Application of the principles to the facts
83 The Notice sent to the applicant on 10 August 2016 informed him that consideration would be given to whether he should be refused a protection visa on character grounds. It said that the Department held information which suggested that the applicant may not pass the character test by virtue of ss 501(6)(d)(i) and (ii) and provided the applicant with a raft of material including the Client Incident Report.
84 On 11 August 2016 the applicant's solicitor responded to the Notice and provided evidence and submissions, doing so on the assumption that the Minister's concern related to the incidents in the Client Incident Report classified as "major". Those submissions were addressed to ss 501(6)(d)(i) and (ii), which relate to any risk that the applicant will engage in criminal conduct or harass, molest, intimidate or stalk another person in Australia, because those provisions were the stated basis for possible visa refusal at the time. They were not directed to the requirements of s 501(6)(d)(v) as that provision had not yet been raised, although it can be seen that there is some crossover between the requirements under the provisions.
85 The Further Notice sent to the applicant on 15 September 2016 informed him that s 501(6)(d)(v) was also deemed relevant to the Minister's consideration, and attached the Updated Client Incident Report which contained just one further incident, classified as "minor".
86 The Client Incident Report and the Updated Client Incident Report are "relevant information" within the meaning of s 57(1). The Minister was accordingly obliged under s 57(2)(b) to ensure, as far as is reasonably practicable, that the applicant understood why those reports were relevant to the Minister's consideration.
87 On 19 September 2016 the applicant requested particulars as to "what danger the applicant is said to present, to whom, and what evidence is being relied on to support the potential risk" that the applicant may pose to the Australian community. To some extent, that indicated that the applicant was unsure as to how the information that had been provided to him was relevant to the Minister's consideration.
88 The Department responded on 20 September 2016 but did not substantively address the request for particulars. Relevantly, the Department said:
The consideration of [the applicant's] case under s 501 takes into account all the documents and information we have provided, as well as the representations we have received from you in response.
Subparagraph 501(6)(d)(v) was also included to advise you that it may be relevant in the Minister determining if [the applicant] fails the character test. Please note there are no findings at this time, and the submission that will be presented to the Minister, as the decision maker, will also leave it open to him to find that [the applicant] does not fail the character test. The department has not formed a preliminary view that refusal under that ground is open to the Minister.
Accordingly, at this time, there are no other particulars or information that we have not already presented to your office, to address [the applicant's] liability under subparagraph s 501(6)(d)(v).
It remains open to you to provide further comment on subparagraph s 501(6)(d)(v), or any other matter you find relevant to [the applicant].
89 The applicant's solicitors responded the same day, noting that the Notice had been amended to include s 501(6)(d)(v) as a new consideration, and said:
We note that on 19 September 2016 we requested particulars to how it is said that the applicant meets the new consideration which was introduced at such a late stage, but no further particulars were provided.
The applicant's solicitors also said
The correspondence dated 15 September 2016 contained an updated "Client Incident Report" which contained one additional "minor incident", whereby the applicant was allegedly abusive to the officer. We note that there is no context given to the allegation, and we do not have instructions about this incident".
That letter again indicated that the applicant was uncertain, at least to an extent, as to why the Client Incident Report and Updated Client Incident Report were relevant.
90 The Minister contends that the explanations given on 15 September and 20 September 2016 are sufficient to discharge his obligations under s 57(2)(b). He argues that those letters informed the applicant that the Client Incident Reports indicated a concern that, if the applicant was allowed to remain in Australia, there was a risk that he would represent a danger to the Australian community or to a segment of that community.
91 What must be provided to satisfy the requirements of s 57(2)(b) depends upon a range of things including the nature of the information provided to the visa applicant and, in the present case, the specifications of s 501(6)(d)(v).
92 The Minister argues that the relevance of each incident in the Client Incident Reports was clear when considered in light of the character assessment criteria in s 501(6)(d)(v) and that the nature of each incident, including possession of a concealed knife and aggressive and abusive behaviour directed towards detention officers, meant that no further explanation was required. For example, the Minister contends that the 7 October 2014 incident required no further explanation as it was self-evidently relevant to the character assessment. The Minister also contends that the incidents which recorded pre-planned uses of force through the use of mechanical restraints on the applicant to facilitate high-risk escorts were self-evidently not relevant. He submits that it was made "tolerably clear" to the applicant which incidents were relevant to s 501(6)(d)(v) and which were not. In this regard the Minister argues that the applicant's submissions and further submissions addressed all the matters that the Minister took into consideration, which is evidence that the relevance of the information was obvious from the information provided.
93 The Minister argues that he is not required to provide the level of detailed information which the applicant contends. He relies on SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (SZBYR) at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) where their Honours said that the Refugee Review Tribunal was not required to provide a visa applicant with details of its disbelief of the appellant's evidence and cited, with approval, VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123 (VAF) at [24]. In that case Finn and Stone JJ held that the "information" required to be provided to the applicant:
…does not encompass the Tribunal's subjective appraisals, thought processes or determinations… nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc.
94 The Minister's contentions are not without force, but I am satisfied on the balance of probabilities that the Minister failed to comply with his obligation under s 57(2)(b). That failure constitutes jurisdictional error.
95 In Saeed at [20], their Honours said:
The requirements of s 57(1)(a) and (2)(b) are similar to those referred to by Mason J. When the Minister considers that certain information would be the reason, or part of the reason, for refusing to grant a visa, the Minister is to provide particulars of it in order that the visa applicant understands its relevance. The requirement in s 57(2)(b), that the Minister ensure, as far as reasonably practicable, that the visa applicant understands why certain information is relevant, may go further. It would require that the importance of the information and its potential impact upon the applicant's case for a visa be identified and the information be communicated in a way which promotes that understanding as far as is possible.
96 In SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 at [36], in discussing the equivalent disclosure obligations of the Refugee Review Tribunal, Rares J said:
It required the tribunal to ensure, as far as reasonably practical, that it identified to the appellant why he should have understood the information was relevant to the review. This is necessary to avoid an applicant for review being left to choose between uncertain inferences that might otherwise be available in the notification.
See also SZMTJ at [44].
97 The Client Incident Reports referred to 46 separate incidents classified as either "minor" or "major". Neither the Notice or Further Notice indicated to the applicant which of the 46 incidents were most relevant to the Minister's consideration of his visa application. I accept that it must have been clear to the applicant that the 7 October 2014 incident was relevant, but the Client Incident Reports raised many further alleged incidents, including many that were classified as minor.
98 Contrary to the Minister's submissions, I do not accept that it was made "tolerably clear" to the applicant which incidents were relevant to the Minister's consideration under s 501(6)(d)(v) and which were not. The applicant sought particulars of what evidence was being relied on and the Department did not provide a substantive response. Sensibly, the applicant's submissions were addressed to the "major" incidents, but that indicates how the applicant was made to draw "uncertain inferences". In fact, the Issues Paper raised some "minor" incidents as relevant to the Minister's consideration (e.g. some alleged incidents of abusive or aggressive behaviour towards detention officers) and those incidents formed part of the Minister's reasons for refusal, but it did not raise some other "major" incidents as relevant (e.g. the pre-planned use of force by detention officers) and those incidents were not part of the Minister's reasons.
99 That the Department was in a position to identify the potential relevance of the incidents is clear from the Issues Paper. It identified the following relevant matters:
(a) the number of incidents involving the applicant exhibiting abusive and aggressive behaviour towards detention officers and being found in possession of a concealed knife;
(b) incidents involving the applicant that included contraband found, aggressive or abusive behaviour, assaults, and self-harm (both actual and threatened) as well as being found in possession of a concealed knife; and
(c) that the alleged assaults and threats made against detention centre staff and other detainees is consistent with the applicant's conduct prior to his detention.
It informed the Minister that on the basis of those (and various other) matters it was open to the Minister to conclude that the applicant "presents a likelihood of repeating threats of harm", and that the harm that could result is so serious that any risk of it occurring in the future is unacceptable.
100 The Minister was accordingly in a position to ensure, as far as was reasonably practicable, that the applicant understood why the Client Incident Reports were relevant to the Minister's consideration. The obligation to do so was not discharged merely by providing the applicant with a list of 46 incidents, some relevant and some not, including some "major" incidents which were not relevant and some "minor" incidents which were, and presuming the applicant would deduce which were most relevant to the pending decision by reference to the parameters of s 501(6)(d)(v). This is particularly so when the applicant requested relevant particulars and was not provided them. The Minister's obligation can reasonably be understood to extend to identifying which of the 46 incidents were of most relevance and why, such that the applicant's solicitors could have concentrated their energies on making submissions relevant to those matters.
101 The Minister was obliged to ensure that the importance of the information and its potential impact upon the applicant's visa application be identified and the information communicated in a way which promoted that understanding as far as is possible: Saeed at [20]. By the Department providing the Client Incident Reports in the form it did and without identifying which of the 46 incidents were relevant and why, the Minister fell short of his obligation under s 57(2)(b). I do not accept that requiring the provision of information at that level is contrary to the decisions in SZBYR or VAF.
102 The Minister further contends that the applicant did not explain what the identification of the relevant incidents in the Client Incident Reports would or could have elicited by way of further submissions by the applicant, or how the applicant was prejudiced by the alleged breach. Essentially, the Minister contended that the Court should not be satisfied that the alleged breach would have made a difference to the submissions advanced.
103 It is established that an applicant should not be denied relief on the basis that the error was insignificant if he or she has been deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of the Act: Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340 at [64] (Sackville J). The applicant contends that he has been deprived the possibility of a successful outcome because, if he had been informed by the Minister that his alleged abusive and aggressive behaviour in detention was of particular relevance, he could have filed a psychiatric report to explain his behaviour as a manifestation of a significant mental illness (related to his ongoing detention). I accept that this may have meant that the Minister gave less weight to those incidents and I do not accept the Minister's contention in this regard.