Ground 1
12 The following observations should be made about the Tribunal's reasoning at [56]:
(1) The Tribunal accepted that Mr Bristowe's early admissions to the police and his plea of guilty counted in his favour by indicating that he was remorseful for his wrongdoing and accepted responsibility for it. The Tribunal considered that the early admissions and the guilty plea counted against the likelihood of repeat offending.
(2) The Tribunal addressed the weight which it should give to the early admissions and stated: "The difficulty with weighing his early admissions too heavily in his favour is that the writing was most probably on the wall given the undercover police operation and the things that were seized on the execution of the search warrant". The following matters should be noted:
(a) This sentence is confined to the early admissions (as opposed to the guilty plea).
(b) The conclusion that "the writing was most probably on the wall" is expressed in terms of the balance of probabilities.
(c) Read literally, the third sentence states as a matter of objective fact that "the writing was most probably on the wall", rather than being a conclusion about Mr Bristowe's state of mind. Nevertheless, the Tribunal should be understood as having concluded that the early admissions made by Mr Bristowe were, more probably than not, in part made because of a perception on his part that the writing was on the wall.
(d) The basis of the conclusion that "the writing was most probably on the wall" was said to be "the undercover police operation" and "the things that were seized on the execution of the search warrant". The Tribunal implicitly inferred that, at the time he made the admissions, Mr Bristowe knew there had been an undercover police operation and knew of the things which had been found on execution of the search warrant.
(3) The Tribunal's ultimate conclusion on the question of the weight to be given to the early admissions and what those admissions indicated in terms of remorse, acceptance of responsibility and the likelihood of repeat offending was as follows: "Nonetheless it is a factor that counts against the likelihood of repeat offending, but not heavily so".
13 The Minister submitted that the Tribunal made no finding that the applicant had knowledge of the "undercover police operation" or the "things that were seized on the execution of the search warrant". Rather, according to the Minister, the Tribunal's finding was that, given that these matters occurred as a matter of objective fact, the "the writing was most probably on the wall". It is true that the Tribunal's reasons do not expressly state that it considered Mr Bristowe knew about those things at the time he made the early admissions. However, reading the Tribunal's reasons in a practical common-sense way, it is clear that the Tribunal took the view that, at the time of the admissions, Mr Bristowe thought the "writing was on the wall", because he knew about the undercover police operation and what had been found on execution of the search warrant.
14 Mr Bristowe's counsel took the Court to the material which was before the Tribunal which could be seen as relevant to the Tribunal's reasoning at [56].
15 The New South Wales Police "Facts Sheet" set out the asserted facts relevant to various alleged offences, including a number of supplies of Methylenedioxy-Methylamphetamine (MDMA). The Facts Sheet explained that the police had "monitored and recorded" a number of supplies of MDMA made by Mr Bristowe on various occasions between 7 June 2018 and 17 July 2018, for which he had received substantial sums of money. The Facts Sheet stated that Mr Bristowe's supplies of MDMA were seized (presumably from the recipients) and later analysed. The Facts Sheet did not suggest that Mr Bristowe knew about the undercover police operation or that he had been told his supplies had been "monitored and recorded" or that the MDMA he had supplied had been seized and later tested. The Facts Sheet includes:
About 8.10am on Thursday the 19th July, 2018 police attended 6 Bobuck Place St Helens Park. Upon arrival, police knocked on the front door. Accused BRISTOWE answered the front door and engaged in a conversation with police. At this time, police complied with the Law Enforcement Powers and Responsibilities Act, 2002 arresting and cautioning the accused BRISTOWE. At this time, the accused BRISTOWE was notified of a search warrant which was issued at Campbelltown Local Court on Wednesday the 18th July, 2018. The occupiers notice was served on him.
A short time later, the accused was conveyed back to Campbelltown Police Station and introduced· to the Custody Manager. The accused participated in an electronic recorded interview number R0542645. During the interview the accused was asked a number of questions in relation to each offence. The accused made full admissions to supplying a purchaser Methylenedioxy-Methylamphetamine (MDMA) in St Helens Park and Burwood on the stated dates.
… In relation to the search warrant, police located $1000.00 in Australian currency in a shoe in the accused wardrobe. Inside another shoe, police located 10 grams of green vegetable matter believed to be cannabis. Police also located $150.00 in Australian currency on a desk in his bedroom. In total, police located $1150.00 in Australian currency which police will allege is from proceeds of crime.
16 Counsel also took the Court to Mr Bristowe's s 501CA representations and the transcripts of the cross-examination of Mr Bristowe in the two AAT proceedings. None of this material suggested that, at the time of making the early admissions, Mr Bristowe was aware: (a) that there had been an undercover police operation; or (b) of what had been found on execution of the search warrant. Nor was it put to Mr Bristowe by the Tribunal or in cross-examination that his early admissions were made because he considered the "writing was on the wall", whether as a result of his knowledge of the police operation or what had been found at his residence on execution of the search warrant, or otherwise.
17 The Tribunal's finding of fact that the early admissions made by Mr Bristowe were, more probably than not, in part made because of a perception on the part of Mr Bristowe that the "writing was on the wall" is a finding of fact made through a process of inference, there being no direct evidence establishing his state of mind in this respect.
18 In Carr v Baker (1936) 36 SR (NSW) 301 at 306, Jordan CJ observed that "[t]he existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists". An inference is a finding of fact which the drawer of the inference bases on the existence of some other fact or facts - see: G v H [1994] HCA 48; 181 CLR 387 at 390 (Brennan and McHugh JJ). The happening of an event or the existence of a state of affairs can be found to exist, on the balance of probabilities, on the basis of evidence of other facts the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs existed: Henderson v State of Queensland [2014] HCA 52; 255 CLR 1 at [89] (Gageler J).
19 An inference cannot be drawn unless there are objective facts from which to draw the inference: Caswell v Powell Duffryn Associated Collieries, Limited [1940] AC 152 at 169-170; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [87] (Spigelman CJ). Finding a fact through a process of inference can involve combining facts like strands in a cable or links in a chain: Seltsam at [91]. An inference can be drawn on the basis of circumstantial evidence: Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; 296 ALR 307 at [88] per Jagot J; Seltsam at [90]. The inference must be more than mere conjecture or speculation; the decision-maker must reach a positive satisfaction, on the requisite standard (here, the balance of probabilities), that the inferred fact exists. Both Jordan CJ in Carr, and Spigelman CJ in in Seltsam at [84], referred to Jones v Great Western Railway Co (1930) 47 TLR 39 at 45, in which Lord Macmillan stated:
The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof.
20 In other words, the facts proved must give rise to a reasonable and definite inference, and not merely to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture: Jones v Dunkel [1959] HCA 9; 101 CLR 298 at 304-305 (Dixon CJ); Trustees of the Property of Cummins (A Bankrupt) v Cummins [2006] HCA 6; 227 CLR 278 at [34].
21 The material before the Tribunal directly established the following facts:
Mr Bristowe had committed a number of drug-related offences.
The police attended Mr Bristowe's residence, had a conversation with him, cautioned him and arrested him.
The police notified Mr Bristowe that they had obtained from the Campbelltown Local Court a search warrant in respect of his residence.
Shortly after his arrest, the police took Mr Bristowe to the Campbelltown Police Station where he participated in a police interview.
Mr Bristowe was asked questions in relation to the offences during the interview and he "made full admissions to supplying [MDMA] in St Helens Park and Burwood on the stated dates".
22 The Minister referred to similar facts as just set out above and submitted that it was rational to infer from these facts that, as a matter of objective fact, the "writing was on the wall". The difficulty with this submission is that:
(a) properly understood, the Tribunal's inference was not that objectively the writing was on the wall, but that Mr Bristowe (subjectively) thought the writing was on the wall and that was a reason for his early admissions - see: [12(2)(c)] and [13] above; and
(b) the Tribunal did not infer on the basis of the facts set out at [21] above that Mr Bristowe thought the writing was on the wall; rather, the Tribunal inferred that Mr Bristowe thought the writing was on the wall at the time he made the admissions because the Tribunal inferred that, at that time, Mr Bristowe knew about:
(i) the undercover police operation; and
(ii) what had been found on execution of the warrant.
23 As to the undercover police operation, the material before the Tribunal did not suggest that Mr Bristowe knew of any undercover police operation at the time of making the early admissions. The Minister did not refer to any material which would suggest that inference. After his arrest, Mr Bristowe was questioned about the various offences. The offences comprised a substantial number of sales of MDMA in substantial quantities for substantial sums of money. It may have been obvious to Mr Bristowe from the questioning at the time the admissions were made that the police knew a substantial amount about his activities, but the inference that he knew that there had been an undercover police operation, in which he was "recorded" supplying drugs and in which the drugs he supplied were later seized and analysed, was not an inference which was obvious and natural on the material before the Tribunal. An inference that Mr Bristowe thought the writing was on the wall is more obvious and natural if Mr Bristowe knew the police had "monitored and recorded" his drug supplies and also seized and analysed the drugs which he had supplied. The Tribunal did not expressly state that it inferred that Mr Bristowe knew there had been an undercover police operation, or the basis on which it drew that inference. The Minister did not seek to support the availability of such an inference. It may be that the Tribunal simply assumed that Mr Bristowe knew about the undercover police operation without considering whether that was an inference which was in fact available from the material.
24 As to the things which had been found on execution of the search warrant, the direct facts did not establish that Mr Bristowe knew what had been found on the search at the time of making the admissions. That conclusion could only be reached through a process of inference. It is not known when the search commenced or ended. It is not apparent from the material that Mr Bristowe was told during the police interview about what had been found during the search. The search may not have commenced or been completed at the time the admissions were made by Mr Bristowe. Further, what was found was not significant in terms of implicating Mr Bristowe in the relevant drug supply offences to which he admitted. MDMA was not located during the search of Mr Bristowe's property. The search revealed $1000 in one shoe (assumed to be proceeds of crime), a further $150 and 10 grams of a substance was found in another shoe (assumed to be cannabis). It is difficult to see that the finding of cash and cannabis was something which would make Mr Bristowe think the "writing was on the wall" in respect of the offences to which Mr Bristowe admitted, which included supplies of substantial quantities of MDMA. It may be that the Tribunal simply assumed that Mr Bristowe knew what was found at the time he made the admissions without considering whether that was an inference which was in fact available from the material. Further, the Tribunal's reliance on what was found during the search in inferring that Mr Bristowe must have thought the writing was on the wall when he made his admissions suggests a misconception as to what was found during the search.
25 The inference which the Tribunal drew - that Mr Bristowe thought the writing was on the wall at the time of making the early admissions - was not an obvious or natural inference to draw from the two matters the Tribunal referred to as giving rise to the inference. It is no answer to say that a different decision-maker could have reached an equivalent finding of fact through a different process of inference or reasoning. Judicial review is concerned with the question whether the decision-maker stays within the limits of the decision-making authority conferred by the statute: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [29]. If a decision-maker is shown to have exceeded the limits of the decision-making authority, it is no answer to a conclusion of jurisdictional error to say that a different decision-maker could have reached the same conclusion in a lawful way. In the circumstances, procedural fairness required the Tribunal to provide Mr Bristowe an opportunity to respond before the finding was made.
26 It may be accepted that procedural fairness does not require a decision-maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision: SZBEL at [48], citing F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [18]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [9]; Viane at [32].
27 Procedural fairness does, however, require a person to be alerted to a proposed finding of fact, reached by a process of inference, when the finding is not an obvious or natural evaluation of the material and relates to a matter on which the decision is likely to turn. The question whether Mr Bristowe was likely to reoffend was of central importance to the decision. The inference drawn by the Tribunal was critical in attaching less weight to what was otherwise regarded as a matter in Mr Bristowe's favour.
28 The Minister properly accepted that, if there was a denial of procedural fairness in the way contended, then it was material to the outcome in the sense that there was a possibility of a different outcome. If it had been put to Mr Bristowe that he thought "the writing was on the wall" because he knew about the undercover police operation and what had been found on execution of the search warrant, and that was in part the reason he made the admissions, then Mr Bristowe may have given evidence to the effect that he did not know of either matter at the time he made the admissions. If the Tribunal had concluded that Mr Bristowe's early admissions were motivated only by remorse, and not partly for the reason that he thought the writing was on the wall, then more weight may have been given to Mr Bristowe's remorse and he may have been perceived to be less likely to reoffend than the Tribunal otherwise concluded. When it came to weighing the various factors for and against revocation of the visa cancellation, the merits might have been assessed as favouring revocation.
29 It follows that Ground 1 is made out.