The AAT's decision
5 The appellant did not dispute that as a permanent resident, or an exempt New Zealand non-citizen of less than 10 years in Australia, who had been convicted of offences for which he was sentenced to imprisonment for a period of not less than one year, he was liable to deportation.
6 It was contended, however, that, serious as the offences were, there was little risk of the appellant re-offending, and that a proper exercise of discretion guided by the principles set forth in the Minister's General Direction - Criminal Deportation - No 9 issued under s 499 of the Act, should have resulted in him being warned rather than being deported. Conversely, the respondent contended that taking account of the seriousness and nature of the offences, the risk of recidivism, community expectation and the absence of significant hardship for the appellant or dependants, the decision under review should be sustained.
7 One of the issues which the Deputy President of the AAT addressed in the balancing process which he undertook was whether the appellant had undergone a basic character transformation since his imprisonment in August 1999. This was clearly a material consideration for the Deputy President to address. One of the factors which the Deputy President took into account in coming to a conclusion on this issue was the appellant's "presentation at the hearing". The appellant presented as a well-groomed, softly spoken individual, who, in the Deputy President's assessment, was quite unlike the person conjured up by the appellant's New Zealand offence record, and by the sentencing remarks made by the District Court judge when sentencing the appellant on 19 August 1999.
8 In par [10] of the Deputy President's reasons he said:
"10. It would also be correct to say, that the mental picture I had of the applicant after reading the transcript of his interview with a Migration officer on 14 January 2000 was of a much rougher, arrogant and unrepentant individual than the one I saw in the witness box. Based upon the applicant's presentation at the hearing and the supportive evidence of his four witnesses (which I shall review shortly), it would be easy to conclude that since his imprisonment in August 1999 he has become a changed man. However I am hesitant in reaching such a conclusion because I think that the applicant's credibility is highly suspect."
9 The Deputy President does not expressly indicate why he thought that the appellant's credibility was highly suspect. It is probably because he gave a "sanitised version of his offending history" which the Deputy President did not accept.
10 The Deputy President then went on to consider the appellant's argument that he is a reformed character, and noted that whilst claims of this kind are commonplace, there are parts of the appellant's behaviour since his conviction in August 1999 which suggest that he has achieved a new level of maturity, and that his claims may be genuine.
11 One of the appellant's witnesses was John Williams, a retired community corrections officer who was the appellant's parole officer following his release from gaol. Mr Williams expressed the view that the appellant suffered from depression but, although he recommended counselling, the appellant did not act upon his advice. The Deputy President said (at [15]):
"This may be a significant factor in making an accurate assessment of the applicant whose presentation at the hearing was certainly consistent with the flat effect which is one of the hallmarks of chronic depression."
12 Mr Williams had no psychological training. There was no evidence before the AAT that the appellant suffered from chronic depression. A submission made to the Minister when seeking his decision on whether or not to deport the appellant referred to a prison report dated 21 October 1999 which stated that the appellant was a prisoner "with no medical or psychiatric problems". There was no material before the AAT as to any "flat effect" which is one of the hallmarks of chronic depression. Perhaps the Deputy President drew upon his own reservoir of knowledge for this information, but the appellant was not alerted to this fact nor was he told that the Deputy President proposed to assess his "presentation at the hearing" in this way.
13 Paragraphs 20, 21, 22 and 24 of the Deputy President's reasons for decision are as follows:
"20. The evidence persuades me that despite the applicant's past history he has developed some insight and maturity largely as a result of his imprisonment and his consequent self-examination. Whether he will commit further violent offences will depend very much upon the nature of the relationship he is in or the aggression or provocation with which he may be confronted. I think he has materially benefited from the anger management course and I think he genuinely wishes to avoid further trouble. I think his compliant demeanour in the witness box was in part the product of chronic depression rather than a basic character transformation. Although the risk of recidivism may not be high, it is by no means non-existent.
21. There are other considerations to be taken into account and they are enunciated in the Minister's General Direction - Criminal Deportation No. 9. Primary considerations include the expectation of the Australian community. There are no children with whom the applicant is in a parental relationship.
22. Community expectations include the expectation that personal safety of citizens will not be put at risk and that offenders who commit abhorrent crimes will be removed from Australia. In assessing the level of risk posed by any individual, it is appropriate to consider the seriousness of his crime, the likelihood of recidivism and the value of his deportation as deterrence or discouragement for potential offenders of a similar kind.
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24. The Minister's Direction No. 9 paragraph 15 says:
"'15. It is the Government's view that the Australian community trusts non-citizen residents to obey Australian laws. Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community. Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported. Weight should be given to this factor in proportion to the decision maker's understanding of the community's attitude to the potential deportee's offences. Decision makers should have due regard to the Government's view in this respect.'"
14 The task on which the AAT was engaged was determining the weight to be given to various factors which were relevant to the decision whether to deport the appellant or not, and deciding how the balance should be struck. One of those factors was whether the appellant had reformed. If he was a "changed man" then the likelihood of recidivism would not be a material consideration and the seriousness of the crimes which the appellant had committed would need to be balanced against his subsequent reformation.
15 The appellant's presentation at the hearing supported the conclusion that he was a changed man. In the AAT's view, an alternative possibility was that his favourable appearance was the product of chronic depression, rather than a basic character transformation. The AAT adopted the alternative possibility without telling the appellant that an issue which he needed to address was whether his favourable appearance at the hearing should be discounted because it was the product of chronic depression.
16 The circumstances here were such as to make applicable what, in Mahon v Air New Zealand Ltd [1984] 1 AC 808, Lord Diplock identified as one of the rules of natural justice. His Lordship said at 821:
"The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result. (Original emphasis.)"
See also Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, at 116 [par 78], (Gaudron and Gummow JJ) and 121 [par 101] (McHugh J). In Aala (supra), at par [101] McHugh J said:
"One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding."
17 The mere fact that Mr Wilson gave it as his opinion that the appellant was suffering from depression, does not lead to the conclusion that the risk of the AAT proceeding as it did was necessarily inherent in the issues which the AAT had to decide in consequence of the introduction of Mr Wilson's evidence, or that the appellant should otherwise have been aware that this was an issue which he needed to address.
18 Counsel for the respondent submitted that even if a breach of the rules of natural justice did occur, it did not affect the outcome, as the AAT's decision was based upon the seriousness of the crimes which the appellant had committed. There are two answers to this submission. First, it is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness "could have made no difference" (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145), that relief will be withheld. The High Court has emphasised that such an outcome will be a rarity: Aala (supra) at [131] per Kirby J. It will be "no easy task to convince a court to adopt it" (Stead (supra) at 145). Second, the AAT was engaged in a balancing exercise as is reflected by par 22 of its reasons for decision. One does not know how the balance would have been struck had the appellant been given the opportunity of addressing the proposition which the AAT ultimately adopted.
19 For these reasons, the decision of the AAT was given in breach of the rules of natural justice.