Within seven days, the parties confer and file proposed agreed orders giving effect to the reasons of the Court.
In the absence of agreement between the parties, within seven days, each party file and serve separate proposed orders and written submissions of no more than three pages in support of their proposed orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O'CALLAGHAN J
The applicant seeks judicial review of a decision made by the second respondent (Tribunal) dated 24 August 2023. The Tribunal affirmed a decision by a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the applicant's global special humanitarian visa (visa) under s 501CA of the Migration Act 1958 (Cth) (Migration Act).
By an amended originating application dated 13 August 2024, the applicant raises three grounds of review:
The Administrative Appeals Tribunal (Tribunal) denied the Applicant procedural fairness by asking the Applicant questions about the use of illicit drugs the answers to which could incriminate him without advising him of his right to invoke the privilege against self-incrimination.
The Tribunal failed to afford the Applicant procedural fairness by failing to ask the Applicant to comment on the adverse evidence elicited in cross-examination from his partner, Ms AD, as to him drinking alcohol in around 2023.
The Tribunal took into account irrelevant considerations by having regard to a record of offending by the Applicant for which no convictions were recorded.
For the reasons that follow, the applicant succeeds on ground 1, and the relief he seeks will be granted.
The applicant arrived in Australia on 30 December 2004.
He first offended in October 2006. He subsequently served four terms of imprisonment of between five to 13 months. He was also given suspended sentences. The offences for which he was convicted included numerous violent offences.
In addition to eight sentences of full-time custodial imprisonment, the applicant was subject to four community correction orders between May 2007 and August 2018.
On 22 August 2019, the applicant's visa was cancelled under s 501(3A) of the Migration Act.
On 9 June 2020, a delegate of the Minister decided under s 501CA(4) of the Migration Act not to revoke the cancellation.
On 7 September 2020, the Tribunal set aside the delegate's decision and substituted a decision to revoke the visa cancellation.
The applicant reoffended, and was taken into custody in early November 2021.
On 25 July 2022, he was found guilty and sentenced to an aggregate term of imprisonment of 12 months.
On 18 August 2022, the visa was cancelled under s 501(3A) of the Migration Act.
On 30 May 2023, a delegate of the Minister decided not to revoke the cancellation of the visa.
On 8 June 2023, the applicant applied to the Tribunal for review of the delegate's decision. The applicant was self-represented.
On 24 August 2023, the Tribunal decided to affirm the delegate's decision not to revoke the cancellation of the visa.
I turn to Ground 1.
The privilege against self-incrimination is a fundamental common law right. See, by way of example, Sorby v Commonwealth (1983) 152 CLR 281 at 294 (Gibbs CJ), 309 (Mason, Wilson and Dawson JJ) and 311 (Murphy J).
As Gibbs CJ said at 294:
If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence. The traditional objection that exists to allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission. It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt. Moreover the existence of such a power tends to lead to abuse and to the concomitant moral deterioration in methods of obtaining evidence and in the general administration of justice.
(Internal quotations and citation omitted).
It was common ground that a tribunal may deny an unrepresented party procedural fairness in circumstances where it fails to advise the party of the right to invoke the privilege against self-incrimination, where the failure on the part of the tribunal to advise the unrepresented party of the right to invoke the privilege occasioned the applicant a practical injustice.
The transcript of the hearing records the following exchanges between the Tribunal member and the applicant about his illicit drug use:
Now, you've talked about alcohol. Have you used any illicit drugs in the past?-
--I used marijuana. That's why and then I started going marijuana because I get a problem, (indistinct) when I get problem with the police and all the time with different people and (indistinct) just wanted I go, I can't sleep if I don't drink or I have to drink to numb my body to sleep. Because otherwise I was thinking a lot. And I find - - -
[…]
Okay. You mentioned marijuana. Any other drugs?---A little bit, (indistinct) for
myself I smoked ice a bit, but not really.
And when was that?---Ice, I started smoking it 2019.
Until when?---I stopped in 2019 when I get arrested. And I don't like it. So only in 2019 and you didn't like it?---Yes.
Any other drugs?---No.
As is readily apparent, the Tribunal elicited those answers about the applicant's illicit drug use in the absence of any relevant warning.
I should add that it was common ground that crystal methamphetamine (commonly referred to as ice) is a "drug of dependence" within the meaning of s 75 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which provides that "[a] person who, without being authorized … uses or attempts to use a drug of dependence is guilty of an offence against this Act …"
The Tribunal stated (at [48]) (when considering the Applicant's evidence under the heading "Alcohol and drugs"):
The Applicant said after arriving in Australia in 2004 he started 'drinking, partying, and clubbing', which was not allowed in Sudan and Egypt. He did not know how to control his alcohol intake and said: 'it takes a while to stop' when he starts. He drinks even more when stressed because he wants to forget his troubles, is 'annoyed' he does not have solutions, and there is no one he can 'ask to fix this'. The Applicant referred to negative peers with whom he drank who keep telling him: 'don't worry about it'. He has used cannabis for some time because of an inability to sleep, including after incidents like being arrested. He recalled 'smoking ice' in 2019 but said he stopped because he did not like it.
In considering the protection of the Australian community from criminal or other serious conduct, the Tribunal stated (at [101]):
In addition to the Applicant's criminal history, the Tribunal can consider 'other conduct to date' under this primary consideration. For example, notwithstanding the absence of drug convictions in the Applicant's criminal history, he admits to using cannabis, ice, and nonprescribed sleeping medication during his residence in Australia.
[Footnote] 75 Applicant's oral evidence and Exhibit R1, 157 [21].
Exhibit R1 was the applicant's statement. It contained no mention of ice.
It follows that the Tribunal had specific regard to the applicant's admissions to it regarding illicit drug use, and no other relevant evidence.
Further, at [119], the Tribunal stated (in the context of considering the risk to the Australian community should the applicant re-offend): "The Applicant's alcohol and drug abuse has repeatedly clouded his judgement in the past and the Tribunal considers this is yet to be properly acknowledged or dealt with."
Accordingly, as counsel for the applicant, Ms Levine, submitted, the Tribunal factored its statements as to the use of drugs, including ice, into its decision-making in a significant way.
The Minister did not dispute that the applicant was asked questions about his drug use, and that was something that could possibly give rise to a claim for privilege against self-incrimination, and that procedural fairness required the tribunal to notify the applicant of that fact.
Counsel for the Minister, Mr Hibbard, submitted, however, that in this case, no practical injustice was occasioned by the failure to give a warning, and contended that in those circumstances, such failure to warn will not constitute jurisdictional error on the part of the Tribunal. See, for example, Promsopa v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2020] FCA 1480 at [37] (Allsop CJ); Kohli v Minister for Immigration (2018) 74 AAR 433; [2018] FCA 540 at [33]-[34], [39].
The Minister also submitted that the written material before the Tribunal (including material the applicant provided himself) was replete with references to the applicant's illicit drug use. This included, so the submissions contended:
(a) the transcript of the hearing before a Magistrate on 25 July 2022, where the applicant's lawyer made submissions that the applicant "does and was smoking cannabis on an infrequent basis [sic]". In sentencing the applicant, the Magistrate took into account the applicant's consumption of "alcohol and cannabis", and stated "[o]bviously that increases his risk in the community with that kind of drug and alcohol issues". There is also an uncontradicted reference to an admission by the applicant concerning his "weed dealer";
(b) the applicant's signed statement dated 22 May 2020, provided to the Department, in which he stated he had problems with "drug and alcohol dependence", having "used more substances to try to forget [his problems]", that he had had trouble sleeping "due to the drugs and alcohol", that the root cause of the domestic violence he had caused to his former partner was his "drug and alcohol abuse", and that he was determined to deal with his "drug and alcohol dependency";
(c) the applicant's signed statement dated 14 August 2020, provided to the Department, in which he stated he had used "drugs and alcohol" and had "received treatment for both", and that he had used drugs and alcohol since 2006;
(d) submissions made to the Department on the applicant's behalf dated 26 May 2020, which referred to the applicant having used drugs and alcohol, as part of a "cycle of substance abuse and dependency" and "drug dependency";
(e) the applicant's statutory declaration dated 14 March 2023, provided to the Department, in which he stated he started to use drugs in 2006;
(f) the applicant's statutory declaration dated 19 April 2023, provided to the Department, in which he referred to having smoked marijuana on 5 November 2021;
(g) an email that the applicant sent to the Tribunal on 10 August 2023, attaching a counsellor's report of the same date, which described the applicant as having a "history of cannabis and alcohol abuse";
(h) the records produced under summons by Corrections Victoria, including:
(i) a referral letter dated 8 October 2019, stating that the applicant reported a history of "Psychoactive substance abuse; alcohol and Cannabis as a way and means of managing his depressive symptoms";
(ii) a record of the Metropolitan Remand Centre dated 12 November 2021, which stated under the heading "drugs and alcohol": "[the applicant] states he doesnt (sic) drink much anymore - 1-2 cups of wine; then said maybe half a cask used to smoke ice regularly but now states only occasionally";
(iii) records of the Metropolitan Remand Centre dated 20 November 2021, referring to the applicant's "Drug & Alcohol Hx" as "Cannabis, Alcohol, ICE", and a record that he had "reported" that "He had used ICE, Marijuana and ETOH (combined them together)" (emphasis added), and that he appeared to have "experienced drug induced psychosis";
(iv) records that the applicant identified a history of consuming cannabis/marijuana; and
(v) a record of the applicant's medical history apparently prepared in 2022 recording the applicant as an "Ex-User" of "Drug"; and
(i) community correction orders repeatedly made in respect of the applicant requiring him to "undergo assessment and treatment for alcohol/drug addiction".
The Minister also submitted that there were also numerous references to the applicant taking sleeping pills or tablets, although it is difficult to see the relevance of such matters.
The references set out at [31] of these reasons are lengthy, to be sure, but when they are examined none of the matters referred to form any rational basis for the finding made by the Tribunal at [101] of its reasons.
One category of documents comprises notes scattered through the applicant's medical records, apparently taken by nurses and psychiatrists and the like, made during the applicant's time in detention.
None of them constitute admissions and their provenance and veracity were never tested. They are second hand hearsay records, nothing more. And as the Minister's counsel conceded, other than one note in the medical records ("[u]sed to smoke ice regularly"), the notes are "mostly directed to cannabis".
The high point of the other material (that is, material not sourced from medical notes) was said to be an admission made by a legal representative at a sentencing hearing that "drugs aren't an issue, although he does and was smoking cannabis on an infrequent basis". There are also some general references by the applicant to his "drug abuse" in his statement to the Tribunal dated 14 August 2020.
In those circumstances, it is unsurprising that the Tribunal paid no regard to any of those matters now relied on by the Minister in making the finding at [101].
Accordingly, I do not accept the Minister's submission that the failure to warn the applicant was immaterial. Had the Tribunal not made this error, its decision realistically could have been different. See, most recently, LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) (the test for materiality is whether the decision that was in fact made could, not would, realistically have been different if there had been no error).
In my view, in failing to advise the applicant of his right to invoke the privilege against self-incrimination before embarking on questioning which elicited from the applicant statements that were then used in the Tribunal's evaluative exercise in this significant way, the Tribunal committed jurisdictional error, and the relief sought by the applicant should be granted.
It follows that it is not necessary to consider grounds 2 and 3.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices O'Callaghan.
Parties
Applicant/Plaintiff:
CIJ23
Respondent/Defendant:
Minister for Immigration, Citizenship and Multicultural Affairs