The Appellant's first submission: whether revocation decision made in breach of the rules of procedural fairness
62 After the Appellant had made his application to revoke the cancellation decision a different Minister invited him to comment on further information the Department of Home Affairs ('the Department') had now received. The Minister thought that this new information might suggest that the Appellant failed the character test because he was not of good character. Section 501(6)(c) provides that a person does not pass the character test if:
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
…
63 It will be seen that this permitted an inquiry into both general and criminal conduct both past and present. The distinction is important for the Appellant's submission. The Minister's letter now put to the Appellant that the qualified security assessment issued by ASIO assessed the Appellant as 'a people smuggling facilitator for a venture that arrived in Reunion Island on 13 April 2019 with 120 Sri Lankan nationals on board'. The Minister told the Appellant that she 'may have regard to this in relation to your past general conduct'. The Appellant submits that the reference to past general conduct was apt to lead him to believe that he did not have to make submissions to the Minister about the significance of the people smuggling venture insofar as it related to his past criminal conduct. Consequently, he had not made submissions to the Minister about the significance of people smuggling from a criminal perspective.
64 The Minister notes correctly that in provisions such as s 501(6)(c) which draw a distinction between general and criminal conduct it has been accepted that this does not result in a dichotomy and that conduct which might be criminal in nature may be considered under the rubric of general conduct: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195-196 ('Baker'). We do not doubt, therefore, that the Minister was within her authority to consider the Appellant's people smuggling activities as an aspect of his general conduct. That is not, however, the present question. Rather, what falls to be decided is whether the Minister's letter (with its reference to general conduct) would reasonably be understood by its recipient as suggesting that she was not going to consider the Appellant's conduct from a criminal perspective.
65 By its omission of any reference to his criminal conduct the language of the letter was, in our view, apt to suggest to the Appellant that (a) the Minister saw s 501(6)(c) as creating a dichotomy between general and criminal conduct; and (b) that the Minister was not planning to consider the criminality of his people smuggling activities. We have considered whether the Appellant, in understanding the contents of the Minister's letter, should be regarded as being aware of this Court's decision in Baker so that he should have understood from the terms of the letter that even though it referred to 'general conduct' this meant that the Minister would be entitled to consider the criminality of the conduct.
66 We do not think that this would be a reasonable way to interpret the letter. Whilst the powers of the Minister under s 501(6)(c) would have permitted her to consider the criminality of his conduct as an aspect of his general conduct, the terms of her letter suggested otherwise. The Appellant was, in our view, entitled to act accordingly.
67 Consequently, we accept that the Minister's letter should be construed as suggesting that the Minister was not proposing to consider the criminality of the Appellant's people smuggling activities.
68 The next question is whether the Minister thereafter breached the rules of procedural fairness by considering the criminality of the Appellant's people smuggling activities when, as we would hold, she had told him she would not.
69 The Minister's consideration of the question of good character was summarised by the Minister at [35] of her reasons for non-revocation as being her assessment of his 'general conduct'. There were three elements to this and the Minister was explicit that he had not been convicted of any offences:
I have considered [the Appellant's] general conduct, in particular his involvement in people smuggling, dishonesty when interviewed by ASIO, and his period in the community where although he did not receive any criminal convictions he was involved in planning people smuggling ventures. I find that this conduct is not according to moral principle.
70 However, other parts of the Minister's reasons are capable of suggesting that she also took the Appellant's involvement in people smuggling into account as an aspect of his criminal conduct. In the section dealing with people smuggling the Minister made these observations at [12], [15] and [19]:
Involvement in people smuggling
12. Involvement in people smuggling is a criminal offence in Australia carrying a significant maximum term of imprisonment of 20 years and mandatory minimum sentences applying to certain people smuggling offences. People smuggling takes advantage of and exploits those seeking protection by smuggling them across borders and putting their lives at risk for a monetary purpose. I consider that where a person has been involved in people smuggling activities, taking advantage of vulnerable asylum seekers, they have shown contempt and disregard for the law and a low standard of moral principle.
…
15. I consider that s501(6)(c) of the Act requires consideration of a person's past and present criminal conduct to determine whether a person is of good character. I consider [the Appellant's] involvement in people smuggling is relevant to [the Appellant's] character based on his past conduct. I consider that any involvement in people smuggling is relevant to the consideration of whether a person is of good character for the purpose of s501(6)(c) of the Act.
…
19. I consider [the Appellant's] past involvement in people smuggling and motivations is indicative of a lack of enduring moral conduct.
71 The trial judge noted the Minister's submission that the language of these parts of the reasons was a 'little loose' in referring to the people smuggling activities as both criminal conduct and general conduct. We would agree with that description. The Minister invites this Court to conclude that this looseness did not involve a breach of procedural fairness for a number of reasons.
72 First, he reminds the Court of the well-known principle that the reasons of an administrative decision maker are not to be read with an eye keenly attuned to the detection of error: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 at [38] ('M1/2021'). The question here is whether the Minister, as a matter of fact, did consider the criminal significance of people smuggling. In our view, she did. Paragraphs [12] and [15] place some significance on the fact that people smuggling is a crime and we do not think it possible to disaggregate her conclusion at [19] that the Appellant had a lack of enduring moral conduct because of his involvement in people smuggling from her earlier statements to the effect that people smuggling was a serious crime. We do not see how the conclusion at [19] could be reached unless the Minister was of the view that the Appellant was a person who had committed the crime of being involved in people smuggling.
73 Whilst accepting the injunction in M1/2021 this does not appear to us to have been a momentary lapse on the Minister's part or an infelicity of expression or a drafting ambiguity. Both paragraphs [12] and [15] place significance on the criminal nature of the conduct.
74 Secondly, the Minister submits that she was well-aware that the Appellant had not been convicted of people smuggling as the passage at [35] of her reasons shows. No doubt, this is true but this does not detract from the fact that [12] and [15] used the criminal nature of people smuggling as part of the path of reasoning to the conclusion at [19] that the Appellant's past involvement with people smuggling and his motivations in respect thereof was 'indicative of a lack of enduring moral conduct'. Put another way, it is possible for a person to take into account that conduct was criminal whilst acknowledging that the conduct has not resulted in a conviction. Paragraph [35] appears to us to be an example of this duality.
75 Thirdly, the Minister submitted that the qualified security assessment had put the Appellant on notice that ASIO had assessed him as a facilitator of people smuggling. The Appellant was provided with the statement of grounds that ASIO had prepared for the qualified security assessment. We accept that it shows that ASIO thought that the Appellant had been involved in organising the voyage from Indonesia to Reunion. The Minister drew attention to the fact that in his submissions to the Minister the Appellant's solicitor had mentioned people smuggling in the context of the Criminal Code Act 1995 (Cth) ('Criminal Code'). As we understood the Minister's submission, these two facts, when considered together, showed that the Appellant had been on notice of the criminal nature of people smuggling and had, in fact, made submissions about the Criminal Code.
76 We do not accept this submission. The qualified security assessment does not contain any assessment of whether the Appellant had breached Australian criminal law. To the extent that the Minister's submission is to be understood as suggesting that the Appellant had committed an offence against Australian law, we do not accept it.
77 Whilst it is true that the Appellant's submission to the Minister did refer to the Criminal Code it is important to attend to the context in which this occurred. It appeared in a part of the submission headed 'Expectations of the Australian community'. The submission developed an argument that the Australian community would consider as important matters procedural values such as the right to a fair trial and due process so that it would expect that any action in relation to the Appellant's people smuggling activities would take place under the auspices of the criminal law and, implicitly, not under the guise of administrative action. The submission was in these terms:
D. Expectations of the Australian community
…
Further the expectations that visa-holders should not engage in certain conduct, should be balanced with other expectations of the Australian community. For example, the Australian community deeply cherishes and values its institutions and the rights of individuals, even non-citizens, to a fair trial and due process to avoid arbitrary and prolonged detention. In particular, in cases where there is likely to be prolonged detention, the Australian community would expect that such powers only be exercised as a last resort, and in extreme circumstances.
In a case where it is accepted that our client has no intention to engage in people smuggling in future, and there is no risk of his doing so, the Australian community would expect that any action directed to visiting a consequence upon our client for any past involvement in people smuggling would be in accordance with the comprehensive provisions of Part 73 of the Criminal Code (Cth). That Part reflects Australian community values by not proscribing all people smuggling operations, but rather proscribing certain operations with a defined territorial connection to Australia.
78 One can certainly infer from this that the Appellant was aware through his advisors of Division 73 of the Criminal Code (which deals with people smuggling offences) and the necessity for a territorial link as a precondition to its application. However, we do not read the submission as advancing any argument that the Appellant had not committed a crime or that Division 73 did not apply. The submission was about what the Australian community expected and the point was that the community would expect criminal liability to be determined by curial process rather than administrative side wind.
79 In circumstances where the Minister had indicated in her letter that she was only looking at general conduct, the solicitors for the Appellant had no reason to advance such an argument and we do not read this passage as doing so. We therefore respectfully differ from the learned primary judge who accepted this submission by the Minister. At PJ [72(b)] his Honour concluded that the above materials had put the Appellant on notice that people smuggling was a crime under Australian law. That was not, however, the question. The question was whether he had been put on notice that the Minister was going to consider his people smuggling activities as a crime. We do not think that he was and we do not read the Appellant's submission to the Minister as developing a contention that it was not a crime.
80 In that circumstance, we accept that there was a breach of the rules of procedural fairness: Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; 141 FCR 552 at [76]-[77]. It then becomes necessary to consider whether the breach was material so that there was a jurisdictional error. The Minister submitted briefly at [30] of his written submissions that since the Minister was aware that the Appellant had not been charged or convicted with a criminal offence it would have been immaterial for the Appellant to demonstrate that his conduct fell outside the provisions of Division 73 of the Criminal Code. This submission reflected a similar conclusion by the trial judge at PJ [72(a)].
81 We do not agree with this submission. However, it does raise the issue of materiality more generally. It is necessary for the Appellant to establish that the breach of procedural fairness which occurred was material to the decision. So much is established by the High Court's decision in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 ('MZAPC'). To ascertain whether the breach was material it is necessary to ask whether there was a realistic possibility that a different decision could have been made. An applicant for judicial review bears the onus of proving the historical facts from which this conjecture is to be drawn. As to both propositions, see MZAPC at [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
82 Pausing there, this would appear to require that the Appellant prove historical facts from which it may be inferred that there was a realistic possibility that the second Minister could have decided to revoke the cancellation decision. It would appear to be implicit in this approach that the historical facts encompass facts extending beyond the decision record. Were it otherwise, the reference to historical facts would be unnecessary given that the record before the decision maker is almost always in evidence. However, we do not read the reference as excluding the record before the decision maker for it, too, is an historical fact.
83 The question is now complicated by the High Court's decision in Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737 ('Nathanson'). Three of the four justices in the MZAPC majority, Kiefel CJ, Keane and Gleeson JJ, have restated the effect of that test in procedural fairness cases in terms which appear, in practical terms, to change it. Whilst it remains true that the question is whether a reasonable conjecture is open the inference may be drawn not only from the historical facts which have been proved but now also from an assumption. The assumption is that the affected party would have taken advantage of a fair opportunity to be heard and the further assumption that 'by doing so, the party could achieve a favourable outcome' (Nathanson at [33] per Kiefel CJ, Keane and Gleeson JJ). This was said to be an 'undemanding' standard. Thus 'the standard of "reasonable conjecture", correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome'.
84 Gageler J, on the other hand, at [55] maintained the position his Honour advanced in MZAPC:
Returning to the statement in WZARH, and now explaining it in light of SZMTA and MZAPC, the starting point is to highlight its foundational proposition that where the procedure adopted by an administrator can be shown on the balance of probabilities itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness will be established by nothing more than that failure. Building on that foundation, the statement can be taken to underscore that the denial of procedural fairness so established on the balance of probabilities will result in a finding of jurisdictional error if the applicant for relief establishes nothing more than the reasonableness, within the parameters set by the historical facts established on the balance of probabilities, of the conjecture that the decision could have been different had a fair opportunity to be heard been afforded. Unless there is something in the historical facts established on the balance of probabilities upon which to base an inference that the decision could not have been different had a fair opportunity to be heard been afforded, establishing the reasonableness of that conjecture will not be difficult.
85 Gordon J maintained her Honour's support for the idea that materiality was irrelevant unless a respondent to a judicial review application showed that the denial of procedural fairness did not deny the affected person the possibility of a successful outcome: [77] and [81] per Gordon J. The position of Edelman J was more nuanced but, in any event, inconsistent with the majority formulation in MZAPC: see [94] but cf [104], [105] and [127].
86 The situation on the authorities is therefore unclear. There is a clear enunciation of an approach by four Justices in MZAPC. In Nathanson the Court sat only six Justices. Three of those Justices reformulated the test in MZAPC in terms which do not appear in MZAPC. One of them adhered to the terms of MZAPC. Two of them voiced their continuing opposition to materiality. Consequently, there is no majority ratio decidendi for the unanimous decision to dismiss the appeal. As such, the terms of MZAPC remain binding unless this Court were persuaded by the reasons of Kiefel CJ, Keane and Gleeson JJ that the reformulation in Nathanson does not effect a change to what was held in MZAPC (as their Honours said in Nathanson at [33], 'Nothing said in MZAPC denies this'). We are not so persuaded. Whilst the statement of the plurality in Nathanson at [33] seems, with respect, a more sensible approach than that required by MZAPC, in our view it extends or goes beyond what was held in MZAPC. That Gageler J wrote separately in terms which are the same as in MZAPC underscores this.
87 Consequently, we conclude that we are bound to apply MZAPC without regard to the reformulation of the plurality in Nathanson.
88 In this case, as the Appellant correctly submits, the record before the Minister establishes that there was insufficient material for the Minister to conclude that the Appellant had committed the offence. The relevant provisions of the Criminal Code are contained in Division 73. Section 73.1 provides:
73.1 Offence of people smuggling
(1) A person (the first person) is guilty of an offence if:
(a) the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and
(b) the entry of the other person into the foreign country does not comply with the requirements under that country's law for entry into the country; and
(c) the other person is not a citizen or permanent resident of the foreign country.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) Absolute liability applies to the paragraph (1)(c) element of the offence.
(3) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of people smuggling.
89 Section 73.3 provides:
73.3 Aggravated offence of people smuggling (at least 5 people)
(1) A person (the first person) is guilty of an offence if:
(a) the first person organises or facilitates the entry of a group of at least 5 persons (the other persons) into a foreign country (whether or not via Australia); and
(b) the entry of at least 5 of the other persons into the foreign country does not comply with the requirements under that country's law for entry into that country; and
(c) at least 5 of the other persons whose entry into the foreign country is covered by paragraph (b) are not citizens or permanent residents of the foreign country.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
(2) Absolute liability applies to the paragraph (1)(c) element of the offence.
(3) If, on a trial for an offence against subsection (1), the trier of fact is not satisfied that the defendant is guilty of that offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 73.1(1), the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of an offence against subsection 73.1(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
90 Section 73.3A provides:
73.3A Supporting the offence of people smuggling
(1) A person (the first person) commits an offence if:
(a) the first person provides material support or resources to another person or an organisation (the receiver); and
(b) the support or resources aids the receiver, or a person or organisation other than the receiver, to engage in conduct constituting the offence of people smuggling.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) Subsection (1) does not apply if the conduct constituting the offence of people smuggling relates, or would relate, to:
(a) the first person; or
(b) a group of persons that includes the first person.
(3) To avoid doubt, the first person commits an offence against subsection (1) even if the offence of people smuggling is not committed.
91 These provisions were given extra-territorial effect by s 73.4:
73.4 Jurisdictional requirement
A person commits an offence against this Subdivision only if:
(a) both:
(i) the person is an Australian citizen or a resident of Australia; and
(ii) the conduct constituting the alleged offence occurs wholly outside Australia; or
(b) both:
(i) the conduct constituting the alleged offence occurs wholly or partly in Australia; and
(ii) a result of the conduct occurs, or is intended by the person to occur, outside Australia.
92 The Minister's reasons for non-revocation (at [1] and [13]) and ASIO's unclassified statement of grounds for the qualified security assessment demonstrate that the jurisdictional requirement was satisfied because the Appellant held an Australian visa and was resident here at the time of his involvement in the people smuggling venture to Reunion. The briefing note to the Minister (at [25]) said this:
25. In this case it is recommended that a decision be made relying on the unclassified Statement of Grounds provided by ASIO, along with information on Departmental systems which can be disclosed in the Statement of Reasons. There is sufficient information to substantiate the ground in s501(6)(c) in the unclassified material. Proceeding on this basis will limit the risk of having to disclose a classified QSA to [the Appellant] and the negative impact this would have on the Department's ongoing relationship with ASIO and risk to national security.
93 From this it may be inferred that the material upon which the Minister relied in making her decision comprised the unclassified statement of grounds which accompanied the Minister's decision together with information from the Department's systems to the extent that it was disclosed in the Minister's reasons. Nothing in those materials suggests that there was evidence before the Minister that the requirements of s 73.1(1)(b) were met, i.e., that the entry of the 120 Sri Lankans into Reunion was against the laws applying there.
94 That requirement was a 'circumstance in which conduct … occurs' within the meaning of s 4.1(1)(c) of the Criminal Code so that by force of that provision the matter in s 73.1(1)(b) was one of the physical elements of the offence. Since s 73.1(1)(b) does not specify a fault element for the physical element, s 5.6(2) applies so that the fault element is taken to be recklessness. By s 5.4(1) a person is reckless with respect to a circumstance if:
5.4 Recklessness
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
95 The Appellant submitted that the Minister could not have been satisfied that the Appellant had committed an offence. If there was material before the Minister which suggested the entry by the Sri Lankans into Reunion was against the laws applying there, then this question would arise. However, since there was no such material it does not.
96 The question then becomes whether these matters allow an inference to be drawn that there was a realistic possibility that the second Minister could have decided to revoke the cancellation decision had that submission been made. The answer to that turns on what, had that submission been made, the Minister could have done. The options would appear to include:
- The Minister deciding that she was not going to pursue any line of inquiry about whether the conduct was criminal and pursuing thereafter a line of reasoning which avoided the pitfalls of [12] and [15] of her reasons for non-revocation;
- The Minister deciding to seek further information from the Department and being informed that the law of Reunion did not make unlawful the entry of the 120 Sri Lankans; or
- The Minister deciding to seek further information from the Department and being informed that the law of Reunion did make unlawful the entry of the 120 Sri Lankans.
97 None of these constitute historical facts referred to in MZAPC. Rather, they are series of competing inferences drawn from the Minister's decision record. It is true that (b) and (c) would have resulted in a factual inquiry about the state of the law in Reunion. But that inquiry would only occur if the Minister was minded to seek further information from the Department and the question of whether that would occur is itself merely an inference from other facts.
98 It seems to us that inference (a) was a realistic possibility although not the only possibility. If that inference were drawn, there was also a realistic possibility that the Minister could have decided to revoke the cancellation decision. Once the colour was drained from the criminal aspect of people smuggling, the Minister's reasoning about contempt for the law and low moral standards becomes more problematic although not necessarily insurmountable. As the Court pointed out during argument in Jaffarie, the moral obloquy of people smuggling is not always clear cut as the example of Oskar Schindler illustrates.
99 This is not to say that the Minister might not have reasoned by reference to the particular features of this people smuggling venture that it reflected poorly on the character of the Appellant. Rather, it is only to observe that the shortcut of relying upon the supposedly criminal nature of the conduct as a crutch for that conclusion would not have been available. To do so, the Minister would have been required to conduct a more detailed analysis of the morality of this particular people smuggling venture.
100 In any event, we conclude that there was a realistic possibility, had the Minister afforded the Appellant procedural fairness, that his revocation application would have succeeded.
101 In those circumstances, we conclude that the Minister denied the Appellant procedural fairness and that this breach was material to the outcome. Jurisdictional error is therefore established. Accordingly, the second Minister's non-revocation decision should be set aside and the matter should be reconsidered according to law.