the possibility that the applicant might engage in substance abuse again. Such a conclusion was “obviously open on the material”, having regard to the sentencing judge’s remarks in September 2012 and the other material available to the Minister.

113    For these reasons, I reject the applicant’s submission that there was a breach of procedural fairness because the Minister did not invite the applicant to make submissions and provide evidence about his potential future substance abuse. The applicant was given the credible, relevant and significant information available to the Minister on this issue, in the form of the remarks of the sentencing judge. The applicant was put on notice of this issue by these remarks and other documents supplied to him. His response in his completed personal circumstances form indicated that he was aware of this issue.

114    In substance the applicant’s complaint is that the Minister did not accept the applicant’s representations that there was no risk that he would reoffend. This is not, however, a legitimate basis on which to set aside the Minister’s decision. The applicant’s complaint does not disclose a lack of procedural fairness.

disposition

115    For the reasons stated, the applicant has failed to establish that there was a breach of procedural fairness that vitiated the Minister’s decision to cancel his visa, and the application should be dismissed with costs.

Associate:

Dated:    21 May 2020