Donnelly v Minister for Immigration and Border Protection

Background 4 The applicant is a citizen of the United Kingdom who first arrived in Australia with his parents at the age of 12 in June 1974. He departed on 26 October 1974 and did not return until 5 October 1979, aged 17. He subsequently departed Australia twice: for three months in 1984 and for eight months in 1986. He was voluntarily deported to the United Kingdom in 2017, and has pursued this application from there. 5 The applicant has a long criminal history in Australia, with convictions in New South Wales, Victoria, Western Australia, the Northern Territory and Queensland. Those convictions included two for assault involving violence that resulted in sentences of imprisonment. 6 In 1983 the applicant was convicted of manslaughter in the Northern Territory. The applicant discharged a rifle in a car and the driver was killed. The Court stated that the offence occurred in circumstances involving 'gross negligence' rather than intent, and he was sentenced to 12 months imprisonment, to be released after two months on conditions. 7 In 1993 the applicant applied for Australian citizenship. Throughout 1993 and 1994 the applicant was sent correspondence telling him that his application for citizenship had been approved, but that he would not be a citizen until he attended a citizenship ceremony, and that if he failed to attend a ceremony the approval would be revoked. He did not attend a ceremony and a letter was sent to him on 26 April 1995 informing him that the citizenship approval had been revoked. 8 On 28 April 1995 the applicant was convicted by jury in the Supreme Court of Western Australia of one count of aggravated sexual penetration without consent, one count of sexual penetration without consent, one count of unlawful detention, and one count of unlawful and indecent assault. The applicant was sentenced to 6 years imprisonment for the first charge, 4 years concurrent imprisonment for the second charge, 2 years concurrent imprisonment for the third charge, and 6 months cumulative imprisonment for the fourth charge. The circumstances involved driving the victim to a remote location and threatening the victim with a wheel brace until the victim submitted to certain conduct. 9 According to a Department of Corrective Services Immigration Report of 30 June 2015, on 8 December 1997 the applicant was released on parole. This parole was cancelled on 16 October 1998 because the applicant failed to co-operate with a Sex Offender Maintenance Program, and because he did not advise the relevant authorities of a change of address. The applicant relocated to Queensland in 1998. 10 On 10 May 2012 the applicant was extradited from Queensland and returned to custody in Western Australia to serve 1,209 days imprisonment. 11 On 19 August 2015, and while still imprisoned following cancellation of parole, a delegate of the Minister cancelled the applicant's visa under s 501(3A) of the Act. On 31 August 2015 he was released from criminal custody and detained at the Christmas Island Detention Centre. 12 In accordance with s 501CA of the Act, the applicant was invited to make representations about the original decision to cancel his visa, and did so, initially by a 'Request for Revocation of a Mandatory Visa Cancellation' dated 24 August 2015 (revocation request) (the representations are addressed in full below). 13 Prior to any decision on the applicant's revocation request, the citizenship issue arose again. On about 4 December 2015 an Assistant Director of Citizenship Operations from the Department of Immigration and Border Protection (DIBP) (Ms P) wrote to the applicant informing him that the 26 April 1995 decision to revoke his citizenship application had been invalid, meaning that the citizenship approval (referred to as a citizenship certificate) remained valid, but that it was open to cancel the approval where the person is not a permanent resident or is not of good character pursuant to s 25(2) of the Australian Citizenship Act 2007 (Cth). Ms P invited submissions from the applicant as to why the citizenship approval ought not be cancelled. On 9 June 2016 the applicant was informed that his citizenship application was cancelled on the basis that he was no longer a permanent resident and was not a person of good character. 14 On 11 August 2016 the Minister made a decision not to exercise his power to revoke the original visa cancellation decision under s 501CA(4). The Minister found that the applicant failed the character test and he was not satisfied that there was another reason to revoke the cancellation. It is clear that at the time of the Minister's decision not to revoke the visa cancellation decision the applicant was not and had never been an Australian citizen. 15 On or about 22 August 2016 the Minister was informed that the applicant had applied to the Administrative Appeals Tribunal for review of the citizenship application decision. 16 On 23 September 2016 the applicant filed an application in the Federal Circuit Court seeking review of the Minister's non-revocation decision relating to his visa. That application was subsequently transferred to this Court.

Extension of time 17 The applicant requires an extension of time within which to seek judicial review of the Minister's decision because his application was filed outside the 35 day time limit imposed by s 477A(1) of the Act (based on the date of filing in the Federal Circuit Court of Australia). Under s 477A(2), that time limit may be extended in the interests of justice. The Court considers among other things the applicant's reasons for delay and whether the application, if an extension of time were granted, would have any reasonable prospect of success: MZYYO v Minister for Immigration and Citizenship [2013] FCA 49; (2013) 214 FCR 68 at [30] (applying Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349). 18 The applicant said that he requires an extension of time because of the delay since his 1995 conviction and the need to access information held by Commonwealth and State government agencies, because he suffers from ADHD and other non-medicated mental health conditions and because he required time to access funds to pay for applications under freedom of information legislation. The Minister opposed the extension of time submitting that these reasons do not explain why the application was filed eight days out of time. Taking into account the short period of extension required, I consider the explanation for the delay, although generalised, to be sufficient in the circumstances. 19 The principal reason for granting or refusing an extension of time in this case is the apparent merit, or lack of merit, of the grounds relied upon. In Afu v Minister for Home Affairs [2018] FCA 1311 Bromwich J said at [3]: The merit threshold for the grant of an extension of time is not especially onerous. It will seldom be in the interests of justice to grant an extension of time where there is little or no prospect of success, not least because of the additional resources that may need to be expended. However, unless the grounds are hopeless on an impressionistic reading of them that is without the benefit of detailed argument, such that it can be confidently concluded that the grounds must fail, the better approach may be to grant the extension of time and then consider the grounds properly and with the benefit of full argument: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62] and [66]. In this case, an impressionistic approach to the proposed grounds of review does not warrant the epithet of "hopeless". The Court has had the benefit of full argument on those grounds, such that there is no question of any additional resources being expended by the grant of an extension of time. It follows that the appropriate course is to grant the extension of time and consider the grounds advanced in full. 20 In this case, it has been necessary to distil the grounds of review from the applicant's application and affidavits, and that task itself has required detailed consideration. It has not been possible to confidently form an impressionistic view as to the merits, let alone a view that they are hopeless. Having had the benefit of full argument on the applicant's claims, I have decided to adopt the approach in Afu. The appropriate course in this case is to grant the extension of time and consider the grounds advanced in full.

Applicant's representations to the Minister 21 The applicant set out certain representations in his revocation request, stating that the 1995 conviction referred to by the DIBP for the purpose of the character test was obtained in circumstances involving a denial of natural justice, and that the applicant was unable to obtain documents to appeal the decision and that he was not permitted to appeal because of the conduct of his then barrister. The applicant referred to an earlier letter to the DIBP. In that earlier letter (dated 7 May 2015), the applicant, in addition to raising concerns about the conduct of his 1995 criminal trial, referred to a 'grant of Australian Citizenship' of July 1994 and acknowledged that he had not signed an affirmation (which in context I take to be a reference to the failure to attend a citizenship ceremony and take the necessary pledge). He stated that in the subsequent years when he was in custody, then released on parole and then returned to custody, he had forgotten about the citizenship issue. He asked in the letter whether he could sign an affirmation and acquire Australian citizenship. He followed up his question about citizenship in a short letter to the DIBP of 14 June 2015. 22 The applicant made a statutory declaration on 8 January 2016 in which he complained about the revocation of the citizenship approval, saying that it had been revoked without regard to the circumstances of his 1995 criminal conviction, circumstances that the applicant said involved bias on the part of the trial judge and police, malpractice on the part of his barrister and corrupt conduct of the police in returning the applicant to Western Australia in 2012. The applicant named certain persons as being involved, including the former Minister for Police, certain members of the police force, the victim of the 1995 offences and others. 23 On 28 February 2016 the applicant wrote to the DIBP National Character Consideration Centre (NCCC) enclosing a copy of the statutory declaration, and stating that he had been denied procedural fairness because of the conduct of the persons named in that statutory declaration and his convictions were 'corrupt'. 24 On 23 May 2016 the applicant wrote again to the NCCC in response to a request for information, stating that he relied upon the statutory declaration for the purpose of the revocation application and offering to desist from his claims of corruption in exchange for no adverse decision as to his citizenship status or on his revocation application. 25 On 7 June 2016, the applicant's case manager at the Christmas Island Immigration Detention Centre (Visa and Citizenship Services Group) met with the applicant in relation to his revocation request. The case manager sent an email of that date reporting on the meeting to the NCCC. The case manager refers in the email to her meeting with the applicant in which she discussed with him the provision of further personal information for the purpose of the revocation request. According to the email, during the meeting the applicant indicated he did not wish to provide further details. He told the case manager that Ms P has 'all his relevant details' and he is not required to answer questions on the form and 'he is not going to ever do so'. The case manager wrote: I explained if that is his fixed position, then the decision-maker will have to base their decision on what is before them. Mr DONNELLY advised that he understands this and that is what he expects. I'm sorry the CM service at CI IDC could not be more helpful in obtaining the information sought. 26 On 8 June 2016 the NCCC wrote to the applicant inviting him to comment on the email written by the case manager, but there is no evidence of any response. 27 According to the 'submission for decision' provided by the DIBP to the Minister prior to his decision, all of the above documents were provided to the Minister.

The Minister's decision 28 The Minister commenced his decision by considering whether the applicant passed the character test. The Minister summarised the 1995 offences and convictions before stating: 7. I have considered the representations made by Mr DONNELLY and the documents he has submitted in support of his representations. 8. In the representations that Mr DONNELLY submitted, he alleges impropriety and bias in the conduct of the legal proceedings against him and submits that his conviction should not stand. However I find that he was convicted after due legal process and that his representations do not throw doubt on the accuracy or currency of information contained in the National Police Certificate dated 20 July 2015 or the Sentencing Remarks on 28 April 1995, as I give more weight to these authoritative and judicial sources than to his unsubstantiated claims. 9. Accordingly, I am not satisfied that Mr DONNELLY passes the character test (as defined by section 501), with the result that s 501CA(4)(b)(i) of the Act is not met. 29 The Minister then considered whether there was another reason why the original decision should be revoked. He wrote: 11. … I assessed all of the information set out in the Issues Paper and attachments. In particular, I considered Mr DONNELLY's representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked. 12. In the representations/document submitted by or on his behalf, Mr DONNELLY has articulated reasons why he believes the original decision should be revoked. In summary, Mr DONNELLY has claimed that he was improperly convicted on 28 April 1995 and that his lawyer did not action his request to appeal the outcome of the hearing. 13. Mr DONNELLY has further claimed that he was granted Australian citizenship on 26 July 1994 but that before he could attend a ceremony, he was taken into remand. He stated that due to the stress of incarceration and the extreme hardship he has endured for the past 21 years he forgot about the citizenship grant. In his representations Mr DONNELLY has stated that he has been denied procedural fairness in relation to the circumstances surrounding the revocation of his Australian Citizenship Certificate, and that a consequence of this is the revocation of his permanent resident visa. Mr DONNELLY also indicated that from his recollection in 1997, the department had stated that deportation was not a consideration. 14. Mr DONNELLY expressed his belief that the 'department is making a decision based on that denial of natural justice'. In his correspondence Mr DONNELLY has asked that, given these 'extenuating circumstances', he be allowed 'to sign the affirmation and acquire the legal status of an Australian Citizen'; which would in effect remove any issue of revocation of his visa cancellation. 30 The Minister then considered the best interests of minor children, noting that the applicant had not declared any children. The Minister then considered the strength, nature and duration of the applicant's ties to Australia and the extent of impediments he might face if removed. The Minister noted that the applicant did not provide any information regarding his family or social ties to Australia or advance any reasons as to why he should not be returned to the United Kingdom. 31 Regardless, the Minister noted the applicant's claims as to suffering severe clinical depression and that he is in receipt of a disability pension. The Minister stated that as a citizen of the United Kingdom the applicant would be entitled to access the same services as those available to other citizens of the United Kingdom, including social, medical and welfare services which the Minister considered were adequate to meet his needs. The Minister concluded that the applicant would suffer some emotional and psychological hardship in settling in the United Kingdom but that he would be capable of doing so in time. 32 The Minister then considered the protection of the Australian community. He commenced by stating: 27. In coming to my decision about whether or not there is another reason why the original decision should be revoked I have had regard to the consideration of the protection of the Australian community, noting in particular Mr DONNELLY's statements. I considered the Government's commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. I also took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law abiding. 33 The Minister then considered the applicant's criminal conduct. He noted that violent and sexual offences are generally very serious before setting out the applicant's convictions and the circumstances of those offences. 34 As to the 1995 conviction, the Minister stated: 31. While noting that Mr DONNELLY in effect denies these offences, he has been convicted of them by due legal process and unless and until further due legal process overturns the primary verdict, I consider it would be inappropriate for me to go behind that fact solely on the basis of Mr DONNELLY's currently unsubstantiated claims. Accordingly I find that he committed the above offences in the manner described by the court. 35 The Minister then considered the risk the applicant poses to the Australian community. He noted that the applicant provided no information concerning mitigating factors, and that the applicant's Immigration Report noted that the applicant evinced difficulty taking ownership of his criminal behaviour. 36 As to the applicant's release on parole, the Minister wrote: 39. I note that following Mr DONNELLY's release to parole on 8 December 1997 his parole was cancelled on 16 October 1998 for his failure to co-operate with the Sex Offender Maintenance Program and for failure to advise his change of address. I note also that Mr DONNELLY's Statutory Declaration dated 8 January 2016 has stated that his parole order was revoked in 1997 after he repeated 'the Crown's evidence which I was convicted with to the parole officer', who revoked his parole, stating that he 'was uncooperative'. I find that this statement by Mr DONNELLY is contradicted by the official information as to the reasons for the cancellation of his parole in 1998 and supports the view expressed in the Immigration Report that he has an ongoing limited insight into his actions. 40. I note that Mr DONNELLY has some lengthy periods when he did not re-offend, which may be perceived as mitigating his risk of recidivism. However, I give this less weight than I otherwise would as I note that during the period from 1998 until 2005 and from 2006 until he was located in Queensland he was in breach of the parole conditions placed on him on 8 December 1997. … 43. Remorse may usually be considered an important part of the rehabilitation process. From the sentencing remarks on 28 April 1995 it is evident that His Honour found Mr DONNELLY 'entirely without remorse and ... unrepentant' for his criminal actions. Despite being convicted by a jury, Mr DONNELLY continues to maintain that he was improperly convicted because of personal bias by the judge. I find this position to be indicative that Mr DONNELLY continues to either lack remorse for his offending or to fail to comprehend his wrong-doing. Either way, I am of the view that it raises concerns in regard to his progress to rehabilitation and in relation to his risk of recidivism. 44. Based on all of the information above, I find that there remains some ongoing likelihood that Mr DONNELLY will engage in further serious criminal conduct in the future. While his periods without further offending and his advancing age tend to reduce this likelihood, I cannot rule out further offending entirely and if Mr DONNELLY were to engage in any offences similar to some of his past violent or sexual offences, this could result in significant physical, and/or emotional harm to a member or members of the Australian community. This constitutes a serious risk. 37 Based on this information, the Minister found that there remained some ongoing likelihood that the applicant would engage in serious criminal conduct in the future, and that this constituted a serious risk to the Australian community. 38 In his concluding remarks, the Minister relevantly wrote: 46 I concluded Mr DONNELLY has made representations in accordance with the invitation. 47. I am not satisfied that Mr DONNELLY passes the character test (as defined by section 501). 48. In considering whether, in light of Mr DONNELLY's representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I have considered the length of time Mr DONNELLY has made a positive contribution to the Australian community. 49. On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr DONNELLY, namely sexual penetration without consent - aggravated, sexual penetration without consent, deprivation of liberty and indecent assault, offences which are of a violent and sexual nature. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. 50. Further, I find that the Australian community could be exposed to great harm should Mr DONNELLY reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr DONNELLY. Given the offences committed by Mr DONNELLY, I am of the view that the Australian community would expect that Mr DONNELLY's visa would remain cancelled and I would not revoke the mandatory cancellation decision. 51. I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr DONNELLY, than I otherwise would, because he has lived in Australia for most of his life. 52. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr DONNELLY represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the considerations as described above. These include his lengthy residence and the hardship Mr DONNELLY will endure in the event the original decision is not revoked. 39 The Minister then stated that having given full regard to those matters, he was not satisfied that there was another reason why the original decision to cancel the applicant's visa should be revoked.

Application and grounds 40 The amended application spans some 63 paragraphs in which the applicant makes various allegations against the State of Western Australia, the Department of Public Prosecutions, the Western Australian police, various public figures and other individuals. He also asserts that the Minister's decision was contrary to law in various ways. 41 The applicant relies on two affidavits which read primarily as submissions (filed 13 March 2017 and 20 December 2017 respectively). In one of those affidavits, the applicant states that the Minister failed to have regard to papers that have been filed in the Tribunal proceedings. In response, the Minister filed an affidavit that attaches those documents (T documents). Those affidavits and the Court Book comprised the evidence relied upon for the hearing. 42 The applicant appears to have based his application on the matters that are listed in s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), rather than by addressing the matters relevant to an application to this Court for review of the Minister's decision. The applicant also raised various matters during the hearings before me. Having regard to the fact that the applicant is self-represented, the Minister's counsel properly addressed those matters referred to in the application and affidavits that might be seen as allegations of jurisdictional error, and I have also had regard to such matters. 43 The following alleged grounds of jurisdictional error can be distilled from the applicant's application and affidavits: (1) The Minister's decision was made in the absence of a jurisdictional fact, as the custodial sentence of 28 April 1995 was a miscarriage of justice caused by the trial judge being a personal friend of a relative of the victim's de facto spouse, by alleged improper conduct of the former Minister for Police and the improper influence of others related to those persons. Accordingly, it was said, the Minister's power was exercised in a way that constitutes an abuse of power and which was induced or affected by fraud. (2) The Minister made his decision in accordance with a rule or policy without regard to the merits of the particular case. The applicant alleges that if the Minister was diligent in his considerations, then he would have been aware of a Supreme Court judgment against the former Police Minister in a civil matter in which fraudulent breach of trust on the former Police Minister's part was made out. (3) The Minister's decision was made in bad faith, as the Minister made his decision without giving the applicant a valid opportunity to be heard. This was because the applicant's documents were destroyed during a riot at Christmas Island Immigration Detention Centre and the applicant was unable to otherwise provide them. This meant that the documents were not before the Minister when he made his decision. Further, the documents had been provided to the DIBP in that they were in the possession of the NCCC's case officer and later the Tribunal, and so the Minister should have obtained the documents. Additionally, the Applicant asserts that he was denied a legitimate opportunity to be heard because International Health and Medical Services refused to provide the applicant with the necessary medication for his psychological and psychiatric disorders. (4) The Minister failed to take into account a relevant consideration, being s 5B of the Sentence Administration Act 2003 (WA), which provides that the Parole Board should regard the safety of the community as paramount when considering whether to grant parole. As the applicant was granted parole, the Parole Board did not consider him a threat to the safety of the community, and the Minister should have taken this evaluation into consideration. (5) The exercise of the Minister's power was unreasonable, as the Minister made his decision some 21 years after the relevant offence was committed and in circumstances where, had the parole breach warrant been executed in a timely manner by the WA Police, the applicant would have completed serving his sentence and s 501(3A) of the Act would not have applied to him. (6) The Minister took into account an irrelevant consideration, being a finding that the right to enter or remain in Australia is a 'privilege' (a ground based on Tesic). (7) The Minister exercised the jurisdiction of an appellate court contrary to Chapter III of the Constitution (a ground based on Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333).

Grounds 1 and 2 44 The applicant is clearly aggrieved about the circumstances of his 1995 conviction, a conviction based on a finding of guilt by a jury. In his affidavits the applicant related his claims of corruption, the steps he has taken over the years to ascertain information about police conduct, and the steps he has taken to formally complain about the barrister who appeared for him at trial and apparently advised him that any appeal from his conviction would have no prospect of success. He made allegations about the conduct of the victim and various witnesses, and alleged the trial was tainted by an alleged friendship between the trial judge and a person who had at one time been the State's Minister for Police (Mr Hill), a friendship that he said the police have refused to confirm or deny. He asserted that the Minister failed to take into account a matter that was easily ascertainable, being subsequent findings of fraud made against Mr Hill in a civil case (a case that related to conduct long after Mr Hill ceased being Minister for Police): Lois Nominees Pty Ltd v Hill [No 2] [2016] WASC 104. It is to be inferred that the applicant claims that such findings about Mr Hill undermine the conduct of the applicant's 1995 trial and subsequent conviction. 45 The Minister noted that the applicant denied the offences (see [31] of the Minister's reasons included at [34] above) but considered it would be inappropriate to go behind the convictions based on the applicant's unsubstantiated claims. The Minister's approach does not reveal any error of law. 46 Whilst I do not doubt the applicant's own conviction that there was something untoward in the conduct of his trial, an administrative decision-maker is generally not permitted to go behind a conviction or the essential acts giving rise to it. The authorities were reviewed by the Court of Appeal of the Supreme Court of Victoria (Beach, McLeish and Niall JJA) in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155, which expressed the applicable legal principles as follows: [42] …The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal's jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based. (citations omitted) 47 The authorities were also reviewed more recently by Bromberg J in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [41]-[86] and by Davies J in CFT15 v Minister for Immigration and Border Protection [2016] FCA 283. In CFT15, Davies J said: [20] … The Applicant's conviction was the foundation for the exercise of power under s 501 and, in the face of that conviction, the Minister was not obliged in the exercise of his discretion to go behind the conviction either to take into consideration, or give weight to, the Applicant's claim of innocence and the nature of the evidence upon which the Applicant was convicted: Bridges v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 456; [2001] FCA 1647, [43]-[45]; Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 180 at [9]. To the contrary the Minister was entitled to act upon the conviction which was upheld by the Court of Appeal and take into account at [17] as a matter bearing upon his exercise of discretion that according to authoritative opinions the Applicant has not gained insight into his offending or the impact of his offending on the victim. 48 The applicant's April 1995 convictions gave rise to his sentence of imprisonment that, following cancellation of his parole, resulted in his incarceration as at August 2015 when his visa was cancelled under s 501(3A) of the Act. The conviction in question was a precondition to the decision by the delegate under s 501(3A) of the Act and the exercise of the power by the Minister under s 501CA: see HZCP at [79]. 49 Accordingly, the Minister was not obliged to go behind the conviction and was entitled to act upon it as a matter bearing upon his exercise of discretion. 50 The fact that the Minister did not refer to Lois Nominees Pty Ltd v Hill does not assist the applicant for two reasons. First, the Minister was not obliged to go behind the criminal conviction for the reasons already given. Second, even if he were obliged to do so, the findings by the trial judge in Lois Nominees Pty Ltd v Hill were made in separate and unrelated civil proceedings which did not concern the applicant and related to trust payments. The findings do not impugn the applicant's criminal trial or his conviction by a jury. A consideration of those findings could have made no difference to the outcome of the Minister's determination and so was not material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [29]-[30]. Accordingly there was no jurisdictional error.

Ground 3 51 The applicant's amended application provides: 27. (d) an exercise of a discretionary power in bad faith: 28. The Minister chose to exercise his discretionary powers in the circumstances in which the 'opportunity to be heard' was conducted in the following circumstances: 29. (i) the abandonment of the Christmas Island Immigration Detention Centre during a riot on the 8th, 9th, and 10th of November 2015 in which documents I required to mitigate the matter before the Minister were destroyed or damaged whilst placed as 'in-trust' property with an agent of the Commonwealth, Serco; 30. (ii) The conduct of the Commonwealth of Australia in failing to exercise its jurisdiction on its sovereign territory to supress a riot and afford protection to myself as a person placed into protective custody upon arrival at Christmas Island; 31. (iii) The refusal by IHMS, the Commonwealth of Australia's health service provider refusing to provide the medication which I require for my diagnosed psychological and psychiatric disorders; … 52 This ground raises two issues: whether the applicant was denied procedural fairness as a result of the loss of his documents; and whether he was denied procedural fairness because of the absence of treatment for his medical conditions. There is no right to a hearing for the purpose of s 501CA, so the complaint is to be addressed against the backdrop of the procedural fairness requirements applicable to decisions made under s 501CA(4). 53 Procedural fairness requirements apply to decisions made under s 501CA(4): Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174 at [37]-[38]. 54 Relevant principles include the following: (a) under s 501CA(3), the Minister is obliged to give the person a copy of the original decision and the particulars of the relevant information, and to invite the person to make representations to the Minister about the revocation of the original decision. Once the invitation to make representations is extended to a visa holder, it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made. The Minister is not, in the absence of new information which is personal to the applicant and which might lead the Minister to disbelieve some critical information supplied by the applicant, obliged to afford the applicant a further opportunity to deal with particular issues: Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [42]; (b) the Minister is obliged to consider information provided by the applicant which relates to his or her personal circumstances and which is critical and relevant to the applicant's case. However, the onus is on the applicant to persuade the Minister that a revocation decision should be made. As Tracey J observed in Picard: [42] … Once the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made. (c) the Minister is not obliged to have regard to information that was not provided by or on behalf of the applicant in support of his revocation request: Koranteng v Minister for Immigration and Border Protection [2017] FCA 1008 at [45]. 55 I also note that there may be scenarios where to place upon a person making representations the sole responsibility for putting before the Minister factual matters of relevance to the submission advanced might deny a real opportunity to respond to the invitation to make representations, for example, where a consideration is totally beyond the applicant's control: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [69]. Any failure on the part of the Minister to obtain factual information will not amount to jurisdictional error if the failure was not material or could not have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [38], [44]-[45].

The applicant's documents 56 In his affidavit sworn 19 December 2017 the applicant said that his documents were damaged or destroyed in the November 2015 riots on Christmas Island but that serviceable copies of the documents were in the possession and control of the Minister in that he had provided them to Ms P in the Citizenship branch of the DIBP. The applicant said those copy documents were contained in the T documents. It is apparent from the T documents that on 22 December 2015 the applicant sent an email to Ms P attaching a large number of documents that pre-date the riots. Although he provided those attachments to Ms P by email, he did not provide them to the designated email address, mail address or fax numbers provided to him on 19 August 2015 for the purpose of responding to the invitation to make representations in support of his revocation request. 57 Why he did not provide those documents at the time of his revocation request (24 August 2015) or subsequently is not explained, save that he says that documents were stored on a USB which was taken from him after the riots, and that (according to the 7 June 2016 email) he told his case manager that he had provided his details to Ms P. Those matters do not suggest he was not able to provide the documents earlier as part of his representations. However, I will address the applicant's submission by reference to the nature of the documents, whether their production to the Minister would have made any practical difference to the outcome of the revocation request and the extent of the Minister's obligation to make inquiries. 58 There is some overlap between the documents provided by the applicant in support of his revocation request and those provided in the T documents (for example, the applicant's letters of 7 May 2016 and 14 June 2016 and the statutory declaration of 8 January 2016 appear in both). Counsel for the Minister accepted that the T documents were otherwise not before the Minister for the purpose of the revocation request. 59 The documents provided to Ms P that were contained in the T documents comprise communications to or from Legal Aid, the Office of the Information Commissioner, the Corruption and Crime Commissioner, the Ombudsman Western Australia, the Department of the Attorney General, the Prisoners Review Board (the body that deals with parole), the Attorney General of Western Australia, senior counsel from the Western Australian Bar, Edith Cowan University (Criminal Justice Review Project), the Department of Public Prosecutions, the Commonwealth Attorney General's office, the Australian Federal Police, the Legal Profession Complaints Committee; the Australian Electoral Commission; a Freedom of Information officer of the DIBP (including a bundle of notes and correspondence about the applicant's citizenship application, the initial approval, the requirement to attend a citizenship ceremony and the revocation of the initial approval), the Australian Crime Commission, the Commonwealth Ombudsman, the Department of Corrective Services 'IMP review', the DIBP (relating to the citizenship file), the Federal Court Registry and the 'Australian Immigration and Citizenship Law Advisors'. 60 The Minister submitted that having regard to the documents provided to Ms P, it is apparent that nothing in those documents could have made a difference to the Minister's decision and so failure to have regard to them did not involve jurisdictional error. 61 That submission relies on principles as to the materiality of any alleged denial of procedural fairness. For a breach of the obligation of procedural fairness to constitute jurisdictional error, the breach must give rise to a 'practical injustice' in that it must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision: SZMTA at [38], [44]-[45]. 62 The correspondence relates primarily to attempts by the applicant to challenge the 1995 conviction. The applicant seeks information (including forensics information) relating to his conviction and seeks to complain about all of those persons involved in his conviction. Much of the correspondence comprises repeated ventilation of the applicant's concerns as to corruption and bias allegedly involved in his conviction. The Minister was well aware of the applicant's complaints that his conviction was secured following a trial that the applicant asserts was tainted by bias and corruption but considered it would be inappropriate to go behind the conviction. This is apparent from the Minister's statements to the effect that the applicant had been convicted 'by due legal process and it would be inappropriate for [him] to go behind that fact solely on the basis of Mr Donnelly's currently unsubstantiated claims' (at [31] of his reasons) and that the Minister gave more weight to the 'authoritative and judicial sources' of his National Police Certificate and the sentencing remarks than to the applicant's unsubstantiated claims (at [8]). Additionally, the Minister makes reference (at [43]) to the fact that the applicant was convicted by a jury, in contrast with the applicant's repeated stance that his conviction was due to personal bias of the judge. 63 For the reasons already given, there was no error in the Minister's finding that it would be inappropriate for him to go behind the conviction. Regardless, the various communications do not substantiate the Applicant's claims about his conviction: to the extent they relate to his conviction, most comprise correspondence in which the applicant asserts the same complaints about his conviction as were alleged in his representations to the Minister. I accept the Minister's submission that the additional documents raising and repeating the complaints about the applicant's conviction could not have affected the Minister's decision and failure to consider them did not comprise jurisdictional error. 64 Other parts of the communications comprise complaints by the applicant as to the fact that he was extradited in 2012 and seek information from the authorities as to the legal obligations on a Western Australian police officer to execute a 'return to prison order'. The communications include a response from the Attorney General in which it is explained that arrest warrants issued by the Parole Board can be executed outside of Western Australia, but such a step was not always undertaken and they could be executed upon return to Western Australia. The letter states that there is no duty which requires public service employees to secure the execution of such a warrant. This information could be said to relate to the matters raised by ground 5 below but it does not substantiate any allegations made by the applicant or explain why the police did not execute the warrant in 2012. Accordingly, any failure by the Minister to consider those communications could not have made a difference to the Minister's decision, was not material to the outcome and did not involve jurisdictional error. 65 The other matter raised by the communications was that of the original revocation of the citizenship approval in circumstances where the applicant claimed to not know of the revocation and his assertion that his wrongful conviction denied him the opportunity to attend a ceremony and obtain citizenship. This matter is dealt with separately below. 66 Regardless of the content of the T documents, the Minister's decision on the revocation request was made prior to the date of the notice of application for review of the citizenship revocation decision sent to the Minister by the Tribunal. The applicant does not explain what other documents within the T documents should have been considered by the Minister, how they should have come to the Minister's attention for the purpose of the revocation request or how they were in any event relevant. The Minister submitted that only one of those documents may potentially have been of any relevance to a request for revocation, being a statutory declaration of a scaffolder, Scott Martin, dated 23 December 2015 that was apparently emailed by Mr Martin to Ms P at the Citizenship branch email address on 1 January 2016. Mr Martin states that he has known Mr Donnelly for 15 years and that he does not believe he poses any of the characteristics to re-offend and that he should be considered of good character. There is no suggestion the statutory declaration was provided to any of the given addresses for the revocation request. There is no explanation as to why that step was not taken if the applicant wished to have the Minister rely on it for the purpose of the revocation request. The failure to locate and consider the statutory declaration did not deny the applicant procedural fairness in circumstances where it was within the power of the applicant to seek to have any such documents provided to the Minister in support of his revocation request. No jurisdictional error is disclosed. 67 Finally, I note that in addition to his written arguments reproduced above, in oral submissions the applicant submitted that henchmen of the Minister were present in the detention centres threatening to harm people if they wished to access the computer to make representations to the Minister; and that he was blackmailed to refrain from making complaints about his detention in relation to his case. There was no evidence to substantiate the applicant's claims that he was denied the opportunity to make further representations (claims that were also alluded to in one of his affidavits but unsubstantiated). The email of 7 June 2016 suggests his case manager went to some trouble to encourage the applicant to make further representations but he declined to do so. I am not satisfied that the applicant was denied the opportunity to make representations for the purpose of his revocation request. Nor did the applicant explain the nature of any representations he says he was unable to make.

The applicant's mental health 68 The applicant's claims that he was deliberately denied medication were not substantiated by any evidence. The Minister noted in his reasons that the applicant suffers from severe clinical depression. However, there was no medical or other evidence that suggested that he was unable to properly make representations due to his mental health. It is not for this Court to draw its own conclusions as to the existence, nature and effect of a claimed mental incapacity by reference to the applicant's submissions: Pallett v Commonwealth of Australia, Department of Human Services - Centrelink [2017] FCA 1132 at [58]; BCF16 v Minister for Immigration and Border Protection [2019] FCA 19 at [45]. 69 The applicant's contention that there was a denial of procedural fairness due to the state of his mental health following the alleged withholding of medication is not established.

Ground 4 70 The applicant contends that the Minister failed to take into consideration s 5B of the Sentence Administration Act. That section provides: Community safety paramount The Board or any other person performing functions under this Act must regard the safety of the community as the paramount consideration. 71 The applicant argues that as the Parole Board granted him parole, then pursuant to s 5B, it did not consider him a threat to the safety of the community. He argues that this finding by the Parole Board was a relevant consideration which the Minister was obliged to take into account. 72 This argument was not clearly articulated before the Minister. Section 5B is not referred to in the applicant's representations or the Minister's reasons. The applicant's representations did not include that the applicant had been considered by the Parole Board as not being a threat to the community. 73 The principles with respect to the Minister's approach to representations are summarised in a number of authorities. In particular: (a) the Minister must afford the applicant procedural fairness by considering information provided by the applicant which is relevant to the applicant's personal circumstances, and critical and relevant to the applicant's case: Picard at [42]; (b) it is not necessary for the Minister to refer to every matter raised in representations and every piece of evidence: Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [49]. However, if the Minister overlooks a substantial, clearly-articulated argument relying on established facts, which if accepted could or would be dispositive of the decision, the Minister's error may be characterised as a jurisdictional error: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [25], [30] (Rangiah J), [77] (Colvin J); (c) an applicant is not permitted to pursue a course of parsing and analysing 'representations' with a view to identifying some peripheral matter which has not expressly found its way into the reasons for a decision made under s 501CA(4) and to thereafter rely upon the absence of such a reference to establish jurisdictional error: Maioha at [62]. 74 Although the point was not clearly articulated in the applicant's representations, the Minister's reasons do address the fact that the applicant was granted parole (see [39] of the Minister's reasons, extracted at [36] above) in the context of risk to the Australian community. The Minister noted the applicant breached his parole conditions in that he failed to comply with a Sex Offender Maintenance Program and failed to advise of a change of address, and that his parole was cancelled some ten months after it was granted. The Minister considered the applicant's comments about his cancellation of parole suggested a limited insight into his actions. It was appropriate for the Minister to have regard to such matters when taking into account the issue of parole. They reduce the weight that might otherwise properly be accorded to a grant of parole. No error in his reasoning is disclosed. 75 In Coker v Minister for Immigration and Border Protection [2017] FCA 929, the Minister was held to have erred by failing to consider evidence that the applicant had been released on parole, which formed a significant element of the applicant's submissions. This case is distinguishable. In this case the applicant's representations did not include that the Parole Board did not consider he was a threat to the community and the Minister in any event expressly referred to the applicant's release on parole.

Ground 5 76 The applicant contended that the exercise of the Minister's power was unreasonable, as the Minister made his decision some 21 years after the relevant offence was committed and in circumstances where had the parole breach warrant been executed in a timely manner by the WA Police, the applicant would have been returned to custody and completed his sentence before the Minister sought to rely on s 501(3A). Additionally, in oral submissions the applicant argued that as he was allowed by police to remain at large in the public domain between 1998 and 2012 the police did not consider him a threat to the public. He argued that the failure by the police to present him to a magistrate for his parole breach was a breach of their obligations as legal officers, and had they complied with their obligations he would not have been in prison when the Minister's delegate purported to exercise the power under s 501(3A). 77 There is no express legislative constraint upon the time at which the power conferred by s 501(3A) may be exercised, other than that the power must necessarily be exercised whilst the visa is still in force and whilst the visa holder is still serving a sentence of imprisonment: Raibevu v Minister for Home Affairs [2018] FCA 2052 at [38]. 78 Although it had been over 20 years since the applicant committed the sexual offences, this does not, of itself, make the Minister's findings unreasonable. The Minister took into account that there had been lengthy periods when the applicant did not re-offend, but said he gave that factor less weight than he otherwise may have, because throughout that time the applicant was in breach of his parole conditions. 79 In Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275, there had similarly been 20 years since the applicant had committed a serious offence, but the Minister considered that the applicant's failure to accept full responsibility for his 1995 conviction and ongoing disrespect for authority led the Minister to have concerns about the extent of his rehabilitation. Although the claim in that case was that the Minister had not given the length of time appropriate weight, Perry J considered there to be no illogicality in the Minister's reasoning (at [38]). 80 This is not a case such as Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81, where the Minister found expressly that the appellant had been rehabilitated in the years since his offending. Rather, in this case the Minister found (at [43]-[44] of the reasons) that the applicant either lacked remorse for his offending or comprehension of his wrong-doing, and that this raised concerns in regard to his progress to rehabilitation. 81 The suggestion that his time 'at large' meant that the police did not consider him a risk to the public was not a matter raised in the applicant's representations. Failure to address it does not comprise jurisdictional error. There was no evidence before the Minister as to the position of the police during the intervening period. At most there was an unsubstantiated assertion in the applicant's statutory declaration that the police 'corruptly [discharged] a duty to execute a Return to Prison order' after the applicant lodged a complaint with the Corruption and Crime Commission. No clear representation arises from that unsubstantiated assertion that the police otherwise considered the applicant was not a risk to the public. 82 The Minister considered the matters that were before him relevant to the chance of re-offending and so the risk to the Australian community. The Minister took into account that there had been lengthy periods after his release from imprisonment in 1998 where the applicant did not re-offend (as already noted). The Minister also took into account that such periods of non-offending tend to reduce the likelihood of further offending, but said that he could not rule out the prospect of re-offending. The Minister noted reports that during his most recent period of imprisonment the applicant had been a compliant prisoner and that his conduct in immigration detention was satisfactory. The Minister took into account that the applicant had been granted parole. 83 In summary, it is clear that the Minister took into account the long period between the applicant's release from prison in 1998 and his re-incarceration in 2012 when considering the question of risk to the Australian community. Failure to draw an inference that the police did not consider him a threat to the public during that time does not comprise jurisdictional error on the Minister's part in circumstances where there were no sufficient facts from which such inference could properly be drawn, and where no such representation was clearly made by the applicant.

Ground 6 84 As referred to above, the hearing of this application was initially adjourned pending the outcome of the appeal in Tesic, which addressed this ground. As in Tesic, the Minister in this case referred to an offender forfeiting the 'privilege of remaining in Australia' (at [49] of the Minister's reasons, included at [38] of these reasons). 85 The Full Court held in that case: [31] Properly read in context, the references to "privilege" in [31] and [55] of the Minister's statement of reasons are not to be construed as suggesting that the Minister was referring to legal principles but to considerations of government policy. Direction No. 65 provides the relevant context. We do not read the Minister's statement of reasons as meaning that a non-citizen has no rights (but only privileges). We therefore do not accept the factual basis for the submission that the decision-making process was distorted. Further and consequentially, we do not accept that there was a misunderstanding of the "privilege" as a principle of law which coloured the Minister's reasoning process. [32] The respondent focused on the word "principle". We do not accept the respondent's submission that the Minister used the word "principle" to mean a rule of law that mandated or created a presumption that a person who committed serious crimes would not have his or her cancellation decision revoked, so as to distort or impermissibly fetter the Minister's discretion. In our opinion, in saying that he was mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia, the Minister was taking into account a policy to that effect. [33] In our opinion, the primary judge erred in distinguishing Stretton and AZAFQ and in concluding that the Minister had used the word "privilege" inconsistently with the statutory rights that non-citizens have in respect of visas. The primary judge also erred, at [56] insofar as her Honour concluded that the Minister, in stating that he was mindful of the "principle" that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia, took into account an irrelevant consideration. 86 In light of the Full Court's reasons, this ground must fail. Properly read, the reference to 'privilege' in the Minister's reasons similarly did not colour the Minister's reasoning process or establish that he took into account an irrelevant consideration.

Ground 7 87 The applicant argues in his amended application: 63. That the Minister has exercised the jurisdiction of an appellate court contrary to Chapter III of the Australian Constitution. 88 Such a ground has no prospects of success in light of the decision of the High Court in Falzon. The Court (Kiefel CJ, Bell, Keane and Edelman JJ) wrote: [47] The exercise of a power of cancellation of a visa by reference to the fact of previous criminal offending does not involve the imposition of a punishment for an offence and does not involve an exercise of judicial power. It has long been recognised that the deportation of aliens does not constitute punishment. The cancellation of a visa as a step necessary to achieve the removal of a person from Australia should be viewed in the same light. In Ex parte Walsh and Johnson; In re Yates, Isaacs J drew a distinction between punishment for a crime and deportation as a political precaution carried out by the Executive. In O'Keefe v Calwell, Latham CJ referred to the deportation of a convicted immigrant as a measure of protection of the community and not as punishment for any offence. [48] The power to cancel a visa by reference to a person's character, informed by their prior offending, is not inherently judicial in character. It operates on the status of the person deriving from their conviction. By selecting the objective facts of conviction and imprisonment, Parliament does not seek to impose an additional punishment. (Footnotes omitted.) 89 Accordingly, this ground of review must fail.

Issues regarding citizenship 90 The applicant's submissions returned on several occasions to the issue of his 1995 citizenship approval revocation. For example, in his affidavit filed 13 March 2017 the applicant alleges that he did not receive any letter requiring him to attend a citizenship ceremony, and that he was informed orally about the progress of his application. In his oral submissions, the applicant submitted that his citizenship was cancelled and there was a problem that was not communicated to him until 2015. 91 Although the Minister acknowledged the applicant's complaints about that process (at [13]-[14] of his reasons), the reasons do not address them further. 92 Arguably, and taking into account that the applicant was by choice self-represented, it could be said that representations were made about the citizenship approval revocation that were not addressed. I have already set out the principles with respect to representations. Relevantly, it is not necessary for the Minister to refer to every matter raised in representations and every piece of evidence: Buadromo at [49]; Maioha at [41]. 93 It is important to bear in mind that the Minister was not determining the applicant's citizenship application but was addressing the revocation request relating to the applicant's visa. The applicant's complaints about the citizenship approval process centre around his non-receipt of correspondence and non-attendance at a citizenship ceremony which he attributes to what he perceives to be his wrongful 1995 conviction (as referred to in his statutory declaration). However, by the time of the Minister's consideration of the request for revocation relating to the visa, the 1995 revocation of the citizenship approval had been superseded by events. That revocation had been notified as invalid and in 2015 there had been a fresh consideration and exercise of the power to revoke the citizenship approval, based on the cancellation of the applicant's visa and on character grounds. It was not for the Minister in the context of s 501CA to then speculate or make findings as to whether there may have been some historical issue of procedural fairness with respect to the 1995 revocation. At the time the Minister made his decision under s 501CA, the applicant was not a citizen and the Minister was entitled to proceed on that basis. 94 The applicant did not clearly enunciate the relevance of his complaints about the 1995 citizenship approval revocation to the s 501CA determination. However, having attempted to address the various matters that were raised by the applicant before me, I accept the Minister's submission that there was no jurisdictional error by reason of the Minister not considering further the applicant's claims of procedural fairness in relation to the 1995 citizenship approval revocation or not taking into account copies of communications relating to those matters that appear in the T documents. Such claims were not relevant to the Minister's decision in light of the subsequent revocation. No practical injustice arises. Further, for the reasons discussed relating to grounds 1 and 2, the Minister was not obliged to give weight to the applicant's protestations relating to the circumstances of his 1995 conviction, which are repeated in communications regarding his citizenship approval revocations. It follows that I am not persuaded that the Minister failed to accord to the applicant procedural fairness or failed to have proper regard to a relevant representation.

Orders 95 Accordingly, although I grant an extension of time for the filing of the originating application, the application is dismissed. I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.