Evidence of the Victim's Mother
69 The applicant contended that he was denied natural justice by not being afforded an opportunity to respond to evidence which was given before the AAT and which was specifically brought to the attention of the Minister by the Issues Paper. The evidence in question is summarised at [39]-[40] of the decision of the AAT. Those paragraphs were dealt with under the heading "Risk of Recidivism" and are in the following terms:
Mr Gbojueh has no previous convictions and therefore no criminal history to be considered. However, despite objection by Mr Hurley, I accepted into evidence a witness statement prepared by Ms Jaylee Browne, the mother of the victim. In that statement Ms Browne said that she recalled one night after having had sex with Mr Gbojueh when he said: That I felt like a 14 year old when we had sex. Ms Browne said she asked him how he knew what a 14 year old felt like when having sex, but he passed it off as a joke. Ms Browne also said that she had received calls from friends who had known Mr Gbojueh in the refugee camp when he was in Ghana. She then said:
…I learned that members of the Baptist church in the camp had known that Thomas [Mr Gbojueh] had abused young girls in the camp in Ghana, and had warned him to change his behaviour before he came to Australia.
Although I have referred to Ms Browne's testimony, Mr Gbojueh does not have a past criminal history and there are problems accepting what Ms Browne said in evidence. That is because the statement regarding the 14 year old was not put to Mr Gbojueh in cross-examination thus giving him the opportunity to refute it. The statement regarding the abuse of young girls in the camp in Ghana was put to Mr Gbojueh directly in cross-examination and when asked whether he had abused children in that camp, his response was No sir. Of course, Ms Browne's testimony is based on the hearsay statements of unidentified persons. It would be unfair and unsafe for me to place any weight on that at all. Judge Clayton also referred to statements made by the victim's mother regarding his conduct in Liberia. He said: I disregard the statement of the mother with respect to her belief as to your conduct in Liberia.
70 A somewhat inaccurate account of the evidence of the victim's mother and the way in which the AAT dealt with that evidence was set out at [35] of the Issues Paper under the heading "Criminal History". That paragraph was in the following terms:
Mr GBOJUEH has no other convictions in Australia. You may wish to note that the Tribunal accepted into evidence a statement by the mother of the victim that Mr GBOJUEH had commented to her that their sex had 'felt like a 14 year old' and that other people who had known Mr GBOJUEH in the refugee camp in Ghana had told her that he had abused young girls there. The Tribunal noted that Mr GBOJUEH had denied this when it was put to him and found that, as the evidence was based on hearsay, it would be wrong to give it any weight (Attachment B).
71 The attachment referred to in that paragraph was the decision of the AAT.
72 The applicant contended that he was not given any notice that the evidence of the victim's mother referred to in the Issues Paper would be put to the Minister. He contends therefore that he was denied the opportunity to respond to that material. It was not in issue that in the exercise of the power conferred by s 501A(2) the rules of natural justice apply: see s 501A(4). The applicant therefore contended that he was denied procedural fairness and that jurisdictional error was established.
73 The Minister contended that the applicant had been given notice of and was aware of the evidence in question and was aware that it would be before the Minister. The Minister relied on the "Notice of Intention to Consider Cancellation of Your Visa under sub-section 501A(2) of the Migration Act" ("the Notice") provided to the applicant by the Minister on or about 1 June 2011. The Minister contended that the Notice notified the applicant that in considering whether to exercise his discretion to cancel the applicant's visa, the Minister would take into account the decision of the AAT. As that decision set out at [39] (reproduced above) the evidence about which the applicant complains, the applicant was informed that the evidence in question would be placed before the Minister.
74 The Notice advised that the Minister intended to consider whether to set aside the decision of the AAT and to cancel the applicant's visa pursuant to s 501A(2) of the Act. The Notice explained to the applicant the preconditions for the exercise of power under s 501A(2). The Notice then included a heading "Information to be considered". Under that heading a list of some twenty six items identified various reports, letters and other material including, in the last bullet point, the decision of the AAT. The Notice informed the applicant that the list set out "information that the Department currently holds that the Minister will take into account in considering whether to exercise the discretion to cancel your visa". The Notice further advised the applicant that he had the opportunity to "comment on the information that will be considered by the Minister and to submit additional information, if you wish".
75 The Statement of Reasons did not refer to the evidence of the victim's mother. The Minister did however state at [29] that he had considered "all evidence available to me".
76 The fundamental principles governing procedural fairness are well known and were not in contention. What is required by procedural fairness is a fair hearing, not a fair outcome and the relevant question is not whether the decision-maker's factual conclusions were right but whether the process was right: SZBEL and Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25] (Gleeson CJ, Kirby, Hayne, Callanan and Heydon JJ).
77 As Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [19]:
The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached.
78 In Re Refugee Review Tribunal and Another; ex parte Aala (2000) 176 ALR 219 McHugh J stated at 101 that:
One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided.
79 The basic principle is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: VAAD at [56]. That opportunity need only be given in relation to information that Brennan J described in Kioa v West (1985) 159 CLR 550 at 629 as "credible, relevant and significant". "Credible, relevant and significant", is to be understood as referring to information which cannot be dismissed from further consideration by the decision-maker before the making of the decision. That is, information which is "evidently not credible, not relevant, or of little or no significance to the decision that is to be made": VEAL at [17] and see at [20].
80 There is no issue before me as to whether the information in question was of the kind which enlivened the obligation to notify the applicant. The evidence of the victim's mother was adverse to the applicant and highly prejudicial. It was material that related to an issue critical to the decision, namely, the prior offending of the applicant and therefore the potential risk to the Australian community of the applicant being permitted to remain in Australia. It was not suggested by the Minister, and in my view correctly so, that the evidence of the victim's mother was material to which the Minister could not give credence. The evidence was capable of influencing the decision and the manner in which attention was drawn to it by the Issues Paper (including the heading "Criminal History") seems to have been calculated to influence that decision.
81 Nor does the Minister seek to counter this challenge by contending that the Minister did not actually take into account the evidence of the victim's mother in arriving at the decision. Given the Minister's statement that he took all of the evidence available to him into account, it would be difficult for that contention to be sustained. In any event, as Wilson J said in Kioa at 603, it is not necessary to show that the material did work to the prejudice of the person affected by the decision, "it is enough to show that the way was open for it to do so": see further VEAL at [18] and [19].
82 The only question that really arises which I need to determine, is whether notice that the Minister would consider the evidence of the victim's mother was given to the applicant so that he could respond to it. That requires consideration of the nature and content of the obligation upon the Minister to have provided the applicant with notice in the circumstances of the case at hand.
83 In order to consider the circumstances of the particular case, it is necessary to reflect firstly upon the statutory scheme pursuant to which the decision was made. Section 501A(2) only applies if an "original decision" made either by a delegate of the Minister or the AAT has been made. The provision empowers the Minister to "set aside the original decision".
84 The Minister's power is not exercised in a vacuum. It may only be exercised subsequent to the making of the original decision. The Minister is not confined in the considerations he may take into account by the issues that were dealt with in relation to the original decision. However, the original decision, the process that led to it, and the reasons for it, form a backdrop or context which helps to give shape to the nature and content of any duty to provide notice of the issues and material which the Minister intends to consider, including by assisting to determine whether no warning at all was required because "the risk necessarily inheres in the issues to be decided".
85 That prior dealing with the issues raised is conducive to an understanding of what assumptions may reasonably be expected of persons likely affected, as to what the Minister will likely take into account in determining whether the original decision should be set aside.
86 The reasoning of the High Court in SZBEL demonstrates how assumptions of the kind I have in mind arise. In that case, s 425 of the Migration Act was being considered in the context of the statutory scheme by which the Refugee Review Tribunal is empowered to review decisions made by a delegate of the Minister. At [35] the Court said:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
87 Those conclusions were reached by the Court by reference to the particular statutory language utilised by s 425 of the Migration Act and in particular "the issues arising in relation to the decision under review". Analogous language is not employed by s 501A(2) but the process of a decision being "set aside" and being reviewed bear some similarity. Both processes begin with and may reasonably be expected to involve consideration of an earlier decision including the process by which it was reached and the reasons given for it.
88 The scheme of which s 501A(2) is a part, contemplates that an original decision may be made by the AAT. That scheme contemplates and provides for an application to the AAT seeking the review of an earlier decision of a delegate of the Minister made under s 501 (s 500(1)(b) of the Migration Act); ordinarily, there will be a hearing before the AAT (s 34J of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"); the hearing will be conducted in a quasi-judicial setting involving parties (s 30 of the AAT Act), the possible representation of parties (s 32 of the AAT Act), the calling of evidence and the examination and cross-examination of witnesses, in circumstances where the AAT is bound to act judicially and whilst not bound by the rules of evidence is required to have regard to the rules of evidence and the rationality behind them to assess the weight to be given to any evidence (s 33(1)(c)) of the AAT Act and Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 256-257 (Brennan J); and on appeal Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 660 at 686, 689-690 (Deane J with whom Evatt J agreed); and where the AAT is obliged to make findings and, when requested, to provide a "statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision" (s 28(1) of the AAT Act).
89 By reason of that context, a visa-holder facing a s 501A(2) process involving whether a decision of the AAT would be set aside, would likely be operating by reference to a set of expectations or assumptions. Such a person would likely assume that the issues before the AAT may be reconsidered by the Minister. Such a person is not likely to assume that the Minister would reconsider an issue dealt with by the AAT, by reference to evidence which the AAT rejected.
90 The duty to act fairly requires that in circumstances where the Minister intends to consider evidence adverse to a visa-holder which has been rejected by the AAT, the visa-holder should be notified of that intention.
91 In this case, no such notification was given to the applicant. All that the applicant was told was that the Minister would consider the decision of the AAT. Whilst the AAT decision refers to the evidence of the victim's mother, the AAT decision rejects that evidence. The AAT decision was not relevantly adverse to the interests of the applicant by reference to that evidence and a mere reference to the decision, without more, could not be regarded as fairly putting the applicant on notice that the Minister intended to consider evidence which the decision had dismissed.
92 Procedural fairness required the Minister to put before the applicant "the substance of matters" that the Minister intended to consider: Plaintiff M61/2010E v Commonwealth (2010) 85 ALJR 133 at 150-151 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). The substance of the legal and factual concern needed to be disclosed: Dunghutti Elders Council (Aboriginal Corporation RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] 195 FCR 318 at [64] (Keane CJ, Lander and Foster JJ). That was not done in this case and as a result the applicant was not given an opportunity and did not take up an opportunity to respond to the evidence of the victim's mother. A "practical injustice has been shown": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] and [38] (McHugh and Gummow JJ).
93 That brings me to the question of whether there is a proper basis for refusing relief. In Aala, McHugh J at [104] (in a passage later referred to by the Full Court in VAAD at [80]) said:
Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 when it said that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial". Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because "[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" (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).
94 The Full Court in VAAD at [81] further relied upon what Kirby J said in Applicant NAFF of 2002 v MIMA (2004) 221 CLR 1 at [85]:
Every person, in respect of whom material decisions are made by a repository of public power conferred by the Parliament, is ordinarily entitled to have such power exercised in accordance with law. That includes, relevantly to this case, in accordance with the requirements of procedural fairness. The ultimate outcome of such insistence on fair procedures might eventually be the same. But where the issue is whether additional evidence and submissions might have affected the outcome of the decision-maker's consideration of the matter, it cannot normally be said with certainty that affording such an opportunity was futile.
95 Whilst in the absence of the breach a different outcome may not have been probable, I am unable to conclude that the denial of procedural fairness could have had no bearing on the decision. The evidence of the victim's mother was highly prejudicial and went to what the Statement of Reasons shows to have been the primary concern of the Minister - the prospect that the applicant would re-offend. It is relevant but not determinative to observe that the Minister had before him evidence of the applicant's denial in the AAT of the allegation that he abused children in the refugee camp in Ghana. However, the applicant was not given the opportunity in the AAT to refute the other evidence of the victim's mother and there was no response of any kind from the applicant before the Minister on that evidence. I cannot exclude the possibility that the evidence of the victim's mother had a bearing upon the Minister's decision.