Federal Court of Australia

Rewha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 748

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to amend the originating application so as to add as a ground for review, “In concluding (at Reasons, paragraph 60) in respect of a risk assessment made in respect of the applicant by the West Australian Department of Justice that “[s]uch assessments are conducted for the purposes quite different to the considerations of the Tribunal in the present matter and involve specific to the purpose assessment tools, availability of programs, length of the sentence etc.”, the second respondent deprived the applicant procedural fairness or further or alternatively reached that conclusion without any foundational evidence in the material before the second respondent.

2.    The need for the filing and service of an amended originating application specifying this ground be dispensed with.

3.    The decision made by the second respondent on 13 January 2023 be set aside and, in lieu thereof, it be ordered that:

(a)    a writ of certiorari be issued quashing the decision; and

(b)    a writ of mandamus be issued directing the second respondent to determine the applicant’s application to review the first respondent’s decision according to law.

4.    There be no order as to costs in respect of the proceedings.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Mr Phillip Rewha is a citizen of New Zealand. He came to Australia, at first, at about age 20, in 1991. However, his residence in Australia commenced some four years later, although he has entered and returned to Australia a number of times thereafter. In 2006 and also 2010, he was convicted of drink-driving offences. The offending conduct which provided the genesis for the present proceedings did not occur until 2021. That was a sequel to an overdose consequent to injecting heroin.

2    In March 2021, Mr Rewha’s home was searched by police. The occasion for that search was that police were looking for Mr Rewha’s nephew. However, in the course of that search, the police located a room which had been converted to cultivate cannabis. The police also located methylamphetamine in multiple clip seal bags, drug paraphernalia, cash, a flick-knife, a shotgun with a ground-off serial number and a rifle that had been stolen in a burglary, together with ammunition. They also located sandwich bags containing cannabis and other drugs and drug-related paraphernalia, more particularly described in paragraph 10 of reasons which, in circumstances I shall shortly describe, came to be delivered by the Administrative Appeals Tribunal (Tribunal).

3    In September 2021, Mr Rewha was convicted, on a plea of guilty, of offences of having access to weapons and illegal drugs, possession of stolen or unlawfully obtained property, and possession of a prohibited drug with intent to supply, namely methylamphetamine. The latter conviction attracted a sentence of two years imprisonment.

4    There were shorter terms of imprisonment to be served concurrently imposed in respect of the other offences. The following month, in October 2021, Mr Rewha was convicted of further drug-related offences. For most of these, he was fined, although two attracted short-term periods of imprisonment.

5    A sequel to these sentences of imprisonment is that Mr Rewha’s then visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act). It has never been controversial that the occasion for satisfaction and the related requirement for cancellation existed as a result of, in particular, the two-year term of imprisonment.

6    As the Act required, Mr Rewha was given an opportunity to make a representation in respect of the revocation of the cancellation of his visa. He did this promptly, on 3 November 2021. It was not until 19 October 2022 that a decision was made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) in respect of this representation. On that day, a delegate of the Minister decided, pursuant to s 501CA(4) of the Act, not to revoke the cancellation of his visa.

7    Mr Rewha was notified of this decision on 24 October 2022. He acted promptly, very promptly indeed, to seek the review of this decision by the Tribunal. He applied for such review on 25 October 2022. On 13 January 2023, the Tribunal (constituted by Brigadier A.G. Warner AM LVO (Retd), member), for reasons published in writing that day, decided to affirm the delegate’s decision not to revoke the cancellation of Mr Rewha’s visa. Mr Rewha then sought the judicial review by this Court of the Tribunal’s decision. As is appropriate and usual, the Tribunal has filed a submitting appearance save in respect of any issue as to costs. The only active party respondent is the Minister.

8    The grounds of the application as expressed in the originating application were as follows, and I will incorporate by reference that ground without reading it out. In the course of submissions concerning that ground, by Mr Glenister of counsel for Mr Rewha, attention came particularly to focus upon [60] of the Tribunal’s reasons. It will be necessary to set out that paragraph shortly. Suffice it to say the way in which the case was originally conceived was that the Tribunal was alleged to have committed a like jurisdictional error or errors to that found in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 (Dranichnikov). That was on the basis that the Tribunal had allegedly misunderstood an integer of the representation which Mr Rewha had made as to why cancellation of his visa should be revoked.

9    As submissions progressed more attention was given to [60], as read in a context to which I shall turn also shortly. It became apparent that the point being agitated, whilst a procedural fairness one, which can be one basis of a jurisdictional error of the kind found in Dranichnikov, was not a failure to address an integer but rather, if it be any error at all, a failure to provide an opportunity to be heard in respect of a basis upon which a Department of Justice risk assessment was discounted, as said to be evident in [60]. In turn, as submissions further progressed, it became apparent that another alleged error was an absence of any evidentiary foundation in the material before the Tribunal for the basis for discounting.

10    This, in turn, generated an application for amendment of the grounds of the application so as to allege that the Tribunal had either denied the applicant procedural fairness by failing to afford an opportunity to be heard in respect of why the Department of Justice assessment should be discounted because it was an assessment which “… involves specific-to-purpose assessment tools, availability of programs, length of sentence, etcetera”, or because the Tribunal lacked any evidence in the material before it that the assessment involved such matters.

11    The only notice which the Minister had of that particular application was when it emerged in the course of oral submissions, on the morning of the hearing. In those circumstances, it seemed to me that procedural fairness demanded that the case be stood down until the afternoon at least so that the Minister might have an opportunity to make submissions concerning the ground as sought to be amended. As it transpired, when the Court resumed for the afternoon sittings, the Minister addressed the proposed amended ground directly.

12    As proposed, the ground is a narrow one, which does not mean it is an unimportant one.

13    With that introduction, it is necessary to provide greater detail as to the context in which the ground is said to be meritorious by counsel for Mr Rewha.

14    A convenient starting point for that is a document found in the material before the Tribunal, which is a West Australian Government Department of Justice classification review generated in Acacia Prison in respect of Mr Rewha in March 2022. At para 1.31 of that classification review, the following statement appears:

1.31    Program performance

No assessed program requirement/need

Comments:

A Risk of Reoffending – Prison Version (RoR-PV) assessment was administered by a Acacia Treatment Assessor. Mr Rewha is not recommended for criminogenic programs at this time due to low risk of reoffending.

Addictions Affending: AOD Further Assessment – Not Currently Offered.

15    The statements made in para 1.31 of the classification review have some apparent association with a later part of the document headed Treatment and EVT Requirements. Under that heading is a table in the following terms:

16    The author of the assessment referred to in para 1.31 was not called by either party to the review conducted by the Tribunal. Nor was there any report of the assessment referred to in evidence; nor, it must be said, was there any explanation in the material before the Tribunal as to what was a risk of reoffending – prison version assessment, or what tools if any were entailed in the making of such an assessment. Instead, there was the stark statement:

Mr Rewha is not recommended for criminogenic programs at this time due to low risk of reoffending.

17    The classification review also recorded that the earliest date for parole eligibility was 30 July 2022. There is no doubt, having regard to the statement of facts, issues and contentions filed on Mr Rewha’s behalf in accordance with the Tribunal’s practice, and to the oral submissions made on his behalf at the hearing, that the risk assessment evidenced in the classification review was a central feature in the submission to the Tribunal as to why it was it should be concluded that there was another reason in terms of s 501CA(4) to revoke the cancellation of his visa.

18    Relevant, but necessarily having regard to the breadth of what might be “another reason” in terms of s 501CA(4), considerations which were relevant to the review of the Minister’s delegate’s decision were as specified by the Minister in a direction made pursuant to s 499 of the Act. One of these which was addressed was by the Tribunal was:

… the likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of reoffending.

19    The Tribunal addressed this particular consideration under that heading between [55] and [66] of its reasons. It is necessary to set out the whole of that part of the Tribunal’s reasons. Indeed, it is in turn necessary to read that part of the Tribunal’s reasons in the context of the reasons as a whole, but the passage between [55] and [66] is a critical one. One thing one must not do is read [60], which appears within this passage in isolation. Reading [60] in context, it becomes apparent that the Tribunal has closely engaged indeed with the subject consideration of the risk of reoffending. Further, in so doing, the Tribunal has in my view engaged with the case as made for Mr Rewha. There is a deliberate reference by the Tribunal to counselling with Cyrenian House, one feature of the submission made on his behalf, as well as the “assessment by the Department of Justice” that he was “a low risk of reoffending” (see paragraph 56).

20    As is plain on its face, what the Tribunal said in [60] was said with reference to that Department of Justice risk assessment, the document which is the classification review to which I have referred. What was put in terms of the proposed amended ground was that the sentence:

Such risk assessments are conducted for purposes quite different to the considerations of the tribunal in the present matter and involve specific-to-purpose assessment tools, availability of programs, length of sentence, etcetera.

21    Contained within it are the two revised alleged jurisdictional errors. Before turning to the merits of that contention, some general statements of principle are necessarily recorded.

22    It has been said more than once by the High Court that the reasons of an administrator must not be read narrowly and with an eye for error. In the High Court, the root authority for such a proposition is Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271 – 272, 278 and 282, with reiteration to be found in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, in BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, and yet more recently in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497, where at [38] it was stated:

The Court is not “astute to discern error” in the reasons of an administrative decision-maker.

23    The onus of proving such error lies upon Mr Rewha. As to procedural fairness, a discussion of principle which is frequently cited with approval is to be found in a judgment of the Full Court, Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, at 590 – 592. It is, as the Full Court stated in that case, at 590:

… fundamental principle that where rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

24    Where a potentially adverse issue is obvious, there is no need to give notice in advance. Obviousness in this context is determined objectively (see Minister for Home Affairs v Smith [2019] FCAFC 137, at [26]). It is also clear that an administrative decision-maker is not obliged to expose a subjective reasoning process, only to give notice in advance of a potentially adverse issue where that is not obvious.

25    The Tribunal was undoubtedly obliged to afford Mr Rewha procedural fairness. It was not a specialist Tribunal in relation to the conduct of this particular review, nor apparently was it constituted by a person with any specialist knowledge other than that derived from what is apparently a career of distinction in the profession of arms.

26    On the face of the classification review, the Department of Justice document, it does appear that there was some association between the assessment recorded and determination of whether particular program participation on Mr Rewha’s part was required. But that is not all that one finds by way of commentary in relation to the assessment in that second sentence in [60].

27    The Tribunal’s task was not an easy one in terms of risk assessment. It had an applicant in Mr Rewha with a particular offending background but also a statement, as a sequel to conviction in respect of the most serious of those offences and that offending background, which contained a bald statement that he was assessed as low risk.

28    The Tribunal was not bound by the rules of evidence, so it could act upon such a statement, but it was not obliged to do that. If, however, the Tribunal wished to discount the worth of an apparently supportive statement as to risk, the Tribunal was obliged to draw to Mr Rewha’s attention or that of his representative that which was not obvious as to why it might be discounted. There was nothing obvious at all that one might discount the worth of the assessment on the basis that it was obtained by the use of particular assessment tools. Indeed, there was nothing at all in the material that it was so derived. Seemingly, that came from the experience of the Tribunal member from other hearings. I say “seemingly” because, with the greatest respect to the Tribunal, I have not in any way assumed that the Tribunal member simply plucked that particular critique from the air.

29    However that may be, the Tribunal has acted upon a particular view of that assessment without any foundational material for that view. Yet further, that particular view ought in my view to have been put to Mr Glenister, who then as now appears for Mr Rewha, prior to the reaching of any conclusion on the review by the Tribunal.

30    The principles of procedural fairness focus upon the procedure adopted by the administrative decision-maker (see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, at [16]).

31    Had notice been given of this issue, it may have been possible to introduce evidence as to the foundation for the review, perhaps by calling its author. Indeed, to give any notice at all would necessarily have required some foundation on the Tribunal’s part for a basis upon which one might discount the baldly stated view in the report. That notice necessarily would have to have been given both to Mr Rewha as well as to the Minister. The Tribunal was not obliged on the face of the risk assessment to conclude that there was another reason, but it was obliged to observe procedural fairness, and the affording of that opportunity may have made a difference.

32    It was not put that if an error of the kind in the proposed amended grounds was established, that it was not material, and in any event it patently was material. There were reasons – and the passage quoted highlights them – why one might have reservations and reach the conclusion reached, but the Tribunal was not obliged to reach that conclusion. What it was obliged to do was to afford Mr Rewha procedural fairness if it proposed to discount the worth of the classification review assessment on the bases set out in the second sentence of [60].

33    In NAEH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 927, at [13], Branson J stated:

13    An administrative decision‑maker is under no obligation to disregard his or her relevant personal experiences. Indeed, relevant personal experience or expertise may explain an individual’s appointment to an administrative body such as the Tribunal. However, the Tribunal is under a duty to conduct a fair hearing. Where the Tribunal contemplates calling in aid the presiding member’s own observations in a way which could be prejudicial to the interests of an applicant, the applicant is entitled to be given an opportunity of commenting on those observations in the context of the applicant’s claims (Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 123).

34    In my view, this is a case of the kind to which Branson J referred in the second sentence of the paragraph quoted. The reasons establish that the Tribunal has called in aid particular knowledge about an assessment about the classification review assessment which could be prejudicial to the interests of Mr Rewha. This is not a case merely of a subsequent subjective reasoning process in relation to which, in the ordinary course, there is no obligation to afford an opportunity to be heard or be heard again. Instead, the exposed reasoning process involves particular factual propositions which ought to have been put in advance before reaching a final view.

35    The Court is not concerned with the merits in any way of the review application, only with whether the review was conducted without jurisdictional error. The point raised by proposed amendment is one which the interests of justice require be the subject of leave to amend. As so amended, the jurisdictional errors pleaded by amendment have been made out, while those set out in the application in its original form have not.

36    The Tribunal did engage with the claim as made. It did not, in my view, conflate in the way alleged in [60] of the Tribunal’s reasons. The procedural fairness error is a different one, one of the kind pleaded in amendment, and there is the separate error that the Tribunal has acted adversely to the applicant without any evidence whatsoever before it to support the discounting of that review in the way the Tribunal chose to.

37    Of course, in a perfect world, the Tribunal would have had the benefit of the author of that assessment being called. The Tribunal may even, had that occurred, have put that proposition of its own motion to the author of the report for comment, but none of that occurred. That is not to be critical either of Mr Glenister, who appeared before the Tribunal, or, for that matter, of the Minister. There is many a case in the Tribunal where it is necessary, particularly for applicants, to cut their cloth by reference to available resources and materials. Evidently enough, the readily available material was the statement in the classification review.

38    The end result, then, is a decision affected by jurisdictional error. It necessarily follows that the Tribunal’s decision must be the subject of a writ of certiorari calling it up into this Court and that the decision must be quashed accordingly.

39    A sequel to that is that a writ of mandamus be issued directing the Tribunal, requiring that the review be heard and determined according to law.

40    The point having been raised but late in the proceedings, and the question as to what a costs sequel might be having been raised in the context of amendment if that be permitted, Mr Glenister put – with respect, quite fairly – that there ought be no order as to costs in respect of the review, even were it to succeed on the grounds as amended. I share that view.

41    The orders, then, will be solely in respect of the granting of leave to amend, the issuing of the writ of certiorari and the consequential issuing of a writ of mandamus.

Associate:    

Dated:    5 July 2023