Dagli v Minister for Immigration & Multicultural & Indigenous Affairs

relevant facts and legislation 2 The appellant was born in Turkey on 6 November 1971. Although the documents demonstrate some confusion as to precisely when he arrived in Australia, the better view seems to be that he arrived on 6 September 1972. 3 In 1993, while the appellant was abroad, he applied for and was granted a Resident Return Visa. By force of the Migration Reform (Transitional Provisions) Regulations, the appellant's visa was deemed to continue to be in effect on and after 1 September 1994 as a Transitional (Permanent) Visa. 4 The appellant has an extensive criminal history, mostly for burglary and minor drug-related offences. Unlike most offenders, it seems that his involvement in crime did not begin until he was 26 years old. His first conviction was recorded on 18 March 1998. For the next two years, he was repeatedly before the courts. It was accepted that the offences committed by the appellant occurred after the appellant had become addicted to heroin. 5 On 21 March 2000, the appellant was sentenced in the Liverpool District Court to a fixed minimum term of three years' imprisonment, with an additional term of three years, for the offence of robbery armed with an offensive weapon. This offence was by far the most serious for which he was ever sentenced. 6 On 23 July 2002, whilst the appellant was still in custody for that and other offences, an officer of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") wrote to the appellant advising him that it had come to the Department's attention that his visa might be liable to cancellation under s 501 of the Migration Act. 7 Part 9 of the Migration Act contains provisions that allow the Minister to cancel a person's visa on "character grounds." Section 501 relevantly provides: "(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. … Character test (6) For the purposes of this section, a person does not pass the character testif: (a) the person has a substantial criminal record (as defined by subsection(7)); or (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or I involved in criminal conduct; or (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 (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test. Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal recordif: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution." 8 The letter to the appellant dated 23 July 2002 identified the relevant grounds for cancellation of the visa as: "Subparagraph 501(6)(a) - Substantial criminal history Subparagraph 501(6)(c)(i) - Past and present criminal conduct" 9 The letter indicated that the matters to be taken into account included the appellant's "criminal history", a copy of which was attached for his information, and "the Judge's comments". Those "comments" were, we assume, the sentencing remarks of the District Court Judge on 21 March 2000. The sentencing remarks were not, it seems, attached to the letter. 10 It should be noted that the letter also attached a copy of the Minister's Direction No 21, titled "Direction under Section 499 - Visa Refusal and Cancellation under Section 501 Migration Act 1958". In addition, it attached a questionnaire for the appellant to provide comments. 11 On 5 August 2002, the appellant completed the questionnaire. Among the questions asked was one relating to his prospects of rehabilitation. In answer to that question, the appellant attached a series of certificates for various courses that he had undertaken whilst in prison. These included a drug-rehabilitation course. 12 After receiving the appellant's answers to the questionnaire, an officer of the Department prepared an "Issues Paper" for the Minister ("the Issues Paper"). The Issues Paper attached several documents, including a Probation and Parole Report dated 6 August 2002 in respect of the appellant. Relevantly, this report was not provided with the letter to the appellant on 23 July 2002. 13 On 15 October 2002, the Minister decided to cancel the appellant's visa. The Minister's decision was recorded as: "I reasonably suspect that Mr Dagli does not pass the character test and Mr Dagli has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa." 14 The appellant was notified of the decision to cancel the visa on 12 November 2002. He was provided with a copy of the Issues Paper. However, no reasons for decision were given to the appellant at that time.

Application for review before the primary judge 15 On 26 November 2002, the appellant filed an application for review of the Minister's decision. He sought certiorari in relation to the decision of 15 October 2002, prohibition, and, alternatively, a declaration that the decision was unlawful. 16 Before the primary judge the appellant relied upon the following grounds in support of the application for review (see Dagli at [9]): "(1) That the Minister did not accord to the applicant natural justice. (2) That the Minister had failed to give to the applicant reasons for the decision as required by the Act. (3) That the Minister had, in making his decision, erred in law by applying the wrong test. (4) That the decision was so unreasonable that no reasonable decision maker could have made it and was, for that reason, void." 17 The Minister conceded before the primary judge that he had not provided reasons to the appellant, as required by s 501G(1)(e) of the Migration Act. That concession was properly made, as the primary judge noted, having regard to the decision of a Full Court of this Court in Ayan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 196 ALR 332. 18 During the course of the hearing on 10 March 2003, the question whether the Minister should be directed to provide reasons, as required by the Migration Act, arose in discussion. We were told that counsel for the Minister opposed the making of any such direction. The appellant's position at the time is less clear. In the end, the primary judge directed the Minister to provide reasons, on or before 21 March 2003, even though some six months had elapsed from the time the decision was taken. His Honour therefore found, at [13]-[14], that he did not need to consider ground 2, as set out above. 19 The Minister provided a statement of his reasons for decision on 21 March 2003. The primary judge made orders requiring the parties to file additional submissions after the Minister's reasons were provided, so that they could be considered before his Honour finally delivered his reasons for judgment. His Honour noted, at [13], that the parties filed submissions "which were more addressed to the matters argue[d] before the reasons were provided than to anything in the reasons themselves". 20 In dealing with ground 3, the primary judge found at [38]-[39] that, having regard to the Issues Paper as a whole, the Minister had applied the correct test, and that therefore no error of law was made out. 21 In dealing with ground 4, the primary judge held at [41] that no case of Wednesbury unreasonableness had been made out. His Honour concluded that the appellant was, in effect, seeking merits review, which was impermissible. 22 The submission with respect to ground 1 was argued before the primary judge upon a somewhat narrow basis. The question was whether the letter sent to the appellant on 23 July 2002, together with the attachments, was sufficient to comply with the Minister's obligation to afford procedural fairness so that the appellant was aware of the case he had to meet. His Honour said at [49]: "The real issue here, however, is not whether the applicant was given the opportunity to put matters to the Minister. He was. The real question is whether he was given the opportunity to know the case that was put to the Minister against him before the Minister made his decision so that he could answer that case. No doubt, if the applicant had been given a copy of the Issues Paper it would have been clear what the case against him was, even if it can be said that the Issues Paper expressed itself in terms that it was open to the Minister to make decisions rather than necessarily recommending that the Minister reach a particular decision." 23 The primary judge noted that the Issues Paper raised several specific matters that might be regarded as adverse to the appellant. In particular, the question whether he had returned to Turkey "on a number of occasions", as the Issues Paper stated, whether he was likely to visit Turkey with a view to marrying a woman of Turkish origin, as it also claimed, and whether it significantly understated the hardship that the appellant's departure would visit upon the members of his family, needed to be considered. His Honour also noted that the Issues Paper contained extracts from the Probation and Parole Report to which we have previously referred. Although that report was generally favourable, it contained some material that could have been addressed by the appellant, had he been shown it prior to the decision to cancel his visa. 24 His Honour found at [60] that the letter of 23 July 2002, together with the attachments, did not "fairly enable the applicant to know, in such a way as to be able to deal with it" all of the case that was to be made against him. In substance, he concluded that the appellant had been denied natural justice. Had the matter stood there, the appellant would almost certainly have succeeded in having the decision to cancel his visa set aside. 25 However, the matter did not stand there. The primary judge had to consider whether, in the light of the statement of reasons given by the Minister on 21 March 2003, the appellant was still entitled to succeed. That depended upon whether, having regard to what the Minister now said, the adverse matters contained in the Issues Paper had played any role in his decision. 26 His Honour determined, though not without some hesitation, that none of the adverse matters contained in the Issues Paper had had any effect upon the Minister's decision. He concluded that the decision was based overwhelmingly upon the seriousness of the appellant's criminal conduct and what he described as "the expectation of the Australian community". 27 The primary judge said at [71]: "In these circumstances and either because the matters had no material effect on the outcome, or alternatively as a matter of discretion in refusing relief, I would dismiss the application." 28 His Honour noted that the litigation had been brought about because the Minister's reasons had not been provided, as they should have been. In those circumstances, he declined to order costs against the appellant.

Grounds of appeal 29 The amended Notice of Appeal filed on 20 August 2003 contains four grounds of appeal: "(1) His Honour erred in failing to hold that the decision of the Respondent to cancel the Appellant's visa involved a failure to provide procedural fairness, in that the Respondent had regard to comments made by a Judge sentencing the Appellant ("the sentencing comments") in circumstances where: (a) the Appellant had not been provided with a copy of the sentencing comments; and (b) the sentencing remarks had not been specifically identified in any notice given to the Appellant. (2) His Honour erred in treating the Statement of Reasons dated 21 March 2003 ("the statement of reasons") as an accurate and comprehensive statement of the Respondent's reasons for deciding to cancel the Appellant's visa. (3) His Honour erred in holding that there was no failure to afford procedural fairness on the basis that the matters adverse to the Appellant canvassed in the departmental Issues Paper, which the Appellant was not given an opportunity to address, were not relied on by the Respondent in his statement of reasons. (4) Alternatively to (3), having found that the decision of the Respondent involved a breach of the principles of procedural fairness, his Honour erred in refusing to set aside that decision." 30 In written submissions filed in the appeal, and in oral submissions before this Court, counsel for the appellant expanded upon these grounds of appeal.

Ground 1 - Breach of natural justice: sentencing remarks 31 Counsel for the appellant submitted that not only had the Minister denied his client natural justice in failing to provide him with the adverse material identified before the primary judge, there had been a breach of natural justice in another respect. Both the Issues Paper, and the Minister's statement of reasons, had focussed heavily upon the "seriousness and nature" of his past criminal conduct. Under that heading, the Issues Paper quoted extensively from the sentencing remarks made by the District Court Judge in sentencing the appellant on the count of armed robbery. Those remarks were extremely unfavourable to the appellant. The letter of 23 July 2002 alluded to the judge's comments, but did not attach a copy so that the appellant could respond. Accordingly, the appellant submitted, he was not given an adequate opportunity to meet the case against him. 32 Counsel for the appellant acknowledged that the letter of 23 July 2002 made it clear that the "matters to be taken into account" would include "the Judge's comments". He submitted, however, that this allusion could not have assisted his client properly to understand the case he had to meet. Not only were the sentencing remarks not provided, the reference to "the Judge's comments" was, at best, uncertain. 33 The criminal history that was attached to the letter disclosed that the appellant had been convicted in various courts on no less than ten separate occasions. An astute reader with some knowledge of the law might have appreciated that all but one of these appearances were in Local Courts, and thus not before a "Judge". However, the appellant could not be expected to draw that distinction. Moreover, the letter of 23 July 2002 did not indicate why "the Judge's comments" were regarded as potentially significant, or which of the matters contained therein he needed to address. 34 Counsel for the appellant accepted that the complaint that he now made regarding the failure to provide him with a copy of the sentencing remarks had not been raised before the primary judge. However, he submitted that he should nonetheless be permitted to rely upon this ground, particularly since there was no further evidence that the Minister might have led to disprove the factual basis for the argument: see Water Board v Moustakas (1988) 180 CLR 491 at 497. 35 Counsel for the respondent did not object to this ground being raised on the appeal. However, he submitted that the appellant had not been denied natural justice by not being provided with a copy of the sentencing remarks, or failing to identify those passages that called for specific comment. It had been sufficient simply to bring the sentencing remarks to the appellant's attention, as the letter did. 36 Counsel for the respondent noted the following facts:

1. the appellant must have been present in court when sentenced and would therefore have heard the sentencing remarks; he was warned that "the Judge's comments" would be taken into account;
2. there was nothing to suggest that he was unaware of what the nature of those comments was;
3. in response to the letter of 23 July 2002, and to the question why he was in prison, the appellant referred specifically to his conviction for armed robbery, and correctly identified the sentence imposed for that offence;
4. the appellant had only ever been sentenced by one judge; and
5. the Minister's Direction, which was attached to the letter, clearly showed that the seriousness and nature of the appellant's criminal conduct was a matter to be taken into account as part of the Minister's concern for the protection of the Australian community. 37 Counsel for the respondent submitted that having regard to these matters, it could not be said that the appellant had suffered any prejudice by not being provided with a copy of the sentencing remarks. Moreover, there was nothing to suggest that had those remarks been provided, the appellant could have said anything of consequence to persuade the Minister not to take the view that he did about the particular offence. Without evidence to that effect, it could not be said that there was any "practical unfairness": see NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52 at [41]-[46], and Untan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 69 at [97]. 38 Counsel for the respondent also relied upon Ayan, where the Full Court held that despite the fact that the appellant's criminal history in that case was set out inaccurately, there was no breach of procedural fairness. That was because there was no evidence that the appellant would have proceeded any differently had his criminal record been correctly described. The errors were not of such magnitude as to affect either the reasoning, or the approach, of either the respondent or the appellant. 39 Counsel for the respondent contended that the present case was similar, in many respects, to Ayan. The appellant in that case failed despite the fact that his criminal record had been incorrectly stated. The appellant in the present case, whose criminal record was accurately stated, could be in no better position than the appellant in Ayan. 40 Finally, counsel for the respondent submitted that the sentencing remarks, being known to the appellant, fell within the principle of what would "obviously be open on the known material", as discussed in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 and Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Palme (2003) 201 ALR 327.

grounds 3 and 4 - breach of natural justice: the issues paper 41 These grounds of appeal allege that the primary judge erred either in holding that the Minister had not relied upon the various adverse matters contained in the Issues Paper in making his decision, or in refusing in the exercise of his discretion to set aside the Minister's decision. 42 Counsel for the appellant identified the adverse matters as being: · the reference to the number of trips that he had made to Turkey; · the reference to his intention to marry a woman of Turkish origin; · the overall effect that these references had upon the degree of hardship that his departure would have upon his family; and · the assessment that there was a medium to high risk that he would re-offend. 43 Counsel for the appellant also argued that his client should have been told, before the decision to cancel his visa was taken, that the Department would consider the Probation and Parole Report, and that it, or extracts from it, might be put before the Minister. He claimed that he was denied the opportunity to direct the Minister's attention to favourable parts of that report, or to seek to explain, or rebut, adverse parts of it. 44 Counsel for the appellant challenged the primary judge's conclusion that the Minister's belated statement of reasons showed that none of these matters, adverse though they may have been, had any actual effect upon the Minister's decision. He also challenged the primary judge's refusal to grant relief on discretionary grounds, based as it was upon the statement of reasons. 45 Counsel for the appellant invoked Kioa v West (1985) 159 CLR 550 in support of his submission that the primary judge had erred in arriving at these conclusions. He submitted that the High Court had established a principle that where adverse material was apparently "credible, relevant and significant to a decision", even bona fide disavowal of that material would not cure a failure on the part of the decision-maker to allow a person potentially affected by that material to respond to it. 46 Counsel for the respondent submitted that the primary judge had correctly concluded that none of the adverse matters identified by the appellant had in any way affected the Minister's decision. As indicated above, those matters essentially related to the appellant's connections with Turkey, and the somewhat negative assessment by the author of the Issues Paper of his risk of re-offending. However, it had become clear, in light of the Minister's statement of reasons, that none of these matters had been taken into account in arriving at the decision to cancel the visa. The Minister did not even mention the appellant's trips to Turkey, still less his plans to return there to find a wife. He specifically rejected the officer's view that the appellant posed a medium to high risk of re-offending. 47 Counsel for the respondent relied upon NAFF of 2002 where Lindgren and Stone JJ held that the fact that certain inconsistencies ultimately played no part in the Tribunal's reasoning demonstrated that there had been no breach of the rules of natural justice (cf. WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 at [41]). He submitted that Kioa v West did not assist the appellant. The present case was not one in which the decision-maker had tried to "shut out of his mind" particular material. Nor were the adverse matters that the primary judge identified of such relevance or significance to found a conclusion that the Minister's reasons did not state accurately the process of thinking that lay behind his decision to cancel the visa. 48 Counsel for the respondent noted that the Minister had accepted that the appellant's return to Turkey would cause both him and his family considerable hardship. Moreover, the Minister had also accepted that the appellant presented a low to moderate risk of recidivism, and not the greater risk identified in the Issues Paper. Despite these findings, the Minister considered that the seriousness of the crimes, and the community expectations, required that the visa be cancelled. It was submitted that the Minister had been entitled to come to that conclusion.

ground 2 - the statement of reasons provided 21 march 2003 49 Counsel for the appellant noted in his written submissions that whatever the position may have been regarding the admissibility of a statement of reasons by the Minister not in accordance with the requirements of s 501G(1)(e), ultimately that statement had been admitted into evidence by consent. He was constrained therefore to press this ground only as an ancillary aspect of grounds 3 and 4. He contended that the primary judge had given the statement excessive weight, and that he ought not to have disregarded the Issues Paper as a truer guide to the Minister's reasons. 50 Counsel for the respondent submitted that the primary judge had been entitled to treat the statement of reasons as an accurate record of the Minister's reasons. The Issues Paper was not evidence of the Minister's reasons: Ayan at [53]-[57]. See also Re Ruddock, Minister for Immigration & Multicultural Affairs; ex parte Truong (2001) 202 ALR 305, and Minister for Immigration & Multicultural & Indigenous Affairs v W157/00A (2002) 72 ALD 49. There was no doubt that the Minister had read the Issues Paper, and considered its contents. However, that did not show that the primary judge had erred in concluding that the Minister had not been influenced by what were, it was submitted, essentially peripheral matters.

notice of contention 51 On 28 November 2003, four days before the appeal was heard, counsel for the respondent filed a Notice of Contention. In that notice, he submitted that the primary judge's decision should be affirmed on additional grounds. They were: "1. His Honour erred in so far as he found breach of the rules of natural justice to have occurred with respect [to] the matters referred to in his reasons at [53] - [56] (and each of them). 2. With respect to those matters (and each of them), no practical unfairness was shown to have resulted: Particulars a) It was not shown that the appellant would have made different submissions, or would have acted in a different way had he been aware of the matter(s) relied on by Hill J at [53] - [56]; b) The said matters could not have affected the decision. 3. Alternatively, the decision under review was protected by the privative clause in section 474 of the Migration Act 1958 (Cth) and was valid." 52 Counsel for the respondent submitted that absent any evidence that the appellant would have made different submissions to the Minister, or acted differently had he been aware of the aspects of the Issues Paper to which the primary judge referred, a finding that there had been a breach of the rules of natural justice could not be made. He submitted that these matters were not of such significance as to render the Minister's decision invalid. No "practical unfairness" had resulted from any failure on the part of the Department to inform the appellant of those matters. 53 Further, counsel for the respondent submitted that the matters referred to by the primary judge did not support any complaint of unfairness or prejudicial lack of balance. He contended that these matters were more akin to the factors of "pitch" and "balance", referred to by Gleeson CJ, Gummow and Heydon JJ in ex parte Palme. 54 Alternatively, counsel for the respondent contended that, even if there had been something "which might otherwise have been seen as [a] breach of the rules of natural justice", the breach was not sufficiently serious or manifest to invalidate the decision. He relied in support of that contention upon s 474 of the Migration Act. He contended, in effect, that some breaches of the requirements of natural justice do not render decisions void. He relied upon Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 in support of that contention.

consideration 55 It is clear from the primary judge's reasons for judgment that the appellant would have succeeded in his application for review but for the fact that the Minister provided a statement of reasons after the case had been argued. It is necessary to say something more about the circumstances under which that statement of reasons came to be provided. 56 As indicated earlier, when the matter came on for hearing before his Honour, one of the grounds of review was that the Minister had failed to provide reasons in breach of s 501G(1)(e). The Issues Paper, which included a Part E headed "Decision", enabled the Minister to delete whichever of four alternatives was not applicable. The Minister deleted the first three alternatives, and signed immediately below the fourth. When the appellant was notified of the Minister's decision on 12 November 2003, he was provided with a copy of the Issues Paper. That document was described as the Visa Cancellation Decision Record. 57 The decision to cancel the appellant's visa was made on 15 October 2002. In accordance with what had been long standing practice, the Issues Paper was regarded as a sufficient statement of reasons to satisfy the requirements of s 501G(1)(e). However, in W157/00A, which was decided on 4 September 2002, a Full Court of this Court held that an issues paper of the type used in this case did not satisfy the requirements of that section. The Minister was obliged to provide reasons, although by virtue of s 501G(4), his failure to do so would not invalidate the decision. 58 There has been no explanation proffered to this Court as to why, notwithstanding the decision in W157/00A, the Minister did not comply with the requirements of the Act. It is possible, though unlikely, that neither he nor his advisors had been made aware of that decision. It is also possible that those advising the Minister simply assumed that, notwithstanding that decision, reasons did not need to be provided. That was because the Act provided that a failure to give reasons did not invalidate the decision. It must be remembered that all of this occurred before the High Court decided Plaintiff S157/2002, in February 2003. The advisors may have taken the view that the Minister's decision was immune from judicial review, in any event, by reason of the then prevailing view of s 474. Be that as it may, the fact remains that the Minister did not provide reasons, as required by s 501G(1)(e). Moreover, that section required reasons to be given at the time of the decision. A failure to comply with that requirement could not, in any meaningful sense, be overcome by the provision of a later statement of reasons. 59 It was against this background that when the matter came on for hearing before the primary judge on 10 March 2003, his Honour directed the Minister to provide reasons. We were told by counsel for the respondent, who also appeared before the primary judge, that he had objected to his client being required to provide reasons, and certainly objected to having to provide them quickly. In the end, however, his Honour directed that the Minister provide a statement of reasons on or before 21 March 2003. The Minister duly complied with that direction. 60 The position taken by counsel who appeared for the appellant below is less clear. It seems that he objected to the Minister being given the opportunity to provide a statement of reasons, but largely because of the delay and consequential prejudice that this would cause his client. We were told that, in the end, the statement of reasons was received without objection. Indeed, we were told that it had been admitted by consent. The fact that a statement of reasons provided by a decision-maker belatedly, and after there had been full argument on an application for judicial review, would have been inadmissible in any ordinary forensic contest seems to have been ignored. 61 It is likely that his Honour's decision to direct the Minister to provide reasons was influenced by the decision of the Full Court in Ayan. That case held, in accordance with W157/00A, that an Issues Paper (there described as a "briefing paper") did not meet the requirement of s 501G(1)(e) that reasons for the decision be set out in the written notice provided to the person whose visa had been cancelled. The briefing paper did not explain why the Minister exercised the discretion in the way he did, what factors he took into account, and what weight he gave to various matters. The mere fact that the Minister chose one of four available alternatives did not illuminate the reasons for that choice. 62 In Ayan, a majority of the Court, Allsop and Jacobson JJ, concluded that a direction that the Minister provide a statement of reasons for his decision was an order "in relation to matters in which [the Court] has jurisdiction" for the purposes of s 23 of the Federal Court of Australia Act 1976 (Cth). More importantly, their Honours held that it was appropriate for the Full Court to exercise its discretion to make the order sought. Sackville J dissented. 63 Although the primary judge did not cite Ayan in his reasons for judgment, it is quite possible that he followed the view of the majority in that case. Given that counsel for the respondent in the present case had also appeared in Ayan, which was decided several weeks earlier, it would have been surprising if his Honour's attention was not drawn to that case. 64 Although the approach taken by the majority in Ayan was thought to be appropriate for the circumstances of that case, we must say that if that course were to be followed generally real difficulties could arise. As indicated earlier, s 501G(1)(e) requires the Minister to provide reasons at the time the decision is notified. There are obviously dangers in relying upon any statement of reasons, produced long after a decision is taken, as accurately reflecting the matters that most influenced the decision-maker at the time the decision was made.

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.

Associate: Dated: 19 December 2003 Counsel for the Applicant: Mr G. Kennett and Ms J. Kinslor

Solicitors for the Applicant: Christopher Levingston & Associates

Counsel for the Respondent: Mr G. Johnson and Mr A. Crockett

Solicitor for the Respondent: Australian Government Solicitor