65 The Minister acknowledged this fact when he provided his statement of reasons on 21 March 2003. He prefaced that statement with the following qualification:
"2. Mr Dagli's case is one of many visa cancellations that I have personally considered. This document sets out my best recollection of the reasons for my decision of 15 October 2002."
66 It is hardly surprising that the Minister should make this qualification. The decision that he took on 15 October 2002 required him to balance a number of quite complex factors. He was then directed, some six months later, to explain the thought processes that he had undertaken previously in circumstances where he could hardly be expected to have a detailed recollection of why he had chosen to cancel the appellant's visa. He was in an even more invidious position because, by the time he came to reconstruct his thought processes, the matter had been fully argued before the primary judge, and there had been a ventilation of all the alleged defects in the decision-making process.
67 It is common sense that a statement of reasons produced long after a decision has been taken must be treated with caution. There is not the slightest suggestion, in this case, that the Minister or his advisors were influenced, in formulating the statement of reasons, by what had been said in argument before the primary judge. Nonetheless, there is great force in the adage that justice must not only be done, but seen to be done. A person whose visa has been cancelled, without reasons being provided, will inevitably feel that a statement of reasons, provided after the decision has been challenged, may have been tailored in order to render those reasons immune from review.
68 Nonetheless, not only does Ayan support the course taken by the primary judge, so too does the recent decision of the High Court in ex parte Palme. In that case, Gleeson CJ, Gummow and Heydon JJ dealt with the nature of the obligation imposed upon the Minister by s 501G(1)(e). They agreed with the decision of the Full Court in W157/00A that an issues paper did not constitute a statement of the reasons required. They noted that mandamus might lie to compel the Minister to provide reasons. Importantly, they said at [48]:
"The visa cancellation decision may be reviewed in this court for jurisdictional error. Such error may be found from what is disclosed by reasons provided under s 501G(1)(e). Failure to provide reasons may also be reviewed in this court and compliance by the minister with the statutory duty may be ordered." (emphasis added)
69 Given what was said in both Ayan and ex parte Palme, it is not surprising that the primary judge elected to direct the Minister to provide a statement of reasons. Even so, we respectfully take issue with the proposition that this amounted to an order that the Minister comply with his statutory duty. That duty required that the Minister provide reasons at the time he notified the appellant of his decision. A statement of reasons provided six months later, in response to an order of the Court, is not compliance with the Minister's statutory duty. The power to make such an order should, in our view, be sparingly invoked. When reasons are provided, long after a decision is taken, they should be treated with extreme caution.
70 Counsel for the appellant accepted that his predecessor's consent to the admission of the statement of reasons precluded him from arguing before this Court that the primary judged had erred in admitting that statement. He submitted, however, that he was not precluded from arguing that the primary judge gave too much weight to that statement of reasons.
71 Counsel for the respondent submitted that the primary judge had been entitled to treat the statement of reasons as a complete and accurate record of what had influenced the Minister when he decided to cancel the appellant's visa.
72 We are unable to accept the respondent's submission. The Minister made it plain that the statement of reasons contained only his "best recollection" of why he had decided to cancel the appellant's visa. Moreover, he was candid enough to acknowledge that the appellant's case had been "one of many" visa cancellations that he had personally considered. These were, in our view, powerful indications of the fact that the Minister was doing his best to recollect what had occurred, but with a strong caveat as to its accuracy.
73 It is clear enough that the Minister's decision could not have been an easy one. The appellant had a number of convictions, at least one of which was obviously very serious. On the other hand, there was a Probation and Parole Report that suggested that he had reasonable prospects of rehabilitation provided that he overcame his drug problems. The Minister had to balance these matters against the very real hardship that the appellant and his family would suffer if his visa were cancelled.
74 There is no doubt that the Issues Paper contained some material that was extremely prejudicial to the appellant. As the primary judge correctly concluded, he was given no real opportunity to comment upon that material.
75 As indicated earlier, his Honour identified four specific matters, adverse to the appellant, that were before the Minister, and that he had been denied the opportunity to address. They were the appellant's trips to Turkey, his plans to marry a woman of Turkish origin, the Probation and Parole Report, and the officer's assessment that he posed a medium to high risk of re-offending.
76 The primary judge noted that the Issues Paper claimed at one point that the appellant had visited Turkey "on a number of occasions". That statement was, at best, misleading. In truth, the appellant had been to Turkey only twice, once for a short time when he was a child, and again years later during which time he was conscripted to serve in the Turkish Army. His Honour observed, correctly in our view, that the suggestion that the appellant had regularly visited Turkey was likely to lessen the hardship that he might otherwise be thought to suffer by having his visa cancelled.
77 Counsel for the respondent contended that there was little risk of this. He pointed out that the Issues Paper made it clear, at the outset, that the appellant had only left Australia on two occasions, once between 17 May 1983 and 3 March 1984, and once between 29 June 1991 and 22 February 1994. In addition, he noted that a computer-generated printout showing a complete record of the appellant's movements into and out of Australia was attached to the Issues Paper.
78 It is of course entirely possible that the Minister did, indeed, detect the discrepancy between what was contained in the summary of the appellant's immigration history and the comment that he had visited Turkey "on a number of occasions". However, it is also possible that the Minister did not detect that discrepancy. In that event, he may have been influenced, consciously or subconsciously, to think that the appellant would not suffer great hardship if his visa were cancelled. Certainly, that was the intent of the author of the comment in the Issues Paper. He said in relation to the visits to Turkey, and the desire to marry a woman of Turkish origin:
"Given this, it is reasonable to conclude that Mr Dagli has been able to retain some of his cultural ties even though he has been a resident of Australia for thirty years."
79 The comment was obviously highly prejudicial. The appellant had claimed, in answer to a question posed in the questionnaire, that if his visa were cancelled he would be going to a country that "he really did not know". He claimed that he "would not know what to do there". The matters asserted, and the comment, significantly undermined these claims. The appellant ought to have been given the opportunity to be heard in relation to them.
80 There is less substance in the complaint regarding the Minister's failure to provide the appellant with the opportunity to comment upon the Probation and Parole Report. That report was highly favourable to the appellant. Nonetheless, as his Honour correctly noted, there were some matters contained within it that could have been further emphasised, or supported by additional and updated material.
81 Finally, there is the extraordinarily negative assessment, in the Issues Paper, of the appellant's likelihood of re-offending. That assessment runs directly counter to the Probation and Parole Report. Indeed, the Minister himself rejected it when he came to prepare his statement of reasons in March 2003. He concluded that the appellant posed only a "low to moderate" risk of re-offending.
82 Counsel for the respondent submitted that this showed that the Minister had not been influenced in any way by what was said about the appellant in the Issues Paper. We are unable to accept that submission. It is based largely upon the premise that the Minister's statement of reasons precisely and accurately recorded his thought processes of six months before. In the light of the Minister's own qualification, that is a somewhat doubtful proposition. Moreover, it is at least arguable that had the appellant been told, as he ought to have been, that an officer had assessed him as posing a medium to high risk of recidivism, he would have been in a position to meet that allegation.
83 Counsel for the respondent submitted that the primary judge had erred by concluding that, absent the statement of reasons, the appellant would have been denied natural justice. His argument, as developed in support of his notice of contention, was essentially as follows. There can only be a denial of natural justice, arising from adverse material being placed before a decision-maker, and not disclosed to an applicant, if this material in some way impacted upon the decision. The statement of reasons, focussing overwhelmingly as it did upon the protection of the community, and the community's expectations, made it plain that none of the adverse material had any influence upon the actual decision. There was nothing that the appellant could have said, even if he had been provided with this material, that would have affected the outcome. Accordingly, there had never been a denial of natural justice.
84 We have difficulty with this argument. It is true that there are statements in some of the authorities that seem to support it. They suggest that merely because a decision-maker has material before him that is of an adverse nature, and the person affected is not informed of that fact does not mean that there has been a denial of natural justice. The question is, has the material impacted upon the decision? If not, the answer is no.
85 However, there are other statements in the authorities that suggest that this issue should be approached in a different way. These cases suggest that there is indeed a denial of natural justice in such circumstances, but not one that warrants the grant of relief.
86 The primary judge concluded that there had been a denial of natural justice. However, the statement of reasons had shown that the adverse material had not influenced the Minister. Counsel for the respondent submitted that it followed from this finding, not only that the primary judge was correct to dismiss the application for review, but also that the initial finding of a denial of justice had been negated. In other words, that finding should be regarded as provisional, and as having been remedied once the true picture was established.
87 Counsel for the respondent submitted that this approach was supported by Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 195 ALR 502 at [37]-[38].
88 However, as the primary judge noted, ex parte Lam was a case of a very different kind. It did not involve any failure on the part of the Minister to afford the applicant an opportunity to rebut material put against him. Instead, it concerned a claim by the applicant that he had a "legitimate expectation" that the procedure foreshadowed in correspondence with the Tribunal that a particular person would be contacted had not been followed. Gleeson CJ rejected that claim in so far as it rested upon some general doctrine of legitimate expectation. It was in that context that he observed that no "practical injustice" had been shown because the applicant had not demonstrated any loss of opportunity to advance his case.
89 Counsel for the respondent submitted that the approach taken in ex parte Lam was of general application, and required the appellant in this case to demonstrate what, if anything, he could usefully have said in response to the adverse matters set out in the Issues Paper had they been drawn to his attention. He relied upon Re Ruddock; ex parte S154/2002 (2003) 201 ALR 437 in support of that contention. In that case, the prosecutor, a citizen of Sri Lanka, had applied for a protection visa. She made a claim before the Refugee Review Tribunal that the police in Sri Lanka had raped her. The Tribunal member stated:
"I don't need to ask you any further question about that particular incident."
90 The Tribunal subsequently affirmed the delegate's decision, refusing the prosecutor a protection visa. In its decision, it rejected her claim that she had been raped. In a joint judgment, Gummow and Heydon JJ concluded that the prosecutor had not been misled by what the Tribunal said into thinking that it had accepted her claim that she had been raped. Their Honours noted that in none of the prosecutor's three affidavits had she said that she had been misled, or that she would have taken a different course had she not been misled by what the Tribunal member said.
91 In our view, their Honours' judgment in ex parte S154/2002 does not support the submission that ex parte Lam establishes a principle that is not only of general application, but also a radical departure from well-established authority. The correct position, in our view, was summarised by Hely J in Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069. His Honour said at [34]:
"If a breach of the rules of natural justice is established an applicant would ordinarily be entitled to relief unless the Court was satisfied that the breach could have had no bearing on the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Review Tribunal; Ex parte Aala (supra) at 116-117. Accordingly, I reject the submission put by the solicitor for the Minister that this application must fail because of the failure on the part of the applicant to demonstrate by evidence that some practical unfairness accrued to him as a result of the procedures which were adopted. If the applicant was not informed of the case which he had to meet, that is sufficient to establish 'practical injustice' without the applicant having to prove what he would have done had he been informed of that case. Re Minister for Immigration & Multicultural Affairs, Ex parte Lam (2003) 195 ALR 502 does not decide otherwise: NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52, at [31]; VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at [25]: Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497 at [61]." (emphasis added)
92 In Ranginui v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1280, Weinberg J took the same approach to this issue. As his Honour noted, in Re Refugee Review Tribunal; ex parte Aala(2000) 204 CLR 82, Gleeson CJ concluded that the Tribunal, having inadvertently misled the applicant as to the nature of the material before it, deprived him of an opportunity to answer, by evidence and argument, adverse inferences that might be drawn. Had he been given an opportunity to correct the misunderstanding, "a different view might have been taken as to his credibility" (emphasis added). His Honour applied Stead v State Government Insurance Commission (1986) 161 CLR 141, saying that no one could be "sure" that the Tribunal's ultimate conclusion would have been the same. To the same effect were the judgments of Gaudron and Gummow JJ at 116-7, McHugh J at 122, and Kirby J at 130-1.
93 In WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171, a Full Court of this Court observed, at [57], that ex parte Lam was "distinguishable from cases such as Kioa v West where the denial of procedural fairness arises because the appellant is not given the chance to answer the case put against him." WACO seems to us to support the contention that ex parte Lam should not be understood to have overruled either Stead or Aala. Our conclusion that ex parte Lam has not altered the law is supported by a recent Full Court decision in NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262 at [16]-[18].
94 Counsel for the respondent submitted that the statement by Hely J in Tuncok, set out above, was erroneous. He argued that his Honour had been wrong to treat ex parte Lam as not having altered the traditional position, namely that an applicant not informed of the case he must meet suffers "practical injustice" without having to prove what he would have done had he been informed of that case. He relied upon ex parte S154/2002, and NAFF of 2002 in support of his contention that Hely J had erred.
95 In our view, the submission advanced on behalf of the respondent is misconceived. The principles enunciated in cases such as Stead and Aala are well established. Those principles are not to be taken as having been overruled by a side wind, still less by a judgment of the Court that was given in a particular, and quite specific context. It is one thing to say that an applicant who claims to have been denied a "legitimate expectation", or asserts that the Tribunal misled him, must prove that he suffered "practical injustice". In such cases, the applicant is required to demonstrate that what occurred actually affected the outcome. It is altogether another thing to suggest that an applicant, whose case has been considered by a Tribunal that has before it material of an adverse kind, without informing the applicant of that fact, is not entitled to relief unless he can show that there was something useful that he could have said to rebut that material. That is simply not our understanding of the law.
96 We are fortified in our conclusion that Stead and Aala remain good law by the observations of the High Court in ex parte Palme at [25]. There, the majority referred to Aala, without in any way casting doubt upon the reasoning in that case. Both Stead and Aala plainly support the proposition that once a breach of the rules of natural justice is established, an applicant is ordinarily entitled to relief unless the Court is persuaded that the breach could not have had any bearing on the outcome. Ex parte Palme was decided on 2 October 2003, while S154/2002, the case upon which counsel for the respondent placed such heavy reliance, was decided six days later. It would be drawing a long bow, in our view, to treat the observations of Gummow and Heydon JJ, in S154/2002 as being inconsistent with their apparent approval of Stead and Aala, only a few days earlier.
97 We are not persuaded by the submission of counsel for the respondent that the appellant's failure to file any affidavit, or adduce any evidence to show that there was something positive that he could have said in response to the adverse material, that might have persuaded the Minister not to cancel his visa, means that he did not suffer any "practical injustice". Nor are we persuaded by the submission that, accordingly, notwithstanding the primary judge's "provisional view", the appellant was not denied natural justice. We consider, in accordance with Stead and Aala, that the appellant, having established a breach of the rules of natural justice, was entitled to succeed unless the primary judge was satisfied that the breach could have had no bearing on the outcome. In accordance with the observations of the High Court in Aala¸ that is not an easy task. If the adverse material might realistically have affected the outcome, the decision-maker will have failed to discharge the onus that rests upon him.
98 We have given careful consideration to the primary judge's conclusion that the Minister's statement of reasons demonstrates that the breach of the rules of natural justice that had occurred in this case had not affected the outcome. We note that his Honour said that he arrived at that conclusion "not without some hesitation". We can well understand why he expressed that reservation.
99 In our respectful view, his Honour erred in treating the statement of reasons as a complete answer to the breach of the rules of natural justice that he correctly found had been established. The Minister's reasons were expressed in qualified terms. We think the weight that his Honour accorded them was, in all the circumstances, excessive.
100 In our view, the mere fact that the Minister did not mention matters such as the appellant's previous visits to Turkey, or his desire a marry a woman of Turkish origin, does not establish that these matters had no bearing upon the outcome at the time the decision was taken. These matters were "credible, relevant and significant" in the sense described by Brennan J in Kioa v West at 628-9. Accordingly, the Minister had to establish to the degree required in Aala that they played no role in his decision. This he has not done. The same may be said about the assessment of the appellant's risk of recidivism. It is no answer to say, as counsel for the respondent submitted, that this assessment played no role in the decision because, some six months later, the Minister concluded that the appellant posed a lesser risk. This does not exclude the possibility that he had earlier been influenced by his officer's more negative assessment.
101 As indicated earlier, counsel for the respondent sought to rely upon a notice of contention, challenging his Honour's conclusion that there had been a breach of natural justice. He also sought to invoke an argument (that was rejected by the primary judge) regarding what he submitted to be the limited effect of Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, and Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicants S134/2002 (2003) 195 ALR 1. He contended that not all breaches of the rules of natural justice gave rise to jurisdictional error. Some such breaches continued to attract the protection of s 474. He relied upon VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205 in support of that proposition.
102 It is sufficient for present purposes to observe that the notice of contention was filed out of time. No adequate explanation was provided to the Court for the delay. We would not extend time, principally because we consider that the primary judge dealt correctly with the matters set out in the notice. It would therefore be futile to permit the respondent to rely upon it.
103 It follows that, in our opinion, the appeal should be allowed. The decision of the primary judge dismissing the application for review should be set aside. The respondent's decision to cancel the appellant's visa, made on 15 October 2002, should also be set aside. Costs should follow the event. The appellant should have his costs of the proceeding below, and of the appeal.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.