Hempenstall v Minister for Home Affairs

The visa cancellation process 8 On 1 June 2017, the Department gave Mr Hempenstall a notice of the Minister's intention to consider cancellation of his visa under s 501(2) of the Act. The notice informed Mr Hempenstall that the Department held information about his criminal history that indicated that he had a substantial criminal record within the meaning of s 501(7), and that as a result he might not pass the character test by virtue of s 501(6)(a) of the Act. That was because of his sentence of imprisonment for 13 months on the three counts of child pornography. The notice enclosed a copy of Direction 65 - Visa Refusal and Cancellation under s 501. It informed Mr Hempenstall that if the Minister made the decision personally, he was not required to give consideration to Direction 65, although it provided a broad indication of the types of issues that he might take into account. It also informed Mr Hempenstall that, if the decision-maker were a delegate, then the delegate had to follow Direction 65 (as s 499 of the Act provided). Clause 9.1.2 in Part A of Direction 65 stated: 9.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. (2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: i. information and evidence on the risk of the non-citizen reoffending; and ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). (emphasis added) 9 The notice informed Mr Hempenstall that he should read Direction 65 carefully, and that he needed to address each paragraph in Part A that was relevant to his circumstances, but he also could provide other information that he felt the decision maker ought to take into account, including providing letters of support from others. The notice also included a personal circumstances form that it asked Mr Hempenstall to complete, his National Police Certificate (that contained his current criminal record) and the sentencing remarks. 10 The notice told Mr Hempenstall that those documents contained information which the decision-maker might rely on to decide whether he passed the character test and, if he did not, whether his visa should be cancelled. 11 Mr Hempenstall signed the personal circumstances form and dated it 16 July 2017. He returned it to the Department on 21 July 2017. In the form he responded to the question: "Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?" with the following answer: While there are no excuses, I went through a very low point in my life with breakdown of my relationship. I turned to drugs and alcohol to suppress my anxiety and depression which dragged me to a further low point. I withdrew from friends and family and found myself addicted to Internet pornography. This behaviour spiralled further out of control until I reached the lowest point which led to my arrest and consequent prison term. (emphasis added) 12 He wrote, in answer to the question about the likelihood of his reoffending, that "the original behaviour was not in my normal character". Mr Hempenstall also wrote that "[p]rison is a very big deterrent" and the thought of deportation was "a very scary prospect as I have lived here all my life". 13 Mr Hempenstall also recorded in the personal circumstances form that he had sought professional help from a psychologist following his being charged (being Dr Thomson, to whose treatment the judge referred in the sentencing remarks), and had undertaken treatment every fortnight for ten months until he was satisfied that he fully understood the consequences of his actions and behaviours. One of the letters in support that Mr Hempenstall provided in response to the notice (and was before the Minister) was that of his sister dated 17 July 2017. In it she said: During the period leading up to my brother's offence I recall he was not himself and had turned to heavy alcohol usage… The issues I have raised most definitely contributed to my brother's behaviour and conduct leading up to his breaking the law. 14 At no point in the material which Mr Hempenstall provided in answer to the notice did he supply any information that referred specifically to his having undertaken or completed any treatment to address his previous alcohol and substance abuse tendencies, when under stress or otherwise.

The Minister's reasons 15 Relevantly, the Minister found that Mr Hempenstall: … [h]as not provided a statement or any evidence in regards to his rehabilitation from substance abuse. I accept that Mr Hempenstall has made some good progress in his rehabilitation, however in the absence of any current information relating to the substance abuse which exacerbated Mr Hempenstall's offending, I find that there is a risk in Mr Hempenstall engaging in substance abuse which increases the risk of his reoffending. …While the risk of Mr Hempenstall reoffending is low, his offending occurred during a period of substance abuse and during a stressful time in his life stop since his counselling, he now understands those matters and is learning to manage them. Although Mr Hempenstall has this insight, the support of his family and friends, his business and stable accommodation, I am concerned with Mr Hempenstall's possible future substance abuse, particularly if he finds himself in stressful situations, and I am unable, having regard everything before me, to be satisfied that there is no risk, of his reoffending in a similar manner. Having regard to the available information, I find that there is an ongoing risk, albeit low, that Mr Hempenstall will reoffend and I find that although the risk that Mr Hempenstall will reoffend is low, if that risk were to eventuate the offending could result in harm to Australian children, albeit indirectly. (emphasis added) 16 After weighing all the relevant considerations in Mr Hempenstall's favour that could bear on the exercise of his discretion not to cancel the visa, the Minister found that he could not rule out the possibility of further offending by Mr Hempenstall, which was a risk of harm that the Australian community should not tolerate. He found that this consideration outweighed the countervailing considerations in Mr Hempenstall's favour, including the impact on his family members, his claimed hardship if returned to the United Kingdom, the length of time he had made a positive contribution to the Australian community through his own employment, his community work and his employment of others. 17 The Minister concluded that, substantially because of the lack of evidence before him about Mr Hempenstall's rehabilitation from substance abuse, he represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations. For that reason the Minister decided to exercise his discretion to cancel Mr Hempenstall's visa.

The primary judge's decision 18 Before the primary judge, Mr Hempenstall challenged the Minister's decision on the ground that he had not been afforded procedural fairness in two respects. Only the second is relevant for the purposes of this appeal. That ground was that the Minister had made a critical finding that Mr Hempenstall could abuse substances in the future and may reoffend, where such a finding was not an obvious and natural conclusion to draw from the material in the notice provided to Mr Hempenstall. 19 Mr Hempenstall contended that the sentencing remarks would have conveyed that he had made significant gains with the psychologist in his treatment for substance abuse, albeit that this treatment was still at its early stages in 2012. He contended that he had put before the Minister evidence of attending a psychologist every fortnight for 10 months after being charged, and only ceasing his treatment once satisfied that he understood the consequences of his actions and behaviours. He contended that the material he had placed before the Minister all suggested that he had substantively rehabilitated and that nothing had occurred following his sentencing that would suggest that he might engage again in substance abuse. Accordingly, Mr Hempenstall argued that procedural fairness required the Minister to have put him on notice that his "potential future substance abuse and rehabilitation was a… or arguably the critical issue" for the Minister in the exercise of his discretion in accordance with the principles in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. 20 Her Honour dismissed that ground of review. The primary judge found that Mr Hempenstall would have been aware, on reading Direction 65, including cl 9.1.2, that the decision-maker was likely to consider and assess the risk that he might again commit a child pornography related offence or offences and that, if there were such a risk, the decision-maker would take into account the available information and evidence relevant to that risk. Her Honour also found that on reading Direction 65 carefully, Mr Hempenstall would have appreciated that the decision-maker might find that any risk that he might reoffend was unacceptable. She held that, bearing in mind his conviction for what were undoubtedly serious offences, Mr Hempenstall should have been aware that it was important to place all relevant information and evidence that he could before the decision-maker so as to satisfy him or her that there was no risk that he would reoffend. Given what the sentencing judge said in his remarks, which were part of the material provided to Mr Hempenstall with the notice, her Honour said that he would have been aware that the focus of the decision-maker's concern regarding the risk of his reoffending was that he might repeat the conduct (including substance abuse) that had resulted in his convictions for child pornography offences. Her Honour found that: As indicated below, the sentencing remarks contained information adverse to the applicant that, on any view, was "credible, relevant and significant" to the issue of substance abuse. The very fact that these remarks were sent to the applicant with the June 2017 Notice should have indicated to the applicant that the remarks, including those with respect to substance abuse, could be used by the decision-maker in making a decision under s 501(2) of the Migration Act. If the applicant had any doubt about this, however, the June 2017 Notice expressly stated that Direction 65, the applicant's National Police Certificate and the sentencing remarks "consist of information … which the decision-maker may rely on to decide whether you pass the character test; and if not, whether your visa should be cancelled". 21 Her Honour accepted that procedural fairness required that Mr Hempenstall be given the substance of the sentencing judge's remarks because they were adverse information of a credible, relevant and significant kind available to the decision-maker. She held that because the full sentencing remarks had been given to Mr Hempenstall with the notice, he was made aware that the decision-maker could rely on those remarks in the exercise of the discretion under s 501(2) and that they were relevant to the prospective decision. The primary judge concluded: As observed above, the applicant would have been made aware by Direction 65 that the risk of his reoffending was a matter that would be considered if the decision-maker were a delegate and could be considered if the decision-maker were the Minister. In contrast to Stowers and Degning, in the circumstances of the present case, it does not seem to me that procedural fairness required the decision-maker to do more to bring the issue of the applicant's substance abuse to his attention. This was because the sentencing remarks made it tolerably clear that the sentencing judge considered that substance abuse had played a not insignificant part in the matrix of circumstances that led to the applicant's offending, and that his Honour had specifically found that as at 17 September 2012 the applicant's treatment for substance abuse was only in its "early stages". Given the serious consequences of a decision to cancel his visa, the applicant can be taken to have read these remarks and thus to have been made aware that the sentencing judge had found that substance abuse had contributed to his offending and had intimated that the applicant would require further treatment to address this particular issue. He would therefore have been on notice that his substance abuse could well be an issue for the decision-maker to consider in exercising the discretion in s 501(2) of the Migration Act. This was because, on any view, in assessing the risk of the applicant's reoffending, it was evidently open to the decision-maker to consider whether the factors that had led to his past offending might lead to his future reoffending. The June 2017 Notice contained a clear invitation to the applicant to supply responsive material. Direction 65 referred to an assessment of the risk of reoffending being made on information and evidence available to the decision-maker. It was clearly open to the applicant to make submissions and provide evidence concerning the substance abuse issue. I am confirmed in my view that there was nothing more required to be done to put the applicant on notice of the substance abuse issue in order that he might address it through submissions and evidence by the fact that in completing his personal circumstances form the applicant himself recognised that the issue of substance abuse might impact on an assessment of the risk that he would reoffend. (emphasis added) 22 The primary judge then set out the questions and answers at [11]-[12] above. Her Honour found that it was open to the Minister to find, as was the fact, that Mr Hempenstall had not provided any evidence regarding his rehabilitation from substance abuse. In those circumstances, her Honour found that Mr Hempenstall had been accorded procedural fairness and that this ground should be dismissed. Her Honour, having dismissed the other ground, consequently dismissed the application for review of the Minister's decision with costs.

This appeal 23 The notice of appeal raised two grounds challenging the primary judge's decision, namely that her Honour: (1) had mischaracterised Mr Hempenstall's submission that the issue of potential future substance abuse "was the sole significant factor", when earlier in her reasons she had recorded his submission that his "potential future substance abuse and rehabilitation was a… or arguably the critical issue", and had applied the wrong test in finding that potential future substance abuse was "a critical issue on which the decision was likely to turn" contrary to Degning v Minister of Home Affairs (2019) 270 FCR 451 and Minister for Home Affairs v Smith [2019] FCAFC 137; (2) should have, but failed to, apply the reasoning in Degning 270 FCR 451, Smith [2019] FCAFC 137 and Stowers v Minister for Immigration and Border Protection (2018) 265 FCR 177, because her Honour should have found that it was not an obvious and natural conclusion to draw from the material with which Mr Hempenstall was provided that a critical issue on which the decision was likely to turn was the possibility that he could engage in substance abuse in the future. The ground asserted that this issue ought to have been drawn to his attention for him to specifically address.

Mr Hempenstall's submissions 24 As to the first ground of appeal, Mr Hempenstall argued that her Honour had mischaracterised his submission that the issue of future substance abuse "was the sole significant factor". He contended that the submission that her Honour should have addressed, which she had recorded earlier in her reasons, was that his "potential future substance abuse and rehabilitation was a… or arguably the critical issue" and that her Honour should have found that this was a critical issue on which the decision was likely to turn. 25 As to the second ground, Mr Hempenstall repeated his submissions to the primary judge. In addition, he argued that a reasonable person in his position would not have understood, on the material provided with the notice, that it was an obvious and natural conclusion that a critical issue on which the decision-maker's decision might turn was the possibility that he could engage in substance abuse in the future and that, accordingly, the risk of his further offending could not be ruled out. He contended that it was obligatory for the Minister to have drawn this issue to his attention. He submitted that this was the more so because the Minister, unlike the delegate, was not bound to consider the question in accordance with Direction 65 and could have regard to a wider range of matters than in the Direction. 26 He submitted that Direction 65 itself did not refer to substance abuse as a factor to be considered, or that the standard that the decision-maker could apply was that there was "no risk" of reoffending. He argued that the potential of his engaging in substance abuse appeared to be the only matter that the Minister relied on to find that he could not rule out the risk of Mr Hempenstall reoffending. He contended that Direction 65 offered no guidance about what particular offending might meet the standard of "no risk of reoffending". He argued that, without diminishing the accepted seriousness of his own crimes, his sentence had "only just" met the definition of "substantial criminal record" and that it was not obvious or natural to assume that those crimes were sufficiently serious to require him to satisfy the decision-maker that there was no risk of his further reoffending. 27 Mr Hempenstall argued that there was nothing in the personal circumstances form that relieved the Minister of his obligation to disclose that the issue of his possible future substance abuse was one on which his decision was likely to turn, again because such a conclusion was not a natural and obvious one on the material enclosed with the notice. 28 Mr Hempenstall submitted that while his offending had occurred in the context of substance abuse, the sentencing remarks revealed that he had by then taken significant steps to turn his life around. He argued that five months had passed between his arrest and sentence but that in the personal circumstances form he had informed the Minister that he had sought professional help from a psychologist and had continued treatment every fortnight for ten months until he was satisfied that he fully understood the consequences of his actions and behaviours. He argued that, while a trained lawyer may have perceived from the sentencing remarks a specific need to address the possibility of future substance abuse in connection with the potential for future reoffending, a reasonable person in Mr Hempenstall's position would not have seen this as a natural and obvious conclusion from the material. 29 In oral submissions Mr Hempenstall's counsel argued that the reasoning in cases such as Degning 270 FCR at 455 [12]-[13] commanded the conclusion that his attention should have been directed to the critical issues or facts on which the decision was likely to turn, where those issues or facts were not an obvious and natural conclusion to draw. He argued that it was not fair, in all the circumstances, for the Minister to cancel Mr Hempenstall's visa without having directed him to the critical issue of the potential for him to reoffend if he resorted again to substance abuse. He relied on Stowers 265 FCR at 194-195 [48]-[49] to support the contention that he should have been put on notice of the need to address the issue of substance abuse. He argued that her Honour erred in failing to find that there was "an insufficient level of granularity" in the material enclosed with the notice, and that a reasonable person in his position would not have been alerted to the need to deal with the potential for substance abuse in the future, having regard to the generally positive sentencing remarks.

Consideration 30 Neither ground of appeal should succeed. Mr Hempenstall's arguments largely overlapped.

Ground 1 31 The primary judge was correct, for the reasons she gave, to find that the potential for future substance abuse was not the sole significant factor that weighed against him. That was because the Minister had regard to the seriousness of the nature of Mr Hempenstall's offending under the separate primary consideration of "Protecting the Australian Community". As the primary judge explained, the Minister found that his offending was "very serious" and that he had been "sentenced as a serious sexual offender". 32 In those circumstances, the first ground of appeal, that elevated the issue of future substance abuse to the "sole" or a "critical" issue before the Minister, is untenable. That issue was a significant, but not the only, issue that the material provided to Mr Hempenstall with the notice entitled the Minister to consider in deciding whether to cancel the visa. 33 Her Honour was also correct to dismiss Mr Hempenstall's argument that the Minister failed to accord him procedural fairness by not specifically drawing attention to his need to deal with the possibility of his future substance abuse. The sentencing remarks had addressed Mr Hempenstall's long term propensity to engage in substance abuse involving drugs and alcohol when under stress, and the role that his abuse of those substances had played in his offending behaviour. As her Honour found, his own responses to the personal circumstances form referred to the fact that he had "turned to drugs and alcohol to suppress my anxiety and depression which dragged me to a further low point".

Ground 2 34 Mr Hempenstall's arguments on ground 2 are also without substance. Her Honour made no error in her careful, detailed consideration of the second ground of review and correctly applied the authorities. Nothing put to us in Mr Hempenstall's written or oral argument identified any error in the primary judge's consideration of this matter. 35 The principles of procedural fairness govern what a decision maker must do in arriving at a decision on how a particular power will be exercised. The principles apply to the process, not the outcome, which the Parliament has left in the remit of the repository of the power: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 96 [16] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. 36 The particular content to be given to the requirement to accord procedural fairness will depend on the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160-161 [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Their Honours approved, with their Honours' emphasis (at 228 CLR at 162 [32]), the following passage from Alphaone 49 FCR at 590-591 (see also Degning 270 FCR at 455 [12]-[13] per Allsop CJ with whom Colvin J agreed, Stowers 265 FCR at 198-199 [58]-[59]): It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material 37 In NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44 at 82 [153]-[154] Buchanan J, with whom Allsop CJ and Katzmann J agreed, discussed the provision to a person of an earlier version of Direction 65 with the advice (as also occurred in Mr Hempenstall's case) that a delegate would have to follow it and that the Minister, if he were the decision-maker, may also. His Honour held that that advice: not only indicated what the applicants should address but also served to exclude from practical relevance, so far as their responses were concerned, any prospect that the Minister might rely instead on an unannounced and undisclosed consideration. These are not mere matters of form. As Gleeson CJ pointed out in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, notions of natural justice and procedural fairness are concerned with practical injustice (emphasis added) 38 Mr Hempenstall's argument, based on Stowers 265 FCR 177 and other authorities, is misconceived. Each of those cases turned on its own facts and applied the same principle as that in SZBEL 228 CLR 152, namely that ordinarily, procedural fairness will require that a person who is asked to make a submission or representation to a decision-maker in respect of a decision by which his, her or its interests may be affected, is entitled to participate meaningfully in the process. 39 As Flick, Griffiths and Derrington JJ explained in Stowers 265 FCR at 193-195 [44]-[52], in applying what Buchanan J had said in NBNB 220 FCR at 82 [156], the person whose interests may be affected, ordinarily, will be entitled to receive practical, direct and non-misleading advice, about the matters that will be relevant to the decision-maker's assessment of the outcome that the person seeks to achieve from participation in the process. We have used the word "ordinarily" in this explanation because, first, a statute may prescribe a process that displaces the common law rules of procedural fairness (as is the case under Pts 5, 7 and 7AA of the Migration Act as provided in ss 357A, 422B, 473DA) and, secondly, the circumstances of the particular case may justify or require a different process or a variation from what ordinarily would have applied: SZBEL 228 CLR at 160-161 [26]. Thus, where the decision is likely to turn on a particular issue that would not be obvious and natural to the person affected in light of the material that he, she or it is aware will be before the decision-maker, ordinarily again, the decision-maker must ensure that the person has his her or its mind alerted to the issue and is given an opportunity to address it: Alphaone 49 FCR at 590-591. In other words, the person must be given a fair "hearing" in the sense of being able to put his, her or its case to the decision-maker for consideration on all matters material to the making of the decision. 40 The notice drew Mr Hempenstall's attention to Part A of Direction 65 and to the sentencing remarks, each of which consisted of about six pages, as matters that he needed to consider in making his submissions. As her Honour correctly found, the notice informed Mr Hempenstall that he should read those materials carefully, and her Honour inferred that he did. There was no evidence that Mr Hempenstall would have had, or could have been thought by the Minister to have had, any difficulty in understanding the matters contained in the small volume of material that the notice informed him could be used as the basis on which the Minister might cancel his visa. 41 The notice's reference to Direction 65 and the sentencing remarks provided Mr Hempenstall with practical, direct and non-misleading advice about the matters on which the decision was likely to turn. The advice directed him to a small amount of material, and in particular to the significance of his offending in relation to the child pornography offences and the sentencing remarks. 42 The issue of Mr Hempenstall's substance abuse, comprising what the sentencing judge described as his "acknowledged long-term dependence on cannabis" and his "acknowledged alcohol dependence", was a central matter with which the sentencing judge dealt in the six pages of his sentencing remarks. His Honour particularly noted that Mr Hempenstall's substance abuse problems "although moderated, still need to be addressed" and that his treatment for that was "still in the early stages" (emphasis added). And, of course, his substance abuse was a central factor in his offending. 43 The sentencing remarks were replete with references to Mr Hempenstall's lengthy history of substance abuse involving drugs and alcohol, and the particular role that those substances played in his offending, which the Minister found was very serious, as was open to him. Moreover, Mr Hempenstall himself, in his personal circumstances form response, expressly referred to the role that his drug and alcohol abuse had played in his offending. Yet he said nothing there about how he had addressed any future propensity for substance abuse. 44 In those circumstances, it is impossible to see how a reasonable person in Mr Hempenstall's position could have been denied procedural fairness on the basis that he now asserts, namely that he needed to be informed that his potential future substance abuse and rehabilitation was a, or the, critical issue on which the decision whether to cancel his visa was likely to turn. It obviously was a critical issue raised squarely on the face of the material enclosed with the notice. 45 It may be that Mr Hempenstall made an error in his approach to responding to the notice which has had very significant consequences for his life. However, we are unable to perceive that this error occurred through any unfairness in the process in which the Minister arrived at his decision.

Conclusion 46 The appeal must be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares, Nicholas and Burley.