Dunn v Minister for Immigration and Border Protection

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGES: LOGAN, CHARLESWORTH AND STEWARD JJ DATE OF ORDER: 21 December 2018

1. The appeal is dismissed with costs as agreed or as assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 I have had the privilege of reading in draft the reasons for judgement of Charlesworth J. 2 I have the misfortune of finding myself in respectful disagreement with her Honour as to the disposition of this appeal. I use the word, "misfortune" advisedly. That is because, in modern times, there is an unfortunate tendency abroad in some quarters of the Executive and in some of the popular press to pillory those in the judiciary and, for that matter, those in the Executive whose function it is to conduct independent merits review, who discern some injustice in law or fact in the way in which a Minister of State has dealt with a question concerning the visa of a person convicted of sexual offences relating to children. So the misfortune lies in the prospect of recent history repeating itself, given this dissent. Yet the judicial obligation is to do right, as one understands the law, without fear, favour, affection or ill-will (and a like point may be made by analogy in relation to merits review). It would be antithetical to that obligation to do otherwise because of some apprehended, personal misfortune. 3 The three offences in respect of which the appellant, Clive Ronald Dunn, was convicted and sentenced - two involving offences against Commonwealth law (accessing and making available child pornography using a carriage service), and one against Victorian law (possessing child pornography) - were, to any right-thinking person, vile and sinister. That is so even though the overall period of imprisonment imposed is, necessarily, indicative of lower order criminality. The sinister quality in such offences is that the prurient interest which drives their commission creates, as the learned sentencing judge noted, a market for the base exploitation of the most vulnerable and innocent in order to satisfy it. In this sense, they are not victimless crimes. 4 The very nature of the offences committed by Mr Dunn was such that, inevitably, there was a sure foundation for Ministerial satisfaction that he did not pass the "character test" for which the Migration Act 1958 (Cth) (the Act) (s 501(6)(e)) provides. In turn, this satisfaction yielded a mandatory obligation to cancel his visa (s 501(3A)). 5 Mr Dunn took up the opportunity, necessarily extended to him by the Minister so as to comply with s 501CA of the Act, to make representations as to why the Minister should exercise his discretion under s 501CA(4) to revoke the cancellation of his visa. 6 In the absence of provision to the contrary, the exercise of the Minister's power to decide whether or not to revoke the cancellation was regulated by the principles of natural justice (sometimes termed procedural fairness): Annetts v McCann (1990) 170 CLR 596, at 598; Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44, at 61 [51] and Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 258 [11]. Materially, that meant that Mr Dunn was "entitled to know the case sought to be made against him and to be given an opportunity of replying to it": Kioa v West (1985) 159 CLR 550 at 582. 7 That this principle of natural justice regulated the exercise of the Minister's power was common ground between the parties. The controversy between them was whether, in the events which transpired, the Minister violated this principle. 8 Materially, the Minister's findings, at para 69 of his reasons, were that: (a) if Mr Dunn reoffended in a similar manner, there is a cost to the community in policing and administering the criminal justice system; and (b) in relation to policing sexual child exploitation material, those exposed to the material when policing and administering the criminal justice system may suffer psychological harm. These were hardly gratuitous findings. They were each findings which were adverse to Mr Dunn. They were findings which, with others, informed the Minister's decision not to revoke the cancellation of Mr Dunn's visa. 9 The Minister signified to Mr Dunn, prior to the making of his decision, that a factor to which he would advert was the risk to the community presented by any reoffending by him. Because the Minister chose to advert to such a risk, it is unnecessary to decide whether the Act obliged him to do that. Accordingly, I refrain from expressing any view on that subject. 10 That there would be a cost to the community in policing and administering the criminal justice system was a logical and inevitable corollary of any reoffending conduct. It does not, in my view, with all due respect to those who have a different view, including the learned primary judge, follow that it was "blindingly obvious" (cf Applicants M1015/2003 v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 1309 at [54] per Weinberg J) that this would be taken into account in an adverse way or at all in the making of the Minister's decision. Of course if the risk of reoffending came to fruition, the impact would not be limited to children exploited in Australia or abroad for pornographic image making but would necessarily include policing and criminal justice system administration costs. But there is a very real difference between informing a person that one is going to take into account potential risk to the community and informing that person that one is also going to take into account potential financial cost to the community. 11 Once again with all due respect to those who hold a different view, including the learned primary judge, I am also unable to accept that the prospect that those policing and administering the criminal justice system may suffer psychological harm was either "blindingly obvious" or, for that matter, obvious at all, at least at present. 12 One way of demonstrating this is by analogy. 13 These days, there is a general understanding, not just in the military but also in the wider community, that members of the Defence Force in contact with an enemy force or who perform duty in an environment where the risk of such contact or of other causes of death or wounds is pervasively and persistently present are prone to suffer combat stress reaction or, to use a more frequently encountered term, post-traumatic stress disorder (PTSD). One indication of that contemporary, general understanding is to be found in the existence of a specific statement of principles concerning PTSD in the form of a statutory instrument made under the Veterans' Entitlements Act 1986 (Cth). Exactly when that condition will manifest itself and its severity is individually specific, but that there is a risk of the condition for those on active service is generally understood in modern times. 14 That contemporary, general understanding may be contrasted with the position, now over a century ago, during the First World War. Then, that risk was not generally understood even within the military, let alone by the wider community. In the militaries of both the Allied and the Central Powers in that conflict, soldiers were court martialled, sentenced to death and (save for Australian troops, because of our reservation to our government of a need to consent) executed for behaviours some of which we would now ascribe to symptoms of PTSD. A century later, with greater, general understanding of the risk, some countries have even pardoned those executed in that war: see, for example, s 359, Armed Forces Act 2006 (UK). Over the course, and in the aftermath of that war, there was a developing understanding amongst medical officers and some general service officers that there may be a genuine, underlying medical condition, termed by some at the time, "shell shock": see A G Butler, Official History of the Australian Army Medical Services, 1914-1918, Volume III - Special Problems and Services (1st edition, 1943), Chapter II - Moral and Mental Disorders. The risk of its contraction was not then generally understood in the wider community. The behaviours of all too many veterans after that war, along with advances in the disciplines of psychology and psychiatry prompted by the experience of that war may, in hindsight, have been a precipitator of later, wider community understanding. 15 The point of this excursion into history is that, as once with what we now term PTSD, so perhaps in the future it will prove in relation to particular psychological risks presented by the undertaking of particular policing and criminal justice administration duties. What is or has become trite to some may presently come as a revelation to many. In time, an understanding once confined to particular occupational groups may become pervasive to the point where, truly, the subject is "blindingly obvious". That there may be a particular risk of the type of psychological harm to which the Minister referred may be known to some within the police or medical profession. It may also be known to some in the legal profession or the judiciary, especially including those of us who, for example, have appeared or presided in cases arising under, for example, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), to say nothing of encounters in criminal, workers' compensation or civil jurisdictions. But it is presently a large step to extrapolate from such encounters any general "obviousness". 16 This aside, it does not follow that alerting a person in advance that one is proposing to take into account as an adverse consideration risk to the community also alerts that person to the fact that one is proposing to take into account a risk of psychological harm to those undertaking of particular policing and criminal justice administration duties. 17 The Minister did not in his reasons categorise the existence of a risk of psychological harm as a notorious fact. In any event, the existence of such a risk was not a notorious fact. Such facts are those which are common knowledge or part of ordinary experience. They would include, but not be limited to, those of which a court might take judicial notice. In my view, this particular risk was one of those which "while not so indisputable as to be considered within every ordinary person's common sense, are nonetheless susceptible to resolution by an expert adjudicator": D B. Rodriguez, "Official Notice and the Administrative Process", (1990) 10 Journal of the National Association of Administrative Law Judiciary, Issue 1, article 3, p 51. 18 The Minister had no material in the form of expert evidence from a third party before him as to a risk of suffering psychological harm by those exposed to child pornographic material when policing and administering the criminal justice system. Such third party material could but need not have been in the form of a proof of evidence or report by a person with relevant expertise. It might, for example, have alternatively been found in a statement in a learned article in a journal by an author apparently possessing relevant qualifications and experience which was placed before the Minister. 19 That the Minister had no such material did not mean that, in public administration, he was unable, for example, to draw on personal knowledge and understanding of the existence of such a risk. The Minister's obligation was to make findings based on logically probative material. On the one hand, he could not act on rumour or speculation; on the other, he was not in any way bound by the rules of evidence. Material which would be admissible in a judicial proceeding is of course permissibly considered in public administrative decision-making and may, because of its having the quality of conformity with the rules of evidence carry singular weight: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, at 256 per Evatt J. Nonetheless, to conceive of "evidence" in the sense of only that which is admissible in the exercise of judicial power by a court would be to borrow "from the universe of discourse which has civil litigation as its subject": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang), at 282. This is but one example of the very different nature of administrative decision-making by comparison with judicial decision-making: Wu Shan Liang (ibid); Mahon v Air New Zealand [1984] AC 808, at 814. A judge must decide a case by reference to the evidence presented by the parties at a trial, including facts of which judicial notice may be taken (as to the latter, in this Court, s 144 of the Evidence Act 1995 (Cth) is applicable). A judge is not permitted to find facts based on personal knowledge of their existence: Hurpurshad v Sheo Dyal (1876) LR 3 Ind App 286; Palmer v Crone [1927] 1 KB 804; Thomas v Thomas [1961] 1 WLR 1. If, by virtue of pre-parliamentary occupational experience or by knowledge gained through the exercise of Ministerial office, the Minister had gained specialist knowledge about a risk of psychological harm, that knowledge would be capable of supplying a logical foundation for a finding as to the existence of that risk: J A Smillie, The Problem of "Official Notice": Reliance by Administrative Tribunals on the Personal Knowledge of Their Members [1975] Public Law 64, at 66. 20 Whether he had specific material before him or proposed to draw on relevant personal knowledge and experience, the exercise of the Minister's power was, as I have indicated already, regulated by the principles of natural justice. One such principle, is the avoidance of bias, be it actual or in appearance. Thus, if the Minister were relying upon personal knowledge and experience as the basis for a conclusion as to the existence of such a risk, that, in itself would require singular disclosure of such intended reliance and overt receptiveness to being challenged in that knowledge and experience by any material which called into question the existence, nature and extent of any such risk. 21 In this case, it is not possible to determine whether the Minister's finding as to the existence of such a risk was based on his personal knowledge and experience, because his statement of reasons does not disclose this. But the jurisdictional error allegedly made by the Minister and not upheld by the primary judge was not put either on the basis of an absence of material to support a finding as to the existence of the risk or on the basis of some actual or apprehended bias on the part of the Minister. Rather, the jurisdictional error was said to be found in a denial of procedural fairness grounded in a failure to be afforded an opportunity to be heard in relation, to this risk and the subject of potential financial cost to the community. 22 Prior to making his decision, the Minister made no disclosure to Mr Dunn that he intended to take into account as a consideration a risk of the suffering of psychological harm by those policing and administering the criminal justice system to the end of detecting, investigating and prosecuting any reoffending by him. Nor, given that absence of disclosure of the consideration itself, did he disclose any material, be that his own opinion based on personal knowledge and experience or anything else upon which he proposed to rely, even that it was in his view a notorious fact, for a finding that such a correlative risk existed. Nor, necessarily, did the Minister afford Mr Dunn an opportunity to be heard in respect of that consideration. 23 It follows, in my view, that, in making his decision, the Minister did not comply with the principles of natural justice, in that he did not offer Mr Dunn an opportunity to be heard in relation to the two adverse considerations mentioned. 24 As it happens, it was also concluded in Durani v Minister for Immigration and Border Protection (2014) 314 ALR 130 and in Jione v Minister for Immigration and Border Protection (2015) 232 FCR 120 that the Minister had failed to afford the person affected by his decision an opportunity to be heard. Like the present case, these were but examples on particular facts of how an obligation to extend such an opportunity arises. It is always necessary to advert to the nature and extent of the particular prior notice (if any) given to the person affected and the particular adverse consideration ultimately taken into account in deciding whether an administrative decision-maker who is obliged to comply with the principles of natural justice has failed to comply with those principles by not affording that person an opportunity to be heard. These cases offered illustrations by analogy that supported Mr Dunn's contention as to how the principles applied in the circumstances of his case but neither bound the learned primary judge to find in his favour. 25 Even though he concluded that there had been no denial of an opportunity to be heard in the manner alleged by Mr Dunn, the learned primary judge considered that, even if there had been, no practical injustice had resulted. With respect, I am unable to accept this. 26 As with the grant of constitutional writs by the High Court under s 75(v) of the Constitution or of relief by this Court under s 39B of the Judiciary Act 1903 (Cth), the grant of relief by this Court in the exercise of the original jurisdiction conferred by s 476A of the Act is a matter of discretion. As to the principles attending the exercise of such a discretion, the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400 was expressly approved by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [28] as offering relevant albeit not exhaustive guidance: For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld. [Emphasis added] 27 The sentiments entailed in the consideration emphasised, "if no practical injustice could ensue" were taken up in the following observation made by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37]: Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice 28 If there are present other considerations that, inevitably, would support the making of the decision challenged on judicial review that procedural fairness was denied in respect of another consideration taken into account it might nonetheless aptly be concluded that no "practical injustice" resulted from that denial. 29 Here the considerations were not all one way. The Minister eloquently, with respect, acknowledged this in his reasons. In these circumstances, a judicial conclusion that no practical injustice has resulted from a denial of procedural fairness in respect of particular adverse considerations taken into account is fraught with the risk of the Court substituting its own evaluative judgement on the merits for a decision that Parliament has consigned to the Minister to make. To do that is to step outside the legitimate role of a court conducting judicial review: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-37 per Brennan J. This, with respect, is what the learned primary judge has done, in my view. 30 It is by no means impossible to conceive of submissions which might have been made on behalf of Mr Dunn had he been alerted in advance to the prospect that the Minister proposed to consider adversely to the revocation of the cancellation of his visa both the cost of and a risk of the suffering of psychological harm to those policing and administering the criminal justice system to the end of detecting, investigating and prosecuting any future reoffending by him. He might, for example, have put that the risk of reoffending was so low and the prospect that such a cost and psychological harm risk (if he acknowledged the existence of that particular risk) would be present in any event such that these were considerations of no adverse weight in his individual case at all. It is enough to grant relief that compliance with the relevant natural justice obligation might have made a difference, not that it must: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. 31 For these reasons, I would allow the appeal, quash the decision of the Minister and remit the matter to him for deciding according to law the question of whether to revoke the cancellation of Mr Dunn's visa. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

CHARLESWORTH J: 32 The appellant, Clive Ronald Dunn, is a citizen of New Zealand. He is 70 years old and has resided in Australia since 1980. In December 2014, Mr Dunn was convicted of three child pornography offences in the County Court of Victoria. He was sentenced to a term of 15 months imprisonment. At that time, Mr Dunn was the holder of a (Class TY) Subclass 444 Special Category (Temporary) visa issued under the Migration Act 1958 (Cth). 33 On 17 March 2015 a delegate of the Minister for Immigration and Border Protection cancelled the visa on character grounds (original decision). Cancellation of Mr Dunn's visa was mandated by s 501(3A) of the Act because of the nature of Mr Dunn's offences and the circumstance that he was, at the time of the cancellation, serving a sentence of imprisonment on a full-time basis in a custodial institution for the child pornography offences: see s 501(3A)(a) and (b) respectively. 34 In accordance with s 501CA(3) of the Act, the Minister invited submissions from Mr Dunn as to whether the original decision should be revoked. After receiving submissions, the Minister decided not to revoke the original decision. The Minister's decision was subsequently quashed by an order of this Court and the question of whether the original decision should be revoked was returned to the Minister for reconsideration: Dunn v Minister for Immigration and Border Protection [2016] FCA 489. After again inviting and considering submissions from Mr Dunn, the Minster again refused to revoke the original decision. In doing so, the Minister concluded that if Mr Dunn were to re-offend in a similar manner: (1) there would be a financial cost to the community in policing and administering the criminal justice system in respect of the reoffending; and (1) those exposed to child exploitation material in the course of policing or administering the criminal justice system may suffer psychological harm. 35 Together, these considerations will be referred to as the social cost considerations. 36 Mr Dunn again made an application to this Court for judicial review. He submitted that the Minister had failed to accord him procedural fairness in respect of the social cost considerations because he was not notified of the possibility that the Minister may take them into account adversely to his interests. The primary judge dismissed the application: Dunn v Minister for Immigration and Border Protection [2017] FCA 1328. This is an appeal from that judgment. 37 For the reasons that follow, the appeal should be dismissed.

THE REASONS of primary judge 38 The jurisdiction exercised by the primary judge was that conferred by s 476A(1)(c) of the Act, being equivalent to that conferred on the High Court under s 75(v) of the Constitution. Accordingly, to succeed on his application for judicial review, it was necessary for Mr Dunn to demonstrate that the Minister's decision was affected by jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, s 474 of the Act. 39 The primary judge noted that the Minister had drawn Mr Dunn's attention to the matters set out in Ministerial Direction 65 and had invited Mr Dunn to address the considerations referred to in it. Direction 65 is an instrument made pursuant to s 499(1) of the Act. It is binding upon persons exercising the powers of the Minister under the Act, but not on the Minister personally: Bukvic v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 554 at [6] - [8]; Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 at [31]; NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [6] (Allsop CJ and Katzmann J). 40 Among other things, Direction 65 sets out the primary considerations bearing on the exercise of the Minister's discretion. The considerations expressly include the "risk to the Australian community should the non-citizen commit further offences". By providing Mr Dunn with a copy of Direction 65, the Minister invited Mr Dunn to make submissions about the risk of harm to "individuals, groups or institutions in the Australian community" that might arise should he reoffend: Direction 65, pt 13.1.2. The Minister otherwise accepted before the primary judge (as on this appeal) that no further particulars were given to Mr Dunn about the social cost considerations in advance of the decision. It was the failure of the Minister to give those particulars that was said before the primary judge to constitute jurisdictional error. 41 The learned primary judge summarised the applicable principles as follows: 23 In making a decision under s 501CA(4) the Minister must afford procedural fairness to the person affected by the decision. The nature and content of an obligation to accord procedural fairness will depend on the circumstances of each case, including the statutory context in which the decision is made: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [30]-[31] (Gleeson CJ and Hayne J). 24 Procedural fairness requires a decision-maker to identify for the person affected any critical issues not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must advise of any adverse conclusion which would not obviously be open on the known material, but is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] (French CJ and Kiefel J); Durani at [57]. The Minister is required to adopt a procedure that is reasonable in the circumstances and to afford the person affected by the decision an opportunity to be heard. Breach of procedural fairness will occur, and jurisdictional error arise, where the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a 'practical injustice': Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 at [82] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ). … 26 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] Gleeson CJ observed that procedural fairness is concerned with avoiding 'practical injustice' and there is no denial of procedural fairness where no practical injustice has been shown: see also NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44; [2014] FCAFC 39 (NBNB) at [4] (Allsop CJ and Katzmann J). 42 In summary, the primary judge held that no breach of the rules of procedural fairness had occurred because: (1) the possibility that the social cost considerations may be taken into account was obviously open on the known material and otherwise blindingly obvious; (2) the social cost considerations were immaterial to the outcome; and (3) the social cost considerations were incontrovertible in any event. 43 As to obviousness, the primary judge held that Mr Dunn was plainly on notice that a primary consideration affecting the exercise of the power included the protection of the Australian community from harm, having regard to the nature of Mr Dunn's past offending. His Honour continued: 32 One should not lose sight of the essential facts of Mr Dunn's offending. He pleaded guilty to accessing, possessing and making available child pornography materials which included nearly 800 items depicting penetrative sexual activity between children and between adults and children. He accepted that his offending was of the most serious order. His contention - that it was not apparent to him that the Minister's consideration might contemplate the psychological harm that might be suffered by persons exposed to child pornography in the course of policing and administering the criminal justice system - must be considered in the light of his offending. 33 Having regard to Mr Dunn's offending, it is obvious that any consideration of protecting the Australian community from a risk of harm through child pornography would include consideration of the risks of psychological harm which people might suffer as a result of exposure to such materials. Particularly given the depravity of the child pornography with which Mr Dunn was involved it should have been apparent to him that the Minister's consideration was likely to include consideration of the risk of harm to individuals in the Australian community who might be exposed to such disturbing materials. That includes people working in the criminal justice system. It is obvious that people required by their employment to closely view, collate and/or consider disturbing child pornography, such as police officers, employees in the relevant prosecuting authorities (e.g. the Office of Public Prosecutions) and/or court staff dealing with criminal charges, might suffer some form of psychological harm as a result. Counsel for Mr Dunn effectively acknowledged the existence of this risk by arguing that job-based counselling would be available to mitigate the harm that might be suffered. 44 The primary judge said that Mr Dunn had served a term of imprisonment at the time that he made his representations to the Minister, and must have had a general understanding of the significant economic costs involved in charging, convicting and imprisoning him, even if the precise figures were unknown. "It was blindingly obvious" the primary judge said, "that a consequence of his reoffending would include further costs to the community of that nature". Accordingly, there was no obligation on the Minister (or the Department administered by him) to specifically put that risk to Mr Dunn for comment. 45 The primary judge distinguished Durani v Minister for Immigration and Border Protection (2014) 142 ALD 195 and Jione v Minister for Immigration and Border Protection (2015) 232 FCR 120. More will be said of those authorities later in these reasons. 46 As to materiality, the primary judge held that the social cost considerations were not critical to the outcome of the Minister's decision not to revoke the original decision because the "main thrust" and "central consideration" was the protection of children (particularly Australian children) from the risk of harm through child pornography (at [49]): ... The Minister refused to revoke the original decision to cancel Mr Dunn's visa because Mr Dunn had committed serious child pornography offences and there was an ongoing risk that Mr Dunn would reoffend. The Minister considered such offending contributes to the market for the corruption and exploitation of children in Australia, that it was not inconceivable that Australian children could be involved in the production of such pornography and that any encouragement of the market for child pornography in Australia carries an attendant risk that the Australian community will be exposed to it and harmed as a result. Protecting Australian children from the risk of harm through child pornography was the central consideration. 47 The primary judge described the Minister's reference to the social cost considerations as "subsidiary" to these central considerations (at [43] and [49]). 48 As to whether the social cost considerations were incontrovertible, the primary said (at [53]): As the High Court said in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 (Mason, Wilson, Brennan, Deane, and Dawson JJ) "[i]t is no easy task for a court… to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome." Cases such as the present in which (on Mr Dunn's submissions) the Minister had regard to adverse material without informing him of that material are not usually considered to be in that category. In such cases the 'practical injustice' is generally found in the circumstance that the person affected has been denied the opportunity to address the adverse material. If the adverse material 'might realistically have affected the outcome', or if it is not possible to conclude that the decision-maker acting reasonably could not have come to a conclusion favourable to the person affected, the decision-maker will have failed to discharge the onus to establish that the breach could have had no bearing on the outcome: Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482; [2014] FCAFC 123 at [107]-[113] (Dowsett, Murphy and White JJ) citing with approval Dagli v Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541; [2003] FCAFC 298 at [95] and [97] (Lee, Goldberg and Weinberg JJ). 49 The findings of the primary judge that the social cost considerations were not important to the outcome and otherwise incontrovertible supported his Honour's conclusion that no practical injustice could result from any failure to notify Mr Dunn of the possibility that the social cost considerations may be taken into account. Accordingly, his Honour held, the Minister's decision was not affected by jurisdictional error.

grounds of appeal 50 There are four grounds of appeal: 1. The learned judge erred in finding that Mr Dunn was not denied procedural fairness, because it was obvious that the Minister would take into account that further offending by him would result in cost to the community in policing and in the criminal justice system. 2. The learned judge erred in finding that Mr Dunn was not denied procedural fairness, because it was obvious that the Minister would take into account that further offending by him could result in psychological harm to those involved in policing child pornography and administering justice. 3. The learned judge erred in confining the cases of Durani v Minister of Immigration and Border Protection and Jione v Minister of Immigration and Border Protection (citations omitted) to their own facts and/or to decisions under s 501A(2) of the Migration Act 1958. 4. The learned judge erred in concluding that there was no practical injustice and/or that the failure to alert the applicant (as to the matters referred to in grounds 1 and 2) could not have affected the outcome.

Principles 51 The Minister's discretion to revoke the original decision could only be exercised if the Minister was satisfied either that Mr Dunn passed the statutorily prescribed character test (s 501CA(4)(b)(i)) or that there was another reason why the original decision should be revoked (s 501CA(4)(b)(ii)). It is not disputed that Mr Dunn does not and cannot pass the character test. Accordingly, the task of the Minister was to assess whether there was another reason to revoke the original decision. 52 It is well established that the Minister may take into account the risk of harm to the Australian community should the person affected by the decision reoffend: Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132; Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367; Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513; Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88; AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451. It is also well established that the Minister was obliged to afford Mr Dunn procedural fairness in exercising the power conferred by s 510CA(4) of the Act: Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [31] (Tracey J). As French CJ and Kiefel J stated in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9], procedural fairness requires a decision-maker to identify for the person affected any "critical issue not apparent from the nature of the decision or the terms of the statutory power". 53 Even if the social cost considerations were "critical" in the necessary sense, and even if they were not drawn to Mr Dunn's attention, no procedural unfairness would result if the considerations were obvious from the nature of the decision or the terms of the statutory power. The words "apparent", "obvious" or "blindingly obvious" are not statutory tests. They are semantic pointers to a factual enquiry, the nature of which will differ according to the statutory context. Ultimately, the task of a court on judicial review is to identify whether a person adversely affected by a decision was, in all of the circumstances, given a fair opportunity to make submissions in relation to a material issue. In circumstances where a person in the applicant's position ought reasonably to apprehend that the issue may be taken into account, there will be no unfairness resulting from a failure by the decision-maker to expressly draw attention to it, nor to invite the affected person to make submissions in respect of it. The enquiry is not to be undertaken in the abstract but with a tight focus on statutory context and by reference to all of the known facts and circumstances. 54 The question of whether the social cost considerations were factually incontrovertible in my view involves a different type of enquiry. The learned judge held that Mr Dunn was not deprived of an opportunity to propound his case for a favourable outcome because there was nothing Mr Dunn could have submitted to dissuade any reasonable decision-maker of the relevant facts. It was in this sense that the learned judge concluded that Mr Dunn suffered no "practical injustice" and that, accordingly, there was no breach of the rules of procedural fairness and, it followed, no jurisdictional error. 55 In Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Lam (2003) 214 CLR 1, Gleeson CJ said (at [37]): … Fairness is not an abstract concept. It is essentially practical … [T]he concern of the law is to avoid practical injustice. 56 In Lam itself, an administrative decision-maker abandoned a previously foreshadowed procedure without first notifying Mr Lam. In the circumstances of that case, Mr Lam was unable to demonstrate that the unexpected change in procedure had deprived him of an opportunity to put any information or argument before the decision-maker, or that he had otherwise suffered detriment. Gleeson CJ said (at [37]): A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision maker. … (footnotes omitted) 57 The concept of practical injustice is not to be taken beyond its proper limits. As Gageler and Gordon JJ said in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326: 58 Contrary to the submission of the Minister in this appeal, and as has repeatedly been recognised in the Full Court of the Federal Court, Lam is not authority for the proposition that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed. What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process. … 60 Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given. (footnotes omitted) 58 Further, as this passage emphasises, the phrase "practical injustice" may be employed in different legal contexts. In circumstances where no opportunity is given to make representations about material facts or issues bearing on the outcome, "practical injustice" will thereby be demonstrated. The decision will be shown to be procedurally unfair and thus affected by jurisdictional error. Whether the facts or issues are incontrovertible is more appropriately identified as a matter affecting the exercise of the discretion of a court invested with powers of judicial review to deny relief. The issue of the constitutional writ may be denied where it can be shown that, notwithstanding the identification of jurisdictional error, an order directing the decision-maker to re-exercise the power in accordance with the law would be futile: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400 and 407 - 409; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [54] - [62] (Gaudron and Gummow JJ, Gleeson CJ agreeing at [5] - [6], Hayne J agreeing at [172]); House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112 at [31] (Greenwood J), [133] - [135] (Gilmour J). 59 In Mr Dunn's case, the primary judge dealt with the question of incontrovertibility as one informing the question of whether the Minster had committed jurisdictional error. Whilst I would respectfully disagree with that conceptual approach, for the reasons that follow I do not consider the outcome of the appeal turns upon it.

considerations not INCONTROVERTIBLE 60 The learned judge did not err in his conclusion that the social cost considerations were factually incontrovertible in the sense that there was no submission Mr Dunn could make to dissuade a reasonable decision-maker about the apprehended harm should Mr Dunn reoffend. I respectfully agree with his Honour's conclusion that should Mr Dunn again become involved with the police and the criminal justice system, there would incontrovertibly be a consequent economic imposition on the Australian community. Further, the possibility that persons involved in administering the criminal justice system might suffer psychological harm if exposed to images of the kind possessed by Mr Dunn was expressed by the Minister at no higher likelihood than that: a possibility. The intelligible basis for the existence of that possibility is to be found in the nature and severity of Mr Dunn's previous offending as detailed in the sentencing remarks. The remarks give a plain description of the content of the material forming the subject matter of Mr Dunn's prior criminal charges. Whilst it is true that the identification of a possibility involves some speculation, the Minister's task of considering the harm that might be caused should Mr Dunn reoffend was itself a speculative one. The Minister was entitled to draw inferences about possible future harm founded in the known facts about Mr Dunn's past conduct. Incontrovertibly, Mr Dunn had possessed and made available images of the most extreme depravity and had been dealt with by the police and the criminal justice system in respect of them. In my view, the factual existence of a possibility of psychological harm to those involved in policing and in the administration of the criminal justice system was a logical inference that Mr Dunn could not successfully rebut. 61 However, it does not follow that a failure to comply with an obligation (if any) to expressly invite Mr Dunn to make submissions about the social cost considerations could make no difference to the exercise of the Minister's power. That is because the issues to be decided by the Minister in respect of the considerations were not solely factual. The proper exercise of the power conferred by s 501(3A) of the Act required the Minister to arrive at a state of satisfaction (or non-satisfaction as the case may be) as to whether there was "another reason" to revoke the original decision. The task involved the evaluation of multiple countervailing factors and, importantly, the ascription of relative weight to the array of matters the Minister considered relevant. In the case of Mr Dunn, the Minister evaluated and ascribed weight to at least the following matters: (1) it was in the best interests of Mr Dunn's biological and step-grandchildren for the original decision to be revoked; (2) the Australian community would expect that Mr Dunn would not hold a visa, given the nature and seriousness of his offending; (3) Mr Dunn had significant family ties to Australia and had made positive contributions to the community; (4) Mr Dunn would face substantial hardship if he were returned to New Zealand, particularly in light of serious medical conditions from which he suffered, his age and lack of social and familial networks; (5) the nature of the child pornography material accessed, possessed and made available by Mr Dunn, including nearly 800 items in the highest classification of depravity; (6) the prospect that Mr Dunn may face prolonged detention because of doubts as to his fitness to travel; and (7) the social cost factors. 62 Although I have accepted that the social cost considerations were incontrovertible in a factual sense, the weight to be ascribed to those factors relative to other factors was a separate question for the Minister to determine, acting reasonably and within the bounds of the Act. There were strong factors weighing in favour of the revocation of the original decision, including the serious state of Mr Dunn's health and the best interests of his grandchildren and step-grandchildren. In the Minister's assessment, those factors were outweighed by the possibility that Mr Dunn might reoffend in a similar fashion and so present a risk of harm to the Australian community, not only directly but also in ways identified by the social cost considerations. Whilst the existence of the considerations was incontrovertible, the weight (if any) to be ascribed to them was not. With respect to the possibility of psychological harm, the weight of that consideration would be affected by the nature and seriousness of the harm and the steps that might be taken to mitigate it. Those are matters in respect of which Mr Dunn may adduce evidence and make meaningful submissions. The considerations were neither unimportant nor incontrovertible in the relevant sense.

MATERIALity 63 Mr Dunn's submission that the Minister erred in characterising the considerations as "not important" should be accepted to the extent identified above. The primary judge did not make an express finding that the social cost considerations were immaterial. His Honour's conclusion was that the considerations were of subsidiary importance relative to the "central" considerations. 64 The reasons of the Minister do not identify any one factor as sufficient in and of itself to justify the outcome. Rather, the reasons express a conclusion based on an accumulation of factors, no one of which, was of itself, assessed by the Minister to be sufficient. Any conclusion that considerations other than the social cost considerations were sufficient to justify the outcome was a conclusion for the Minister alone to make on the merits. The considerations were not immaterial and therefore could not be said to be "not important". 65 It follows that Mr Dunn was entitled to be given a fair opportunity to make submissions in relation to the social cost considerations and that, if he were not given that opportunity, there would have been no proper basis to deny the grant of relief sought on his application for judicial review had jurisdictional error been established. Nor would there be a proper basis for the appellant to be denied relief in the exercise of this Court's discretion on the appeal. 66 The outcome of this appeal turns on whether there is appealable error affecting his Honour's conclusion that the social cost considerations were obvious in the relevant sense.

OBVIOUSNESS 67 For the reasons given below, I do not consider Mr Dunn was deprived of an opportunity to make submissions in relation to the social cost considerations, whether as to fact or weight. I respectfully agree with the conclusion of the primary judge that the considerations obviously arose on the known material as an aspect of the risk of harm posed to the Australian community. 68 Mr Dunn was expressly invited to address the Minister on the topic of harm that might be caused to the Australian community should he reoffend in a similar fashion. More specifically, he was notified that the harm under consideration was that which may be caused to "individuals, groups and institutions". Nothing in Direction 65 confined the topics under consideration to that harm that might be suffered only by the immediate victims of a future offence. 69 It ought reasonably to have been understood by Mr Dunn that such an enquiry would not be undertaken in the abstract but by reference to the very offending that had rendered him unable to satisfy the Minister that he passed the character test. 70 In that respect, the invitation to make submissions necessarily drew Mr Dunn's attention to the types of harm that his prior offending may have caused. There is nothing in the Minister's correspondence that could or should have been understood by Mr Dunn as narrowing that inquiry in any way. All types of harm were to be addressed. 71 For Mr Dunn it was submitted that detailed particulars must be provided of the types of harm within the Minister's contemplation so as to avoid a person in his position having to engage in wide-ranging guess work as to the Minister's possible reasoning process. I do not agree. 72 It was not necessary to expressly notify Mr Dunn that the matters that may be considered by the Minister included inferences that obviously arise in respect of a sufficiently defined topic and on the basis of all of the known facts. The known facts were that Mr Dunn's past offending had caused him to have dealings with the police and those involved in the administration of the criminal justice system, including persons who had made assessments of the degree of depravity of the child exploitation materials and hence the seriousness of his conduct. In light of those known facts, there is nothing factually obscure about the social cost considerations, nor is there anything novel about the Minister's inferences about them. It ought to have been apparent to Mr Dunn that a person not sharing his prurient interest in child exploitation might possibly find images depicting the rape and torture of children so shocking and disturbing as to be psychologically harmed. It was also obvious that Mr Dunn's past engagement with the criminal justice system had imposed an economic burden on the Australian community. Accordingly no unfairness arises from any failure to give more detailed particulars of the issues to be considered by the Minister than that which was provided to Mr Dunn in advance of the Minister's decision.

No false comfort 73 I do not consider it significant that the Minister had earlier made a decision not to revoke the original decision which had subsequently been quashed by this Court. Nor is it significant that the earlier decision did not take account of the social cost considerations as an aspect of the risk of harm presented to the wider Australian community should Mr Dunn reoffend. 74 Between the time of the quashing of the first of the Minister's decisions and the time of the decision now subject to this appeal, Mr Dunn had been found in possession of newspaper clippings depicting children of the very age he had admitted to having an interest in. In light of that evidence, the prospect of Mr Dunn reoffending was given renewed emphasis in the Minister's subsequent decision. There was nothing in the Minister's advance correspondence to suggest that the Minister would assess Mr Dunn's prospects of reoffending as low. Nor did the correspondence contain any express or implied representation that the wider social ramifications of any future offending would not be taken by the Minister in his consideration of the risk of harm to the Australian community presented by Mr Dunn's continued presence here. 75 The most that could be said is that Mr Dunn and his advisers made an erroneous assumption that the subsequent decision would be based on no different considerations than the first decision, unless Mr Dunn was first given express notice to the contrary. To the extent that there was any such assumption, it has not been shown that it was induced by the Minister. The Minister's processes cannot be shown to be unfair merely because the assumption was erroneous. 76 Counsel for Mr Dunn avoided the terminology of a legitimate expectation as the source of the Minister's obligation to give advance notice of the social cost considerations. To my mind, however, Mr Dunn's complaint that he had been given "false comfort" by the Minister's prior decision is no different from a complaint that the prior decision gave rise to a legitimate expectation that the Minister would reason in a particular way upon the re-exercise of the power. Whether expressed in the language of false comfort or a legitimate expectation, the argument cannot succeed on the facts. The primary judge was correct to reject it.

The decisions in Durani and Jione 77 The Full Court in Durani rejected a submission that an allegation of procedural unfairness must be resolved by reference to earlier decided cases (at [70]): … In each case, in our opinion, the court must evaluate the circumstances in order to decide whether or not there has been procedural unfairness. It is impermissible to reason that because there are a number of factual similarities or factual overlap between an earlier case and the facts presently under consideration that one result or the other should thereby follow. 78 Somewhat ironically, the third ground of appeal relied on by Mr Dunn contends that the primary judge erred in concluding that the social cost considerations were obvious because his Honour wrongly distinguished Durani and the judgment of Buchanan J in Jione. 79 The two judgments may be summarised as follows. 80 In Durani the Full Court (Besanko, Barker and Robertson JJ) allowed an appeal from a decision made personally by the Minister not to revoke a decision to cancel Mr Durani's visa. 81 Mr Durani was a medical practitioner. He had resided in Australia on a skilled independent visa. He was convicted of sexual offences involving a patient in his care. The Administrative Appeals Tribunal decided not to exercise a power under s 501(2) of the Act to cancel Mr Durani's visa. The Minister set the Tribunal's decision aside and cancelled Mr Durani's visa under s 501A(2) of the Act. The valid exercise of that power required the Minister to be satisfied that cancellation of the visa was in the national interest: s 501A(2)(e). If so satisfied, the Minister retained a residual discretion as to whether or not the visa should be cancelled. 82 The Minister concluded that it was in the national interest to cancel Mr Durani's visa because, relevantly, Mr Durani's offending had reduced confidence in the nation's health care system. Further, the Minister held that the offending had brought the reputation of Australia's skilled migration program into disrepute and had undermined public confidence in that program. On judicial review, Mr Durani argued that he had been denied procedural fairness in respect of each of these matters. The primary judge concluded that the matters were obvious such that it was unnecessary for the Minister to expressly invite Mr Durani's comments in respect of them. On appeal, the Full Court said (at [63]): As to reducing public confidence in the nation's health care system, in our opinion, this aspect of the appellant's criminal offences had been expressly adverted to both in the sentencing remarks ... and in the decision of the tribunal and was self-evidently a matter that might be taken into account by the minister in deciding whether he was satisfied that the cancellation of the appellant's visa was in the national interest. … 83 The Court reached a different conclusion in relation to the Minister's finding that the offending brought Australia's skilled migration program into disrepute and therefore undermined public confidence in the program. The Court said: 66 … we accept the submission on behalf of the minister that it was self-evident that the offences the appellant had committed were committed in the course of practising the skilled occupation which formed the basis for his migration to Australia. 67 But in our opinion it does not follow that there was therefore nothing surprising or procedurally unfair in the minister taking into account that aspect of the national interest. As we have said, the criterion of 'national interest' is a broad one. That means it may be necessary for the minister to permit the visa holder, in circumstances such as the present, to make submissions about a particular aspect of the national interest which the minister may be going to take into account in assessing whether or not he is satisfied that cancellation of the visa is in the national interest. 68 In the present case, characterising the appellant's criminal convictions by reference to bringing the skilled migration program into disrepute and therefore undermining public confidence in the program and therefore its integrity was not apparent from the nature of the decision or the terms of the statutory power. We do not accept the submission on behalf of the minister that the circumstances raised a question about whether the nation is picking the right doctors to come here and that has 'at least potentially, implications for the skilled migration program' such that bringing the skilled migration program into disrepute and therefore undermining public confidence in the program and therefore its integrity was 'a natural and very unsurprising aspect of the decision that was to be made'. 84 In Jione, Buchanan J dismissed an application for judicial review of a decision of the Minister to cancel a visa on character grounds under s 501A(2) in substitution for an earlier decision of the Tribunal that the visa not be cancelled. As in Durani, it was argued that the Minister denied Mr Jione procedural fairness in respect of certain matters affecting the Minister's assessment of what the national interest required. 85 Mr Joine had been sentenced to 12 years imprisonment upon being convicted of maliciously inflicting grievous bodily harm. In his assessment of the national interest, the Minister concluded that should Mr Jione reoffend by engaging in violent behaviour, individuals and the community would be required to bear any related law enforcement and medical costs. Neither of those categories of cost had been notified to Mr Jione as potentially bearing on the outcome. 86 Buchanan J held (at [43]) that the effect of the Minister's reasoning was that any possibility of future law enforcement costs generates a national interest in avoiding the possibility, even though the risk might be low. His Honour further held (at [44]) that the Minister's line of reasoning could not have been anticipated by Mr Jione and, accordingly, Mr Jione should have been given an opportunity to deal with it. The failure to expressly afford that opportunity was found to constitute a breach of the rules of procedural fairness vitiating the Minister's decision. Buchanan J said: 54 I do not think it would have been obvious to the applicant (or should have been apparent to him) that the past economic consequences of his conduct (ie on the community as a whole), or the possible future economic cost to the community of some further offence, would be taken into account, whether as relevant to the national interest or otherwise. … 56 … it should not be accepted that it would have been apparent to the applicant that the possibility of the unknown economic consequences of unknown future conduct arising from a low risk of re-offending would engage some concept of Australia's national interest leading to the Minister substituting a different decision to the AAT. 87 It is true that the facts and circumstance arising in Durani and Jione bear some resemblance to the facts and circumstances arising before the primary judge in Mr Dunn's case. 88 However, as counsel for Mr Dunn properly acknowledged, the decision of the Full Court in Durani does not establish a binding precedent to which the primary judge was bound and which the primary judge failed to apply. Counsel's argument was more nuanced. 89 It was submitted that the judgment in Durani provided "guidance" to which the primary judge ought to have adhered. That submission is rejected. The primary judge was either bound to follow the decision as a matter of legal principle, or not. Otherwise, the task of the primary judge was to apply uncontroversial legal principle to the particular facts of the case, having particular regard to the statutory context. No error in the application of the law to the facts is shown. 90 For the same reasons, I would reject the submission that the primary judge was either bound to follow the decision of Buchanan J in Jione or otherwise that he ought to have followed the same reasoning unless satisfied that it was plainly wrong: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75] (and the cases cited therein). 91 Even if it could be shown that the outcomes in authorities were difficult to reconcile with each other, that circumstance would not establish appealable error on the part of the primary judge. 92 It follows that the conclusion of the primary judge that the social cost considerations were obvious in the relevant sense is not shown to be affected by appealable error. Accordingly, the appeal should be dismissed with costs. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.

STEWARD J: 93 It is with regret that I am unable to agree with the reasons for judgment of the learned presiding judge. I have otherwise had the opportunity of reading the draft reasons for decision of Charlesworth J. I respectfully agree with her Honour's decision to uphold the judgment of the learned primary judge and agree with her conclusion and reasons concerning the obviousness of the "social cost consideration" here. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.