FEDERAL COURT OF AUSTRALIA

Williams v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 814

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The applicant’s further amended originating application filed on 17 April 2019 be dismissed.

3.    On or before 22 June 2020, the parties may file and serve written submissions as to costs, not to exceed 3 pages, or alternatively, an agreed note as to costs.

4.    The question of costs shall be determined on the papers.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    This is an application for judicial review of a decision made by the Assistant Minister for Immigration and Border Protection on 14 March 2017, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), not to revoke an earlier decision to cancel the applicant’s visa on character grounds. For the following reasons, the Court has determined that the application should be dismissed with costs.

Procedural issues

2    Two procedural issues arose in this proceeding, both of which were cooperatively resolved between counsel, and which I shall address briefly at the outset of these reasons.

Two applications

3    First, an issue arose because the applicant filed two originating applications seeking judicial review of the Assistant Minister’s non-revocation decision. The first application was lodged on 18 April 2017 in proceeding VID 424 of 2017, and the second application was lodged on 2 May 2017 in proceeding VID 438 of 2017. The first application was handwritten and filed by the applicant in his own name, and the second application was typed and professionally prepared by lawyers acting on the applicant’s behalf.

4    On 5 June 2017, the Court made an order that the two proceedings be heard together. Then on 11 April 2019 and by consent, the Court made orders to maintain the first proceeding and dismiss the second proceeding. The Court made orders in proceeding VID 438 of 2017 that pursuant to r 30.25 of the Federal Court Rules 2011 (Cth), all evidence in that proceeding be treated as having been filed in proceeding VID 424 of 2017, and that proceeding VID 438 of 2017 be dismissed with no order as to costs. The applicant now pursues his application in proceeding VID 424 of 2017, and this judgment determines that proceeding.

Proper respondent to the proceeding

5    Second, an issue arose in relation to the proper respondent to the proceeding, in circumstances where it was the Assistant Minister, rather than the Minister, who personally made the non-revocation decision under review.

6    The applicant and the Minster agreed that the proper respondent to the proceeding was the Minister, and not the Assistant Minister. This was said to be for two reasons. First, the non-revocation decision was made by the Parliamentary Secretary to the Minister, adopting the title “Assistant Minister for Immigration and Border Protection”, and in making the non-revocation decision, he was acting in his capacity as the “Minister” as that term is used in s 501CA(4) of the Migration Act, read with s 19(1) Item 1 and s 20 of the Acts Interpretation Act 1901 (Cth): see, Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209 (Bromwich J, with whom Bromberg J and Charlesworth J agreed). Second, if the Court were to make an order for mandamus compelling that the decision whether to revoke the cancellation of the applicant’s visa be re-made according to law, that order should be directed to the holder of the office of the Minister. The applicant and the Minister further agreed that the Minister’s title, which at the time of the non-revocation decision was the “Minister for Immigration and Border Protection” and which is now the “Minister for Immigration, Migrant Services, Multicultural Affairs and Citizenship”, should be amended. The Court will make an order amending the name of the respondent to reflect the Minister’s current title.

Background

Migration to Australia, criminal conduct and cancellation of the applicant’s visa

7    The applicant is a citizen of Sri Lanka who came to Australia on 20 January 1988 as a nine year old child. The applicant’s father held a skilled labour visa, and the applicant entered Australia as a dependent family member. The applicant’s name at that time was Sanjeewa Gayan Rajakaruna. He is now known as Simon Michael Williams. The applicant was granted a Return (Residence) (Class BB) visa, subclass 155 (Five Year Resident Return) on 29 January 1998.

8    Since arriving in Australia, the applicant has been convicted of a number of criminal offences, the most relevant of which are as follows.

9    On 4 February 2009, following a protracted series of criminal proceedings, including two successful appeals, upon pleas of guilty the applicant was convicted in the County Court of Victoria of one count of rape and one count of assault, both of which occurred on 27 September 2000. The sentencing judge described the applicant’s offending behaviour as “abhorrent and repugnant” and as “being of a serious kind” and sentenced the applicant to a term of imprisonment of five years for the rape and to a concurrent term of one year for the assault. The sentencing judge fixed a non-parole period of three and a half years, which had expired at the time of sentencing. On 22 December 2010, a delegate of the Minister, having regard to the applicant’s offending, considered cancelling the applicant’s visa under s 501(2) of the Act. The delegate decided not to cancel the applicant’s visa, and formally warned him that future criminal conduct could result in visa cancellation.

10    On 16 August 2011, the County Court of Victoria made a supervision order in respect of the applicant pursuant to the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). The supervision order was later confirmed on 8 November 2013 pursuant to s 73(8) of the Act. Upon receipt of information about the making of the supervision order, the Minister considered cancelling the applicant’s visa. On 2 April 2012, the Minister decided not to cancel the applicant’s visa, and again formally warned him that future criminal conduct could result in visa cancellation.

11    On 27 March 2015, the applicant was convicted in the County Court of Victoria of four counts of breach of his supervision order. He was sentenced to eight months’ imprisonment in total. Consequently, on 7 July 2015, the Minister cancelled the applicant’s visa under the mandatory provisions of s 501(3A) of the Act. That cancellation was on the grounds that the applicant failed the character test because he had a substantial criminal record as defined in s 501(7) of the Act, and that he was at that time serving a term of imprisonment. By a letter dated 7 July 2015, the Department notified the applicant of the cancellation of his visa and invited him to make representations to seek revocation of the decision to cancel his visa. That letter enclosed a number of documents in relation to the applicant held by the Department at that time.

Request for revocation of the cancellation decision and refusal of that request

12    On 31 July 2015, the applicant made a request to the Minister pursuant to s 501CA(4) of the Act for revocation of the mandatory cancellation of his visa. Then followed a lengthy process during which the applicant and the Department exchanged correspondence in relation to the applicant’s revocation request, the material parts of which I shall summarise later in these reasons. On 14 March 2017, the Assistant Minister, acting personally, determined not to revoke the decision to cancel the applicant’s visa. The Assistant Minister decided that the applicant did not pass the character test, and that there was not another reason to revoke the cancellation decision. The applicant was notified of the Assistant Minister’s non-revocation decision in correspondence from the Department dated 14 March 2017, which attached a copy of the Assistant Minister’s statement of reasons for the non-revocation decision.

13    In making the non-revocation decision, the Assistant Minister had regard to the applicant’s background, including the applicant’s criminal convictions and the prior warnings given to the applicant about visa cancellation, summarised above. The Assistant Minister also had regard to three further criminal charges that were pending against the applicant, two for allegedly soliciting sexual services and the third for an alleged assault. The part of the Assistant Minister’s statement of reasons that addressed those further pending criminal charges stated –

91.    I note that Mr WILLIAMS has three pending charges that have not yet been determined by a court; two charges relate to allegedly inviting or soliciting sexual services, and one to an alleged assault on his community corrections supervising officer.

92.    I note that the circumstances leading to Mr WILLIAMS’ 2015 convictions for non-compliance with his Supervision Order, form part of the two soliciting charges. I have therefore given these charges some limited weight although noting they have not been determined by a court.

93.    In relation to the alleged assault on his community services officer, the subject of one pending charge, although not yet determined by a court, I note the alleged behaviour is consistent with some of Mr WILLIAMS’ violence-related conduct.

The focus of the application, further background and evidence

14    The present application to this Court for judicial review of the Assistant Minister’s non-revocation decision is focussed on the process undertaken by the Department and the Assistant Minister in considering the applicant’s revocation request. In particular, it is focussed on the lawfulness of that process in light of the Assistant Minister’s consideration of the charges pending against the applicant in making the non-revocation decision.

15    That focus developed during the course of the proceeding in this Court. The applicant’s application initially relied only on correspondence between his representative and the Department during the revocation review process to advance his claim that he was not afforded procedural fairness. In that correspondence, the applicant’s representative requested that the Department provide the applicant with information that it held in relation to the pending charges, and further time to obtain the police briefs of evidence for the pending charges before any decision whether to revoke the cancellation of his visa was made, but the Department after granting some extensions of time refused to delay further, and the Assistant Minister proceeded to make the non-revocation decision. Then, during the course of the proceeding in this Court, the applicant learned that the Department had obtained a copy of the police brief in relation to the assault charge during the revocation review process, but did not provide it to him despite his requests. That led the applicant to amend his application.

16    I shall now summarise the material correspondence between the applicant and the Department during the revocation review process, then set out a brief account of how the applicant learned that the Department had obtained a copy of the assault charge police brief, and finally summarise the relevant evidence before the Court.

Correspondence in relation to the further pending criminal charges

17    The material correspondence between the applicant and the Department during the revocation review process may be summarised as follows.

18    As stated above, on 31 July 2015, the applicant made a request to the Minister for revocation of the mandatory cancellation of his visa.

19    By an email dated 26 August 2015, the applicant’s representative lodged a request to the Department under the Privacy Act 1998 (Cth) and the Freedom of Information Act 1982 (Cth) for information and documents. That request included a request for “all … information in relation to his criminal charges, hearings and convictions”, and stated that the requested documents were required to prepare the applicant’s submissions to the Department seeking revocation of the cancellation decision. The evidence before the Court does not disclose what, if anything, the applicant received in response to this request.

20    By an email dated 21 September 2015, the applicant’s representative sent to the Department written submissions in support of the applicant’s revocation request.

21    By a letter dated 30 August 2016, an officer of the Department informed the applicant and his representative that –

The department has information which has been received and which may be taken into account when making the decision whether to revoke the decision to cancel your visa under s 501CA of the Migration Act. The information consists of:

•    Your National Police Certificate dated 24 July 2015

•    Supervision Order Progress Report by Dr Michael Davis, dated 27 May 2015

•    County Court of Victoria Ruling dated 16 August 2011

•    Psychiatric Assessment Report by Dr Lester Walton dated 17 September 2013

•    County Court of Victoria, Reasons for Judgment, dated 8 November 2013

•    Neuropsychological Assessment Report, Dr Nathaniel Popp, dated 4 June 2014.

A copy of this information is attached. You are invited to comment on this information. …

22    The first attached document, being the applicant’s National Police Certificate dated 24 July 2015, included the following reference to one of the pending charges against the applicant –

23    The second attached document, being the Supervision Order Progress Report by Dr Michael Davis dated 27 May 2015, included detailed reference to the applicant’s conduct that was the subject of all three charges pending against him. The first two pending charges, one of which was referred to in the National Police Certificate, related to the applicant allegedly soliciting sexual services on two separate occasions in November 2014. That conduct also gave rise to the applicant’s convictions for breaching his supervision order. The report included a detailed account, spanning seven pages, of the applicant’s alleged conduct on those two occasions, and his comments including admissions in relation to that alleged conduct, made during an interview with Dr Davis. The report did not refer to the fact that the solicitation charges had been laid and were pending against the applicant. The third pending charge related to the applicant allegedly assaulting his community services case officer, Shane l’Anson, on 5 August 2014. The report again included a detailed account of the applicant’s alleged conduct, spanning two pages, and his comments including admissions in relation to that alleged conduct, made by the applicant during an interview with Dr Davis. The report did refer to the fact that the assault charge had been laid and was pending against the applicant.

24    The other attached documents did not address the further criminal charges pending against the applicant.

25    By a letter dated 19 September 2016, the officer of the Department informed the applicant and his representative that –

The department has information which has been received and which may be taken into account when making the decision whether to revoke the decision to cancel your visa under s 501CA of the Migration Act. This consists of advice of three pending charges which have not yet been determined by the courts. These are:

•    Invite/solicit a person for sexual services on 14 November 2014

•    Solicit sex work services in a public place on 13 May 2015

•    Assault against your community corrections supervising officer in August 2014.

Reference to some of these pending charges is made in your National Police Certificate dated 24 July 2015 and the Supervision Order Progress Report by Mr Michael Davis dated 27 May 2015, both of which were previously sent to you.

You are invited to comment on the pending charges. …

…

Any response that you make should be received by the department no later than 14 days from the date you are taken to have received this letter.

26    The reference in the above letter to the second solicitation offence occurring on 13 May 2015 was a slip, as that was the court date that had been recorded on the National Police Certificate dated 24 July 2015. This was corrected by the Department in later correspondence of 5 December 2016, which is referred to below.

27    By an email to the Department dated 20 September 2016, the applicant’s representative stated that –

We note that Mr. Williams has been invited to comment on three pending charges. We respectfully submit that we have not been provided with sufficient particulars of these charges to be able to provide a response. We would greatly appreciate it if you could provide us with further information held by the Department in relation to all of these charges, including but not limited to the Court that the matters are to be heard in and the Informant for each charge, so that we can obtain further information and instructions from our client.

We note that a response is due to be provided to the previous invitation to comment sent on 30 August 2016 by 27 September 2016. A response to the latest invitation to comment dated 19 September 2016 is due by 3 October 2016.

As the subject matters of both invitations to comment overlap, and in light of the seriousness of the information provided to comment on, we also request further time to be able to respond to both invitations to comment in the interests of natural justice.

[Emphasis added]

28    By an email dated 21 September 2016, the officer of the Department informed the applicant’s representative that –

The Department has no further information it is proposing to obtain or place before the revocation decision maker in relation to the pending matters. You will note that reference is made to pending matters in some of the documents already sent to Mr Williams and it is for this reason that they have specifically been brought to your attention. These documents include his National Police Certificate dated 24 July 2015 and the report of Dr Michael Davis dated 27 May 2015.

In relation to an extension of time to respond, I am happy to provide 28 days from today. Should you require further time beyond this, please let me know at any time.

[Emphasis added]

29    By an email dated 19 October 2016, the applicant’s representative sent to the Department written submissions and other documents in support of the applicant’s revocation request. In the written submissions, the applicant’s representative responded to the Department’s invitations to comment and, amongst other things, made representations about the three pending charges –

Charge 1

In relation to charge 1 as outlined in the invitation to comment, namely “invite/solicit a person for sexual services on 14 November 2014”. We submit that it is unclear what this alleged charge relates to, as we have not been provided with sufficient particulars. Furthermore, we have been unable to locate particulars of this charge in the Supervision Order Progress Report by Dr. Michael Davis or the police clearance certificate. We note that Dr. Davis refers to the incident on 14 November 2014, however we are instructed that this conduct has been dealt with by way of charges and subsequent convictions for breaching his supervision order. We are instructed by Mr Williams’ criminal lawyer that she is not aware of this alleged pending charge against Mr. Williams and that he cannot be charged with further offences arising out of an incident that has already been dealt with by the Court. Accordingly, we submit that we are not in a position to comment further in relation to this alleged pending charge.

Charge 2

Regarding charge 2, namely “solicit sex work services in a public place on 13 May 2015”, we note that this charge is listed on Mr. Williams’ AFP check, which was obtained by the Department and is dated 24 July 2015. We further note that 13 May 2015 is recorded as the court date, not the date of offence, and that Mr. Williams was in custody in May 2015. Therefore, it is unclear whether this alleged charge is the same as charge 1. Furthermore, we are instructed by Mr. Williams’ criminal lawyer that she is not aware of such a charge against Mr. Williams. We note that we do not have sufficient particulars to be able to respond further to this charge.

Charge 3

In relation to charge 3, namely “assault against your community corrections supervising officer in August 2014”, we are instructed by Mr. Williams’ criminal lawyer that she is aware of this charge. However, we are instructed that this matter has been adjourned and the Court does not attend [sic] to hear this charge unless Mr. Williams’ immigration matter is resolved and he is released back into the community. While Mr. Williams’ criminal lawyer has requested a copy of the brief in relation to this charge, she has not received it to date. Therefore, we do not have access to the prosecution’s case and evidence in relation to this charge, and consequently we do not have sufficient particulars to respond to this charge.

We submit that, if the Department is to take these pending charges into consideration when making a decision in relation to Mr. Williams’ revocation application, further particulars need to be provided to Mr. Williams to enable him to adequately respond to the adverse information.

30    By a letter dated 5 December 2016, the officer of the Department informed the applicant and his representative that –

In a letter dated 19 September 2016, you were provided with some details of two pending soliciting charges and an assault charge against you.

The information included that one of the charges was solicit sex work services in a public place on 13 May 2015. Your legal representative responded to this letter and questioned the date of the offending.

Enquiries made by the Department have clarified with the police that the date of the alleged offending for this particular pending charge was 8 November 2014, and the charge was activated on 13 May 2015.

The police informant also confirmed that the other pending charge against you of invite/solicit a person for sexual services relates to alleged conduct on 14 November 2014; this is not affected by the court considering the circumstances in the breaching of a supervision order matter.

You are invited to comment on this new information. …

31    By an email to the Department dated 8 December 2016, the applicant’s representative stated that –

We note from the invitation to comment that the Department has made enquiries with the informant to obtain further information in relation to two of Mr. William’s pending charges. In order to respond to the invitation to comment, we require further information regarding the charges so that we can make necessary enquiries with the relevant third parties. Accordingly, we respectfully request the contact details for the informant as well as any documentary evidence provided to the Department by the police, including charge sheets and police briefs.

We note that this is an extremely serious matter and respectfully ask that our client is provided with additional time to be able to obtain the necessary information to respond. In light of our request for additional information and the necessary enquiries that our client will need to make regarding these charges, combined with the upcoming Christmas break, we kindly ask for a further 28 days from the original due date to provide our response. However, as our client will be making enquiries for information from third parties, we note that we may require additional time due to the holiday season.

[Emphasis added]

32    By an email to the applicant’s representative dated 16 December 2016, the officer of the Department stated that –

The informants in relation to the soliciting matters are Stefan Boskovic and Emma Legg of St Kilda Police.

The informant in relation to the assault matter is Mark Deacon of Ringwood Police.

As previously advised by email dated 21 September 2016, the Department has no further information it is proposing to place before the decision maker in relation to these matters, other than the references to the incidents contained in documents already provided to you, specifically the National Police Certificate dated 24 July 2015 and the report of Dr Michael Davis dated 27 May 2015. This position remains unchanged.

In relation to your request for an extension of time to respond, I can confirm an extension until 16 January 2017. Please let me know should you need a further extension at that time.

[Emphasis added]

33    By an email dated 13 January 2017, the applicant’s representative informed the Department that –

We have been in contact with Mr. Williams’ criminal lawyer, who has been making enquiries with the informants to obtain further information regarding the pending charges. We have been advised by the criminal lawyer that they have not yet received the requested documents from the informants and that a further extension will be required, particularly due to delays caused by the Christmas break. She has not at this stage been able to provide us with an indication from the informants as to when they expect to be able to provide us with the briefs.

We appreciate your understanding to date and kindly request a further extension of 28 days to respond to this information. We would also greatly appreciate it if the response to the latest invitation to comment dated 11 January 2017 could be extended to be due on the same date to reduce overlap of responses.

34    By an email dated 16 January 2017, the officer of the Department informed the applicant’s representative that “[a] further extension of time to respond to all letters is approved, which will mean a response is due by COB 13 February 2017”.

35    By an email dated 10 February 2017, the applicant’s representative informed the Department that –

We have been advised by our client’s criminal lawyer that they are yet to receive the briefs in relation to two of the three pending charges despite numerous attempts. We enclose written confirmation of these attempts to obtain the required information from the informants.

We understand that it is important that this matter is resolved efficiently. However, as we have not yet been able to obtain the required information in relation to two of the pending charges, we are unfortunately not in a position to provide a response at this time. We would greatly appreciate it if you could provide us with a further 28 days to respond to the invitations to comment, in light of the seriousness of the matter and the difficulties in obtaining information from third parties.

36    That email attached an email from the applicant’s criminal lawyer’s office to the applicant’s representative also dated 10 February 2017, which stated that the applicant’s criminal lawyer’s office had requested a copy of the police briefs from each of the respective Victoria Police informants, but had only succeeded in obtaining one of the briefs from Constable Boskovic. The email stated that the police brief was enclosed, and on the face of the email, it appears that it was in fact attached, but it is not in evidence before the Court.

37    By an email to the applicant’s representative dated 13 February 2017, the officer of the Department stated that –

I have discussed your request for a further extension of time with my manager. In view of previous extensions granted and the need to finalise Mr Williams’ request for revocation of visa cancellation, and given the information available in relation to pending charges contained in documents already sent to Mr Williams, I am not able to approve a further extension of time of 28 days.

Please provide any further response you wish to make by COB 21 February 2017.

38    Separately to the correspondence between the applicant’s representative and the Department, by an email dated 17 February 2017, the applicant’s representative provided an update and sought further information from the applicant’s criminal lawyer –

We have been advised by the Department that they will give us a final extension to 21 February 2017. This means that we will need to respond on the basis of the information that we have to date. However, if the informants respond to you in the future, it would still be helpful to have a copy of the additional briefs if a decision hasn’t been made yet.

We have reviewed the brief that you have received and were wondering if you could provide us with some clarification. We understand that Simon has previously been convicted of breaching his supervision order as a result of two instances where he solicited sex services in St. Kilda. These incidents appear to have also led to the outstanding soliciting charges (one of which was the subject of the brief that you sent through to us). We just wanted to clarify whether it is possible to have two charges arising out of the same incident (ie. A soliciting charge and a breach of supervision order charge) or whether the soliciting charges can be challenged on the basis that he has already received convictions in relation to those events. This is a matter beyond our expertise so we would be grateful if you would be able to assist us.

39    In relation to the question raised by the applicant’s representative, I note the decision of the Victorian Court of Appeal in Lecornu v R [2012] VSCA 137; 36 VR 382 which held that there was no double punishment or abuse of process involved in an accused being prosecuted for breach of a condition of a supervision order, and other offences the commission of which constituted the breach. The applicant’s representative, in an affidavit affirmed on 26 June 2018 and which was read into evidence without objection, deposed that she did not receive any further information from the applicant’s criminal lawyer in response to that email.

40    By an email dated 21 February 2017, the applicant’s representative informed the officer of the Department that –

We confirm, as mentioned in our previous email dated 10 February 2017, that despite numerous requests to obtain the remaining two briefs in relation to the soliciting charge (Informant Emma Legg) and the assault charge (Informant Mark Deacon) we have not been successful in obtaining these. We confirm that we have still not obtained these briefs.

Consequently, we respectfully submit that we do not have sufficient information to respond to the invitations to comment, particularly in light of the seriousness of this matter and its importance to Mr. Williams’ revocation matter.

Accordingly, we wish to advise that we are not in a position to respond at this stage.

If more information has been received by your Department in relation to these charges, we kindly request that our client is advised of this and provided an opportunity to comment.

41    Following that email, the applicant and the Department did not exchange any further correspondence before the Assistant Minister made the non-revocation decision on 14 March 2017. As set out at [13] above, the Assistant Minister’s statement of reasons recorded his consideration of the further criminal charges pending against the applicant in making the non-revocation decision.

Evidence in relation to the Department’s and the applicant’s access to the police briefs

42    As stated above, during the course of the proceeding in this Court, the applicant learned that the Department had obtained a copy of the police brief in relation to the pending assault charge during the revocation review process, but did not provide it to him despite requests made by his representative.

The error in the court book

43    The fact that the Department had obtained a copy of the assault charge police brief became apparent because of an error in the court book prepared by the Minister’s legal representatives and filed with the Court on 3 July 2017. The court book mistakenly included a copy of the police brief in a way that conveyed the impression that it was attached to the letter from the Department to the applicant’s representative dated 19 September 2016 (see [25] above), when in fact it was not attached to that letter or otherwise provided to the applicant. That error was explained as a mistake by the solicitor acting for the Minister in an affidavit dated 28 March 2019, which evidence was not challenged.

44    The consequence was that the Court received evidence in relation to the Department’s and the applicant’s access to the assault charge police brief, and it became the subject of submissions. The Minister read into evidence affidavits that were to the effect that the Department had obtained a copy of the assault charge police brief during the revocation review process, and that it did not provide a copy of the police brief to the applicant, but also that Victoria Police had already personally served the police brief on the applicant, and that in any event, the police brief was not put before the Assistant Minister for his consideration in deciding whether to revoke the cancellation of the applicant’s visa. The applicant relied on affidavit evidence that was to the effect that he had not ever seen the police briefs relating to the pending charges, and also that the Department did not provide them to him during the revocation review process.

45    The applicant and the Minister did not dispute that the Department had not obtained a copy of the police briefs for the two solicitation charges pending against the applicant, and that those briefs were not put before the Assistant Minister for his consideration in deciding whether to revoke the cancellation of the applicant’s visa. The applicant and the Minister also accepted that the applicant’s representative had obtained from Victoria Police a copy of the police brief in relation to one of the pending solicitation charges, which is to be inferred from the email from the applicant’s criminal lawyer to his representative dated 21 February 2017 and the subsequent email to the Department also dated 21 February 2017 (see [36] and [38] above).

46    I also record that there was another error in the court book, namely that it included a copy of a “Victoria Police Criminal History Report” dated 31 May 2016 which was indexed in such a way as to give the misleading impression that it was attached to the letter from the Department to the applicant’s representative dated 5 December 2016 (see [30] above), when as explained in the applicant’s representative’s affidavit dated 26 June 2018, it was not attached to that letter or otherwise provided to the applicant. The report set out details of the applicant’s criminal history, including by listing the following items that appear to correspond to the two pending solicitation charges referred to in the correspondence –

The Department’s access to, and use of, the assault charge police brief

47    Carmen Muscat, the officer of the Department who had carriage of the applicant’s revocation request and who was the author of the correspondence from the Department summarised above, gave evidence in relation to the Department’s access to, and use of, the assault charge police brief. The Minister read into evidence an affidavit of Ms Muscat affirmed on 27 March 2019, and Ms Muscat was cross-examined on her evidence at the hearing of the proceeding.

48    Ms Muscat gave the following account –

(1)    On 26 August 2016, Ms Muscat sent an email to Senior Constable Mark Deacon of Victoria Police seeking information about the assault charge pending against the applicant. Ms Muscat referred to her earlier communications with Senior Constable Deacon in relation to the matter, and requested a copy of any document with details of the assault charge pending against the applicant, and which could be disclosed to him. Ms Muscat explained to Senior Constable Deacon that “we [the Department] are unable to place material before the revocation decision maker [the Assistant Minister] unless it has been released to the client [the applicant] and he has been given an opportunity to comment on it”.

(2)    On 1 September 2016, Senior Constable Deacon responded to Ms Muscat’s email and confirmed that there was an assault charge pending against the applicant. Senior Constable Deacon attached a copy of the police brief in relation to that assault charge, and stated that “he [the applicant] should have seen an original [of the police brief] from when it was served on him.”

(3)    After receiving the assault charge police brief, Ms Muscat, in consultation with her manager at the Department, decided not to use the police brief in the revocation review process. That is, Ms Muscat decided not to put the police brief before the Assistant Minister for his consideration in making the decision whether to revoke the cancellation of the applicant’s visa. Consequently, Ms Muscat considered that the Department was not required to provide a copy of the police brief to the applicant and invite him to comment on it. Ms Muscat explained that the main reason why she decided not to use the police brief was that the alleged assault that was the subject of the police brief had already been described in Dr Davis’s report, which had been provided to the applicant for comment. Ms Muscat stated that an additional reason was that it was not clear to her what Victoria Police had already released to the applicant, and she noted that Victoria Police had previously advised the Department in respect of other revocation requests that some information was not to be released to the public, including to the person making the revocation request.

(4)    Ms Muscat confirmed that she did not provide a copy of the police brief to the applicant or his representatives at any stage in the revocation review process.

(5)    Ms Muscat explained that she prepared the material that went before the Assistant Minister for his consideration in deciding whether to revoke the cancellation of the applicant’s visa, and that she did not include a copy of the police brief in that material. Ms Muscat further explained that she prepared a draft of the Assistant Minister’s reasons for not revoking the cancellation of the applicant’s visa, and that the Assistant Minister made the non-revocation decision by signing a copy of those draft reasons, without making any amendments.

The applicant’s access to the assault charge police brief

49    The applicant and the Minister each read into evidence affidavits in relation to whether Victoria Police served the applicant with a copy of the assault charge police brief. Leave was given to both parties to re-open their cases for this purpose, and the further evidence was received at a hearing on 19 December 2019. That evidence was, on its face, conflicting.

50    The Court received into evidence an affidavit of the applicant affirmed on 3 September 2019. The applicant was not cross-examined on his evidence. The applicant deposed that prior to these proceedings, he had not seen the police briefs for any of the three further criminal charges pending against him, and specifically that Victoria Police did not serve a copy of the assault charge police brief on him. In addition, the applicant also relied on an affidavit of his father affirmed on 18 April 2019 who deposed that the applicant had told him that he never received a copy of the assault charge police brief.

51    The Minister read an affidavit of Senior Constable Matthew Byron of Victoria Police affirmed on 22 November 2019. Senior Constable Byron was not cross-examined on his evidence. Senior Constable Byron deposed that Victoria Police records, including an “Affidavit/Declaration of Service of Charge – Sheet and Summons” document that was annexed to his affidavit, indicated that he had personally served the applicant with a copy of the assault charge police brief in Port Philip Prison on 13 March 2015, being two years before the non-revocation decision was made. The “Affidavit/Declaration of Service” document was a completed form to that effect, bearing Senior Constable Byron’s signature. Senior Constable Byron further deposed that while he did not recall serving the police brief on the applicant, he had served many documents on persons in Port Philip Prison, and he had no reason to believe that the “Affidavit/Declaration of Service” document did not accurately reflect what had occurred. Senior Constable Byron concluded that having regard to the Victoria Police records and his own general practice, “I believe that I personally served Mr Williams at Port Philip Prison on 13 March 2015 with the charge sheet and summons and a preliminary brief [the police brief] relating to the alleged assault.”

Application for judicial review

52    The applicant seeks an order in the nature of certiorari quashing the Assistant Minister’s decision, and an order in the nature of mandamus requiring that his request for revocation of the cancellation decision be determined according to law, in the exercise of the Court’s jurisdiction under s 476A of the Migration Act.

53    By his further amended originating application filed on 17 April 2019, the applicant advanced three grounds of review –

1.    The decision of the Minister was made in breach of a condition upon its exercise, being that it was procedurally fair.

Particulars

(a)    An issue in the review was the significance of three outstanding charges against the applicant, which constituted “relevant information” (and adverse information).

(b)    The applicant complained of not being aware of the circumstances surrounding these charges, and thus, of not being able to comment on the adverse information.

(c)    On 10 February 2017, the applicant requested further time in which to obtain information and particulars in relation to the charges against him.

(d)    On 13 February, an officer of the Commonwealth refused that request for further time and demanded that any comment in relation to this information by [sic] provided by 21 February 2017.

(e)    However, there was no power to “refuse” such a request, and the officer of the Commonwealth misled the applicant into thinking he could not have such an opportunity.

(f)    The Minister placed weight on the circumstances alleged to underlay the charges.

(g)    In the premise, the applicant was not afforded a sufficient opportunity to comment on these outstanding charges.

2.    The decision of the respondent is affected by jurisdictional error because the respondent did not comply with an implied condition on the lawful exercise of power, being that he act on the basis of the most current information available to him.

Particulars

(a)    The respondent was presented with a brief of materials to consider in relation to the decision whether to revoke the cancellation of the applicant’s Class BB Subclass 155 Five Year Resident Return visa (the visa).

(b)    That brief included information about the fact of the applicant having been charged with criminal offences, and those offences not yet having been resolved by a court.

(c)    The Department of State administered by the respondent was in possession of the “police brief of evidence” in relation to those charges [at hearing, the applicant accepted that the Department was only in possession of the assault charge police brief], but did not give the police brief to the applicant’s representative despite specific requests for that police brief.

(d)    The respondent relied on the fact of the charges having been laid against the applicant, without being made aware by the Department that it was in possession of more recent information regarding the charges, not being the mere fact of the charges, relevant to that issue, being the police brief.

(e)    The failure to provide that information to the respondent meant that the respondent, constructively, acted on a basis other than acting on the most recent material available to him.

3.    The decision of the respondent is affected by jurisdictional error because the respondent did not comply with an implied condition on the lawful exercise of power, being that he afford procedural fairness to the applicant.

Particulars

(a)    The applicant repeats particulars (a)-(d) of ground 2.

(b)    The applicant’s ability to give a meaningful response to the question whether the respondent should place weight, adversely to the applicant, on the fact of there being pending charges against the applicant was materially diminished by the applicant’s representative not having the police brief.

(c)    The Department was aware, or should have been aware, of this disadvantage.

(d)    In response to requests for the police brief, the Department did not provide that document to the applicant’s representative and did not reveal that it was in possession of the police brief.

(e)    The failure to provide the applicant with the police brief, which information would have been helpful to the applicant in presenting his case, the Department imposed a practical disadvantage upon the applicant in relation to the procedure adopted for the making of the decision, which amounts to practical injustice.

Relevant legislation

54    The applicant’s revocation request, the revocation review process, and the Assistant Minister’s non-revocation decision were governed by s 501CA of the Migration Act, which relevantly provided –

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

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

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

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

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

   (b)    the Minister is satisfied:

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

(ii)    that there is another reason why the original decision should not be revoked.

…

55    As outlined above, on 7 July 2015, the Minister cancelled the applicant’s visa under the mandatory provisions of s 501(3A) of the Act. That was the “original decision” that engaged s 501CA(1) of the Act.

56    Section 501CA(3)(b) of the Act provided that as soon as practicable after making the cancellation decision, the Minister was required to invite the person whose visa was cancelled to make representations seeking revocation of the cancellation decision, within the period and in the manner ascertained in accordance with the regulations. Regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) relevantly prescribed that such representations “must be made…within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act.”

57    By a letter dated 7 July 2015, the Department provided the applicant with notice of that cancellation decision and particulars of the relevant information, and invited the applicant to make representations seeking revocation of the decision, in accordance with s 501CA(3) of the Act, which the applicant did on 31 July 2015. Then, on 14 March 2017 the Assistant Minister, in his capacity as the “Minister” under s 501CA(4) of the Act, decided not to revoke the cancellation decision, deciding that the applicant did not pass the character test, and that there was not another reason to revoke the cancellation decision.

Resolving the conflicting evidence

58    During the course of argument before the Court, the applicant accepted that his case was predicated on the fact that he had not been served with a copy of the assault charge police brief, and that he bore the onus of proving that fact. Therefore, it is necessary for the Court to decide whether the applicant was served with that police brief.

59    As outlined above, there is conflicting evidence before the Court as to whether the applicant was served with a copy of the police brief. In weighing the evidence before the Court I find, on the balance of probabilities, that the applicant was not served with a copy of the police brief. I do so for three reasons. First, and principally, the applicant gave unequivocal affidavit evidence to that effect, and the Minister did not seek to challenge that evidence by way of cross-examination. The absence of any challenge affects the weight that I give to that evidence: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1; 44 ALR 607 at 18 (Hunt J), citing Bulstrode v Trimble [1970] VR 840 at 846 (Newton J). Although I am not bound to accept the unchallenged evidence of the applicant on this point, I am not minded to reject it: see, Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 561 (Kirby P) and 586-588 (Samuels JA, with whom Meagher JA agreed). Second, while the Victoria Police “Affidavit/Declaration of Service” contemporaneous record suggests that the applicant was served with the police brief, Senior Constable Byron only gave evidence of his belief that he had served the applicant with a copy of it, and stated that he did not recall having done so. There is no reason to doubt the honesty of Senior Constable Byron’s affidavit evidence, and no criticism is made of it. However, it is based upon documentary records in circumstances where he did not specifically recall serving the brief. Third, and of a lower order of weight, other circumstantial evidence supports the finding that the applicant was not served with the police brief. The applicant’s father gave evidence that the applicant had told them that he never received a copy of the police brief, in circumstances where it was arguably in the applicant’s interests to inform him if he was served with it.

The applicant’s submissions

60    The applicant’s submissions may be summarised as follows.

Grounds 1 and 3 – procedural fairness

61    The applicant submitted that he was not afforded procedural fairness in the process that led to the Assistant Minister’s non-revocation decision. In particular, the applicant submitted that he was not afforded procedural fairness in light of the Assistant Minister placing weight on the pending charges in making the non-revocation decision, in circumstances where the applicant had repeatedly requested that the Department provide him with information that it held in relation to the pending charges, and further time to obtain the police briefs for the pending charges, and the Department did not notify him that it had the assault charge police brief or provide it to him, and after granting some extensions of time the Department refused to delay the matter further, and the Assistant Minister proceeded to make the non-revocation decision.

62    During the course of argument before the Court, counsel for the applicant accepted that grounds 1 and 3 of his application presented different shades of the same argument that the applicant was not afforded procedural fairness, and that they could be considered together. Ground 1 was prepared before the applicant learned that the Department had obtained the assault charge police brief, and was directed generally to the non-revocation decision being made before the applicant had a sufficient opportunity to comment on the pending charges. Ground 3 was prepared afterwards, and it was directed to the Department’s failure to provide the assault charge police brief to the applicant, which was said to impose a practical disadvantage on his opportunity to respond to the pending charges, which amounted to practical injustice.

63    The applicant accepted that the Department did not owe any specific obligations to notify him that it had obtained a copy of the assault charge police brief, or provide him with a copy of it, or grant him further extensions of time to comment on the pending charges before a decision whether to revoke the mandatory cancellation of his visa was made. The applicant also accepted that the assault charge police brief was not before the Assistant Minister when he made the non-revocation decision, and that the Assistant Minister did not have regard to it in making that decision. Further, the applicant made clear that he did not allege that the Assistant Minister did not truly make the non-revocation decision himself, in the sense of impermissibly deferring to anyone else in his fact-finding or opinion formation in making the non-revocation decision.

64    Nonetheless, the applicant submitted that, in the circumstances, he was denied procedural fairness. The applicant submitted that there were three ways in which that procedural unfairness could have been avoided, but none was adopted. First, the Assistant Minister could have made his decision whether to revoke the cancellation of the applicant’s visa without having regard to the pending criminal charges. Instead, the Assistant Minister at [91]-[93] of his statement of reasons, set out at [13] above, expressly placed “limited weight” on the two solicitation charges, and noted the assault charge. Second, the Department could have provided the applicant with a copy of the assault charge police brief, which it knew the applicant was seeking to obtain. Instead, the Department engaged in correspondence with the applicant’s representative which counsel for the applicant characterised as “careful”, in which the Department avoided suggesting that it had a copy of the police brief, but also avoided denying it. Third, the Department could have provided the applicant with more time to obtain the police briefs himself, so that he could make an informed comment to the Department in relation to the pending charges. The applicant submitted that there was no particular urgency for the decision whether to revoke the cancellation of his visa to be made, and that there was no statutory authority to impose a deadline for the applicant to comment on the pending charges, given that reg 2.52(2)(b) of the Migration Regulations was directory rather than mandatory in the jurisdictional sense, and the timeframe prescribed in that regulation had already elapsed. Instead, despite the applicant’s representative’s clear correspondence to the Department explaining that the applicant required the police briefs to comment on the pending charges, and the known fact that the applicant’s representative was actively making enquiries to obtain the police briefs but had not yet received them, the Department refused to further delay and the Assistant Commissioner proceeded to make the non-revocation decision.

65    The applicant submitted that if he had been afforded procedural fairness in the revocation review process, there was a realistic possibility that the Assistant Minister may have reached a different outcome by revoking the cancellation decision. In respect of his first suggested option, the applicant submitted that if the Assistant Minister did not have regard to the pending charges, he may have decided to revoke the cancellation decision. In respect of his second and third suggested options, the applicant submitted that if he had access to the assault charge police brief, or to all of the police briefs (noting that it was accepted that the applicant’s representative did have access to one of the solicitation charge police briefs), the applicant may have been able to make submissions to dissuade the Assistant Minister from putting weight on the pending charges, which may have resulted in the Assistant Minister revoking the cancellation decision. In particular, the applicant responded to the Minister’s submission that there was no new information in the assault charge police brief that was not included in the National Police Certificate and Dr Davis’s report, which were provided to the applicant as attachments to the Department’s letter dated 30 August 2019, such that the applicant having access to the police brief could not have made any difference. The applicant submitted that the Minister’s submission to the Court could only be made with the benefit of having reviewed the police brief, which opportunity had not been afforded to the applicant during the revocation review process. Further, the applicant submitted that irrespective of whether the information in the police brief was covered by the information in the National Police Certificate and Dr Davis’s report, the applicant having access to the police brief would nonetheless have been significant and changed the applicant’s capacity to comment to the Department on the pending charges. That was said to be because it was the source, rather than the content, of the information in the police brief that was significant. The applicant submitted that the police brief contained the material that Victoria Police proposed to use to prosecute him, and it was only with access to that brief, having regard to his privilege against self-incrimination, that he could make an informed comment to the Department in relation to the pending charge. The applicant further submitted that without the police briefs for all three pending charges, and in light of his privilege against self-incrimination, he adopted the prudent approach of seeking to obtain the briefs before making any comment to the Department in relation to the pending charges.

Ground 2 – most recent information

66    The applicant submitted that the Assistant Minister’s non-revocation decision was affected by jurisdictional error because he did not act upon the most current material available to him, being the assault charge police brief that was obtained by the Department during the revocation review process, but not put before the Assistant Minister for his consideration in deciding whether to revoke the cancellation of the applicant’s visa.

67    The applicant relied on the following passage of Mason J’s reasons in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 45 (with which Gibbs CJ and Dawson J agreed) –

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

68    The applicant submitted that there was no reason to doubt that those comments apply to the exercise of the power to decide whether to revoke the cancellation of a person’s visa under the Migration Act, and that the Assistant Minister’s failure to act on the basis of the assault charge police brief was a serious breach of the implied condition that his decision be made on the basis of the most current material available to him. The applicant accepted that it was the Department that decided not to put the police brief before the Assistant Minister, but submitted that the police brief was within the Assistant Minister’s constructive knowledge in that it was available to his Department, and further submitted that the fact that the error was caused by the Department did not make it any less a failure to comply with the implied condition. The applicant accepted that he was required to establish materiality for this error to be jurisdictional, and in that respect, as with his submissions in relation to procedural fairness, the applicant submitted that it was the source, rather than the content, of the information in the police brief that was significant. While the Minister was presented with some information about the pending assault charge in Dr Davis’s report, more authoritative and reliable information contained in the Victoria Police brief of evidence was available, but not put before him. While the applicant accepted that the police brief did not contain exculpatory evidence, he invited the Court to consider this issue from a normative perspective – that is, should the Assistant Minister have had the police brief before him for his consideration? The applicant submitted that the answer to that question was in the affirmative, and that if the police brief had been before the Assistant Minister, it might have led him to wonder what the applicant’s response was to the pending charges, and to provide a copy of the police brief to the applicant for his comment, which in turn would give rise to a realistic possibility of a different outcome.

The Minister’s submissions

69    The Minister’s submissions may be summarised as follows.

Ground 1 and 3 – procedural fairness

70    The Minister submitted that the applicant was not denied procedural fairness in the process that led to the non-revocation decision. The Minister submitted that the obligation to afford procedural fairness did not require a perfect procedure, and that in the circumstances, enough had been done to discharge the obligation. Consequently, the Minister submitted that the applicant’s submission that outlined three suggested options to avoid procedural unfairness was circular, in that it started from the premise that the procedure was unfair.

71    The Minister submitted that the obligation to afford procedural fairness must be assessed in light of the factual and statutory context in which the decision was made. In respect of the factual context, the Minister submitted that the applicant was put on notice of all of the relevant issues in the revocation review process, including the pending charges, and provided with a copy of all of the material that went before the Assistant Minister for his consideration in deciding whether to revoke the cancellation of the applicant’s visa. Further, the Minister submitted that the applicant was provided with ample time to respond to the Department’s invitations to comment on the pending charges. The Minister emphasised the applicant was given approximately six months between the issue being raised – either when the applicant was provided with a copy of the National Police Certificate and Dr Davis’s report on 30 August 2016, or when he was specifically invited to comment on the pending charges on 19 September 2016 – and it being determined – either when the notional deadline for the applicant to comment expired on 21 February 2017, or when the Assistant Minister made the non-revocation decision on 14 March 2017. The Minister submitted that the statutory context supported the relatively limited content of the obligation to afford procedural fairness in a revocation review process. In support of that submission, the Minister drew attention to the comments of Tracey J in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [40]-[42] about the operation of s 501CA of the Migration Act, which I shall consider below. Further, in respect of the reasonable time for the applicant to comment on the pending charges, the Minister pointed to reg 2.52(2)(b) of the Migration Regulations. The Minister accepted that the regulation did not apply because the 28 day timeframe for the applicant to make representations seeking revocation of the cancellation decision had been repeatedly extended, but submitted that it nonetheless informed the content of the obligation to afford procedural fairness, and in particular, the reasonableness of the opportunity given to the applicant to comment on the pending charges.

Ground 2 – most recent information

72    The Minister denied that the Assistant Minister’s non-revocation decision was affected by jurisdictional error because he did not act upon the most current material available to him. The Minister submitted that the statements of Mason J in Peko-Wallsend, on which the applicant relied, did not apply to the present case for two reasons.

73    First, the pending charges were not a mandatory relevant consideration. The Minister submitted that in Peko-Wallsend, Mason J found that in considering a mandatory relevant consideration, the Minister for Aboriginal Affairs should have regard to “the most recent and accurate information that the Minister has at hand”, while in the present case, the pending charges were not a mandatory relevant consideration in the Assistant Minister’s decision whether to revoke the cancellation of the applicant’s visa. In support of the relevance of this distinction, the Minister drew attention to the Full Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505.

74    Second, the information before the Assistant Minister about the pending assault charge was not incomplete, inaccurate or misleading. The Minster submitted that the information contained in Dr Davis’s report in relation to the assault charge pending against the applicant was comprehensive and more up to date than the information contained in the police brief. Further, the Minister submitted that the police brief was not necessarily more authoritative or reliable, given that the copy obtained by the Department was unsigned and undated, and did not bear any stamp, seal or mark indicating that it had been filed in the Magistrates’ Court of Victoria. The Minister submitted that having regard to the contents of the police brief, it could not be said that the information in Dr Davis’s detailed report was in any way “incomplete, inaccurate or misleading” as contemplated by Mason J in Peko-Wallsend, such that the applicant’s reliance on Peko-Wallsend was misplaced.

Consideration

Ground 1 and 3 – procedural fairness

75    The applicant and the Minister accepted that the Assistant Minister, as the non-revocation decision-maker, owed a duty to afford procedural fairness to the applicant in the revocation review process, and that the common law principles of procedural fairness applied.

76    The principles for assessing the content of the common law obligation to afford procedural fairness were not in dispute in this proceeding. The key principles may be briefly summarised as follows. Procedural fairness is concerned with, and requires, a fair procedure, and not a fair outcome: SZBEL v Minister for Immigration [2006] HCA 63; 228 CLR 152 at [25] (the Court). The statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires, and the question whether a procedure was fair is necessarily tied to the particular facts of the case: SZBEL at [26]. The obligation to afford procedural fairness includes a general requirement to give a person who is the subject of a decision the opportunity to put information and submissions to the decision-maker in support of an outcome that supports his or her interests, including “to rebut or qualify … adverse material from other sources which is put before the decision maker”: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 at 591-2 (the Court), cited with evident approval in SZBEL at [29] and in BRF038 v Republic of Nauru [2017] HCA 44; 91 ALJR 1197 at [59]. An opportunity should be afforded to comment on any adverse information that is “credible, relevant and significant to the decision to be made”: Kioa v West [1985] HCA 81; 159 CLR 550 at 629 (Brennan J). As those passages from Alphaone and Kioa v West suggest, the requirement to provide an opportunity to comment on adverse information is usually limited to adverse information that is before the decision-maker, such that it can be significant to the decision to be made. The Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 considered that general requirement at [83] –

Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry.

77    The general requirement to put adverse information, like the obligation to afford procedural fairness more generally, must be assessed and applied in light of the legal and factual setting of the decision under review.

78    In the present case, the question whether the applicant was afforded procedural fairness must be considered in the setting of the statutory framework governing the revocation review process. The relevant provisions of the Migration Act and the Migration Regulations that make up that framework are referred to at [54] and [56] above. As stated above, the Minister drew attention to the comments of Tracey J in Picard at [40]-[42] about the content of the obligation to afford procedural fairness in that statutory setting. In that case, Tracey J observed that under s 501CA(3) of the Act, the Minister is obliged to give to a person whose visa has been cancelled the particulars of information relevant to the cancellation decision, and not information that might be relied upon in deciding whether to revoke the cancellation decision. Tracey J commented that the focus of that obligation was “somewhat strange” given that the cancellation decision would already have been made because the Minister (or a delegate) was satisfied of two objectively ascertainable facts that do not require regard to any discretionary considerations, being that the person had a substantial criminal record causing him or her to fail the character test, and that he or she was serving a sentence of imprisonment. Tracey J went further by suggesting that the drafter of the legislation may have mistakenly made the obligation to provide relevant information referable to the cancellation decision, rather than the revocation review decision. However, Tracey J also stated at [42] that –

It does not follow that, in all cases, the Minister will accord procedural fairness simply by complying with the requirements of s 501CA(3). Once the invitation to make representations is extended to a visa holder it falls to a visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made…It will not, normally, be necessary for the Minister to afford a further opportunity to the applicant to deal with particular issues. If, however, the Minister becomes aware of information which is personal to the applicant and which might lead the Minister to disbelieve some critical information supplied by the applicant, it may be necessary for the Minister to expose that information to the applicant and give the applicant the opportunity of responding to it before making a decision.

79    I respectfully agree with Tracey J’s comment that it is somewhat strange that the Minister’s obligation under s 501CA(3) is to provide information relevant to the cancellation decision, rather than the revocation review decision. However, the operation of the provision is clear. I also respectfully agree with Tracey J’s statement that it does not follow that procedural fairness will be afforded in a revocation review process simply because the Minister has complied with the requirements of s 501CA(3) and, in particular, the requirement to provide the person whose visa has been cancelled with particulars of information relevant to the cancellation decision. The statutory scheme requires the Minister to notify the person whose visa has been cancelled of that cancellation decision, to provide particulars of information relevant to that cancellation decision, and to invite representations about revocation of that decision. That forms the start of the revocation review process, but not the end. Those requirements do not constitute a complete and exhaustive account of what may be required to ensure a fair and lawful revocation review process. Rather, the legislature may be taken to be aware of common law principles, including the obligation to afford procedural fairness, and to have intended for them to apply to the exercise of the statutory power to revoke the mandatory cancellation of a person’s visa: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [12]-[15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). The statutory scheme does not seek to exclude or qualify the application of those common law principles to the revocation review process. So, as discussed above, the common law rules of procedural fairness apply, including the general requirement to grant the person whose visa has been cancelled the opportunity to ascertain the relevant issues and to comment on any adverse information that is credible, relevant and significant to the decision whether to revoke the cancellation of their visa.

80    On the particular facts of the present case, I consider that the applicant was afforded procedural fairness in the revocation review process. I have reached that conclusion by reference to the totality of the circumstances of the revocation review process, summarised above, and in light of the Assistant Minister having recorded his limited consideration of the further criminal charges pending against the applicant in his statement of reasons for making the non-revocation decision.

81    The applicant was put on notice that the pending charges may be taken into account by the person making the decision whether to revoke the cancellation of his visa, and he was provided with an opportunity to comment on all of the adverse information that was before the decision-maker. As detailed above, by a letter dated 30 August 2016 (see [21] above), the Department provided the applicant with a copy of the National Police Certificate and Dr Davis’s report, which addressed the applicant’s conduct that was the subject of the further pending charges, and advised him that the information contained in those documents, amongst others, “may be taken into account when making the decision whether to revoke the decision to cancel your visa”. Further, by a letter dated 19 September 2016 (see [25] above), the Department brought the potential relevance of the pending charges to the applicant’s attention, setting out each of the pending charges and noting that they had not yet been determined by the courts, and stated that information in relation to those charges was contained in the National Police Certificate and Dr Davis’s report, which had already been provided to the applicant. The subsequent correspondence between the applicant’s representative and the Department, summarised above, made clear that the applicant was on notice of the potential relevance of the pending charges. Further, it is not disputed that no additional material in relation to the pending charges was before the Assistant Minister for his consideration in making the non-revocation decision. The evidence of Ms Muscat, the officer of the Department with carriage of the applicant’s revocation request, made clear that while the Department obtained a copy of the assault charge police brief during the revocation review process, it was not put before the Assistant Minister for his consideration in making the non-revocation decision. The applicant also made clear during this proceeding that he does not allege that the Assistant Minister did not truly make the non-revocation decision himself, in the sense of impermissibly deferring to anyone else in his fact finding or opinion formation in making the non-revocation decision.

82    It is apparent that in undertaking the revocation review process, the Department formed the view that it was only required to put to the applicant for comment the same material that it would put before the Assistant Minister, and it deliberately did not put the assault charge police brief to the applicant or before the Assistant Minister. That the Department formed that view is understandable. The general requirement to put adverse information, as it is framed in the leading cases of Kioa v West, Alphaone and SZSSJ in the passages referred to above, is limited to a requirement to put adverse information that is before the decision-maker, such that it can be significant to the decision to be made. That general requirement provides guidance to administrative decision-makers and persons who assist those decision-makers, such as the Assistant Minister and the officers of his Department in this case.

83    However, that general requirement is not a comprehensive statement of what will be required in all cases, and the question whether a procedure was fair is necessarily tied to the particular facts of the case. The applicant submitted that in the particular circumstances of this case, it was not sufficient that he was invited to comment on the same material that went before the decision-maker. The applicant submitted that he could not make an informed choice, in light of considerations about his privilege against self-incrimination in potential criminal proceedings, about what comment to make, if any, in relation to the pending charges, until he knew more about the material that Victoria Police proposed to use to prosecute him for those charges. That position is understandable and the applicant’s representative conveyed that position to the Department during the revocation review process. However, the applicant’s position did not have the effect of indefinitely extending the obligation to afford procedural fairness. In my view, adopting the language of the High Court in SZSSJ at [82], the revocation review process was “reasonable in the circumstances” and it did not “so constrain the opportunity of the [applicant] to propound his … case for a favourable exercise of the power to amount to a practical injustice.” The applicant was afforded a sufficient opportunity to comment on the pending charges so as to discharge the obligation to afford procedural fairness.

84    The applicant’s submission that outlined three suggested options to avoid procedural unfairness was circular, in that it started from the premise that the procedure was unfair. However, considering those alternative paths that could have been taken does provide a perspective from which to assess the fairness of the procedure that was in fact adopted. In respect of the first suggested option, it is not to the point to suggest that the Assistant Minister could have made the decision whether to revoke the cancellation of the applicant’s visa without having regard to the pending charges. The Assistant Minister did have regard to the pending charges, and that suggestion goes to outcome, in the sense of the content of the decision, rather than procedure. In respect of the second suggested option, the applicant conceded that there was no specific obligation for the Department to notify him that it had obtained a copy of the assault charge police brief, or provide him with a copy of it. Dr Davis’s report, which was provided to the applicant, referred to the pending assault charge and provided a detailed account of the applicant’s alleged conduct, spanning two pages, and his comments including admissions in relation to that alleged conduct, made by the applicant during an interview with Dr Davis. The studied obscurity in the Department’s correspondence, by which the Department avoided suggesting that it had a copy of the police brief, but also avoided denying it, did not assist to achieve the overarching objective to afford the applicant a fair procedure. However, it also did not result in procedural fairness being denied. Finally, in respect of the third suggested option, the applicant suggested that he should have been granted more time to obtain a copy of all of the police briefs before any decision whether to revoke the cancellation of his visa was made. Such an assessment about what amount of time was required to provide a fair procedure is necessarily a matter of fact and degree that involves evaluative judgment. As emphasised by the Minister, the applicant was given approximately six months between the issue of the pending charges being raised with the applicant and the matter being determined. The Department granted the applicant several extensions to the deadline to comment on the pending charges and then, after the deadline for the final extension lapsed, the Assistant Minister proceeded to make the non-revocation decision. The reasonableness of that period of time is informed by the statutory setting, which included the ordinary 28 day timeframe for a person to make representations seeking revocation under reg 2.52(2)(b) of the Migration Regulations. In my view, in all of the circumstances, the applicant was afforded sufficient time to comment on the pending charges, and the revocation review process was a fair procedure.

85    Further, even if I had found that there was a breach of the obligation to afford procedural fairness in the revocation review process in the manner alleged by the applicant, I do not consider that any such breach would have been material. The question for the Assistant Minister under s 501CA(4)(b)(ii) of the Act was whether there was “another reason” to revoke the cancellation of the applicant’s visa, which carried sufficient weight or significance so as to satisfy the Assistant Minister that the cancellation of the applicant’s visa “should be” revoked: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [64] (Colvin J). Assuming that a denial of procedural fairness was established, the applicant would bear the onus of proving as an ordinary question of fact that if procedural fairness had been afforded, that could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]-[46] (Bell, Gageler and Keane JJ). To this end, the applicant submitted that if the revocation review process had been fair, there was a realistic possibility that the Assistant Minister would have revoked the cancellation of his visa. That enquiry requires a hypothetical analysis of what the consequences of a fair procedure would have been, in circumstances where I have found that procedural fairness was afforded. Again, the applicant’s suggested options for avoiding procedural unfairness provide a perspective from which to undertake the analysis. As stated above, the applicant’s first suggested option is not to the point because it goes to outcome, rather than procedure. Under the applicant’s second and third suggested options, even taking the applicant’s case on what a fair procedure required at its highest, I do not consider that the applicant proved that there was a realistic possibility that the Assistant Minister would have revoked the cancellation of his visa. On the assumption that the applicant had a copy of the assault charge police brief during the revocation review process, the applicant has not established what representation he would have made in respect of the pending assault charge. Dr Davis’s report, which was provided to the applicant for comment and which was before the Assistant Minister, referred to the pending assault charge and contained information in relation to the alleged assault that covered and went beyond the relevant information contained in the police brief. In relation to the pending solicitation charges, the police briefs for those charges are not before the Court. However, as with the assault charge, Dr Davis’s report contained a detailed account of the applicant’s alleged conduct, and his comments including admissions in relation to that alleged conduct, given during an interview with Dr Davis. Further, the applicant’s representative did have access to one of the solicitation charge briefs during the revocation review process. Noting that the police briefs for those charges are not before the Court, I am not satisfied in all of the circumstances that having copies of the two additional briefs could have realistically resulted in a different outcome. It must be emphasised that with respect to all of the pending charges, the Assistant Minister’s statement of reasons referred to the fact that those charges were “pending” and that they “have not yet been determined by a court”. The Assistant Minister’s reasons stated that he gave “limited weight” to the pending solicitation charges and that those pending charges arose from the same circumstances as the applicant’s convictions for non-compliance with his supervision order. In relation to the pending assault charge, the Assistant Minister’s reasons only went as far as noting that the alleged behaviour was consistent with some of the applicant’s earlier violence-related conduct. That reasoning was limited to the fact that there were further charges pending against the applicant, and it was informed by Dr Davis’s report that included a detailed account of the alleged conduct. Having regard to the extensive references to the circumstances of the charges in Dr Davis’s report that was before the Assistant Minister, and the limited reliance by the Assistant Minister on the fact of the pending charges, which acknowledged that they had not been determined by a court, I am not persuaded that the applicant has established that there was a realistic possibility of a different outcome if, as he contends, the Minister was required to give him more time to pursue enquiries.

Ground 2 – most recent information

86    The applicant’s second ground of review, by which the applicant claimed that the Assistant Minister’s non-revocation decision was affected by jurisdictional error because he did not act upon the most current material available to him, may be considered relatively succinctly.

87    I accept that the Assistant Minister had constructive knowledge of the assault charge police brief in the sense contemplated by Mason J in Peko-Wallsend because it was held by his Department: cf, Huynh at [80] (Kiefel and Bennett JJ); EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230; 374 ALR 272 at [222] (Logan J, noting that his Honour was in dissent as to the outcome of the appeal). However, for the two reasons advanced by the Minister, I do not accept that the Assistant Minister’s non-revocation decision was affected by the form of error identified by Mason J in Peko-Wallsend.

88    First, it has been held that Mason J’s comments in Peko-Wallsend that administrative decision-makers should act on the most current material available are limited to material to be considered in assessing a mandatory relevant consideration. As advanced by the Minister, that limitation was identified by Kiefel and Bennett JJ in Huynh at [80], where their Honours stated that “[t]he factor being considered, to which the material is relevant, must be essential to the exercise of the discretion before any obligation to examine the most recent and accurate information can arise. That is to say it must partake of the nature of a relevant consideration in the sense we have discussed.” The High Court refused an application for special leave in that case, including on that issue, on the basis that there were insufficient prospects of success in an appeal: Huynh v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 968. In the present case, the assault charge pending against the applicant was not an essential consideration in the Assistant Minister’s decision whether to revoke the cancellation decision, and therefore this form of error is not made out.

89    Second, even if the pending assault charge was an essential consideration so as to require the Court to consider this ground further, it cannot be said that the material before the Assistant Minister was “incomplete, inaccurate or misleading” in the sense contemplated by Mason J in Peko-Wallsend because it did not contain the assault charge police brief. The information contained in Dr Davis’s report in relation to the alleged assault covered and went well beyond the relevant information contained in the police brief. That formulation of Mason J in Peko-Wallsend that the material not be “incomplete, inaccurate or misleading” should not be treated as if it were a statute, which defined the principle in precise and definite terms: Papaconstuntinos v Holmes a Court [2012] HCA 53; 249 CLR 534 (French CJ, Crennan, Kiefel and Bell JJ). As noted by Kiefel and Bennett JJ in Huynh, the same principle has been put in other ways in other decisions of this Court. In Tickner v Bropho [1993] FCA 208; 40 FCR 183 at 199, Black CJ held that there may be an improper exercise of power if there is material known to be readily available which is likely to be of critical importance in the decision, and it is not utilised. In the present case, the fundamental point is that I do not consider that the Assistant Minister was disadvantaged in his decision-making because he did not consider the assault charge police brief, and therefore this ground is not made out.

90    Further, even if I had found that the Assistant Minister erred by not acting on the most current material available to him, I do not consider that the applicant has established that any such error would have been material. As stated above, the applicant accepted that he was required to establish materiality for this error to be jurisdictional. That is, the applicant was required to prove as an ordinary question of fact that if the error was not made, that could realistically have resulted in a different decision: SZMTA at [45]-[46] (Bell, Gageler and Keane JJ). Assuming that this form of error was established, I am not persuaded that if the Minister had considered the assault charge police brief, there was a realistic possibility that he would have revoked the cancellation of the applicant’s visa. As stated above, the information contained in Dr Davis’s report in relation to the alleged assault covered and went well beyond the relevant information contained in the police brief, and I do not consider that the Assistant Minister was disadvantaged in his decision-making because he did not consider the police brief. Further, in considering the pending assault charge, the Assistant Minister in his statement of reasons only went as far as noting that the alleged behaviour was consistent with some of the applicant’s earlier violence-related conduct. There is nothing in the assault charge police brief that would have called that reasoning into question.

Conclusion

91    For the above reasons, the application should be dismissed.

Costs

92    In relation to costs, the starting point is that the Minister has been successful, and ordinarily would be entitled to an order for costs. However, I am of the tentative view that these costs should be reduced on account of the errors in the preparation of the court book, which caused confusion and additional work that the parties’ legal representatives reasonably undertook as a result. That work likely included additional affidavits, submissions, and possibly the adjournment of the hearing on 8 March 2019, in respect of which the costs were reserved.

93    I will receive any written submissions that the parties wish to make as to whether the Minister’s costs should be reduced, and as to the costs of the hearing on 8 March 2019, and I shall then determine the question of costs on the papers.

Associate:    

Dated:    12 June 2020