reasoning
54 In Dagli one of the bases for contentions of the existence of procedural unfairness was the statement in the issues paper there that it was open to the respondent 'to find that Mr Dagli is at a medium to high risk of recidivism'. The primary judge found that although the applicant there had been given the opportunity to comment on his rehabilitation in general terms through a questionnaire provided to him, it did not alert him to the case against him on the point. Hill J said 'had [the applicant] been aware that the conclusion to be put to the Minister was that he was likely to reoffend, it may well be that he could put to the Minister matters which might lead to the Minister taking a different view on this question'. Although his Honour decided the proceeding at first instance against the applicant, that was based on his view that a statement of reasons made available ex post facto by the Minister established that the breach of procedural fairness had not affected the outcome of the application. On appeal the Full Court found his Honour had erred in treating the statement of reasons as a complete answer to the breach. However, it found that his Honour had correctly found that the breach of natural justice had occurred as a consequence of several circumstances, of which the statement in the issues paper concerning prospects of recidivism was one.
55 In the course of its reasoning the Full Court in Dagli rejected a submission for the respondent that it was necessary for the appellant in that case to demonstrate what, if anything, he could usefully have said in response to the adverse matters set out in the issues paper. It accepted as correct the statement of Hely J in Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 at [34] which recognised that if a breach of the rules of natural justice is established, an applicant would ordinarily be entitled to relief unless the Court was satisfied that the breach could have had no bearing on the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 84 at [80]. Further, where an applicant was not informed of the case which he had to meet, that is sufficient to establish 'practical injustice' without the applicant having to prove what he would have done had he been informed of that case.
56 However, it does not follow, from this reasoning of the Full Court in Dagli nor the outcome of that appeal, that the non-provision of the statement in the Issues Paper concerning the likelihood of the applicant's recidivism necessarily gave rise to procedural unfairness as the consequence of a breach of natural justice. As was stated by Mason J in Kioa v West (1985) 159 CLR 550 at 585, cited by Hill J in Dagli at [43], 'the expression 'procedural fairness' more aptly conveys the notion of flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case'. What is centrally at issue here is whether in the particular circumstances of the applicant in this proceeding, the non-provision of the statement on recidivism was procedurally unfair because the applicant did not have the opportunity 'to know the case sought to be made against [her] and to be given an opportunity of replying to it': Kioa at 582.
57 In Dagli at first instance Hill J accepted that the applicant there could, from the letter giving notice of intention to consider cancellation, know generally the negative matters against him. Those matters were his criminal record and the sentencing judge's comments. However, he did not consider that it sufficed that the person merely be shown a copy of the Minister's Direction and be warned that matters in it would be taken into consideration. That was because the Direction was in general terms 'and hardly informs the reader which of those matters the Minister may take into account, or what emphasis may be given to the one against the other, let alone the detail of the matter which the Minister might take into account under one head or another': Dagli at first instance at [51]. At [49] Hill J said 'the real question is whether he was given the opportunity to know the case that was put to the Minister against him before the Minister made his decision so that he could answer that case'. In reaching its view that Hill J was correct in his conclusion that a breach of natural justice had occurred, the Full Court in Dagli described the assessment in the issues paper of the appellant's likelihood of re-offending as 'extraordinarily negative' and as 'directly counter to the Probation and Parole Report'. It noted that the Minister himself had rejected it when he came to prepare his statement of reasons in March 2003 and had concluded that the appellant posed only a 'low to moderate' risk of re-offending.
58 The circumstances in M238 were as follows. There the Departmental submission to the Minister concluded in relation to the issue of recidivism that it was open to the Minister to find that the applicant was at a low risk of recidivism. In a letter to the Department, it had been submitted by the applicant's lawyers that the applicant posed a negligible risk. The primary judge held that procedural fairness did not require the provision of the Departmental submission to the appellant and that the appellant's lawyers had squarely drawn to the attention of the Minister the issue of recidivism, so that the applicant had a full opportunity to deal with the issue.
59 In dismissing the appeal, the Full Court (Gyles, Conti and Allsop JJ) accepted that what was said by Mason J in Kioa at 583-585 applied, so that what procedural fairness required were fair and flexible procedures, bearing in mind the circumstances of the case, the issues involved, and the nature of the enquiry and the decision. The Court said fairness in the circumstances did not require the Departmental submission to be provided to the appellant. This was because it did not contain any adverse matter to which the appellant had not otherwise been alerted by Direction No 21, the apparent nature of the power and common sense: at [54]. In particular, the Court considered that all the issues of recidivism had been plainly drawn to the appellant's attention: at [55]. The distillation of the material into the Departmental submission was not considered by the Court to have given rise to any new adverse issue: at [56]. Therefore the Court considered there was no requirement for a further round of submissions at least where 'the submission is a measured and balanced drawing together of the relevant material'.
60 I do not read [56] in M238 of 2002 as stating as a matter of principle that no new adverse issue can arise where the author of a submission to the Minister expresses him or herself less favourably than an applicant may have wished but does so in a measured and balanced way drawing together all relevant material. It is apparent from a reading of the reasons as a whole that all the circumstances must be considered and that it is a question of fact in each case whether a new adverse issue does arise from the manner in which the submission is prepared.
61 There is some tension between the view of Hill J in Dagli at [51] that, where a decision was to be made which would be likely to have a very significant effect on a person's life, it did not suffice that the person 'merely be shown a copy of the Minister's Direction and warned that matters in it would be taken into consideration' and the approach of the Full Court in M238. Nevertheless, the critical matter in the reasoning in each case was the effect of the particular circumstances of the case in determining the requirements of procedural fairness.
62 The circumstances of the present case show the following. In the notice of intention to consider cancellation, the applicant was informed that her present criminal and general conduct were among matters to be taken into account. Her attention was brought to Direction No 21. That in turn informed her that the likelihood of recidivism was an issue and that past recidivist conduct in the circumstances of par [2.10] would be relevant. In her submission the applicant addressed issues concerning her conduct relating to her re-offending. The transcript, which was not forwarded to the applicant, contained the submissions of her counsel before the District Court. There was not at that time and there is not now any contest as to the accuracy of what was put to the sentencing judge in the transcript. The statement on recidivism in the Issues Paper appeared after reference to the convictions of the applicant as well as the extract of the transcript on the applicant's sentencing on 9 November 2000.
63 In relation to the non-supply of the transcript, it is the case that the applicant gave the instructions which led to the submissions made on that occasion. She was capable therefore from her own knowledge of what had occurred to her and of identifying anything to be raised in relation to the sentencing remarks in terms of issues identified by the Minister's Direction. It is clear that the applicant would have been aware of the general adverse matters before her. However, it cannot be safely inferred that she would have been aware of the text of the portions of the transcript quoted in the Issues Paper. Nevertheless, that alone would not establish procedural unfairness as it requires consideration in relation to its connection to the statement on recidivism in the Issues Paper.
64 In relation to whether the non-notification of the finding of the high risk of the likelihood of recidivism should have been communicated to the applicant, I see the position as follows. On the view of Hill J in Dagli, non-communication of that opinion meant that the applicant was not alerted to the nature of the case against her on this point. The Full Court in Dagli based its view on the negativity of the assessment when compared to the Probation and Parole report in that case. In terms of what was said in M238, there was present in Dagli a new adverse issue which had arisen. That was not the case in M238 because no new adverse issue arose. Here, however, the statement in the Issues Paper that the applicant was at high risk of recidivism ran 'directly counter' to the Ministry of Justice Report of 6 February 2001: Dagli (Full Court) at [81]. A new adverse issue was therefore raised by the Issues Paper. Failure to draw it to the attention of the applicant was therefore a breach of natural justice. As with Dagli (Full Court) at [82], it is at least arguable that had the appellant been told of the view of her high risk of recidivism, she may have been in the position to meet that allegation given the content of the Ministry of Justice Report. Applying what was said by Hely J in Tuncok and approved by the Full Court in Dagli at [91], I am therefore not satisfied that the breach could have had no bearing on the outcome. In any event, as Tuncok makes apparent, it is not for the applicant to now demonstrate how that might have been the case.
65 I accept that in Dagli other circumstances were at issue. Here, however, the highly adverse assessment of the risk of recidivism was clearly central to the adverse case against the applicant.
66 As the decision to cancel the applicant's visa was made in breach of the rules of natural justice, the decision was made without jurisdiction and is not a privative clause decision pursuant to s 474 of the Act. The amended application should therefore be granted on the above ground of procedural fairness.