Ground 2 - Failure to take into account a relevant consideration
44 The applicant submits that he is stateless in the light of the "firm decision taken by the ICA, the confirmation given by the High Commission to PNG and the applicant's failed deportation".
45 The applicant contends that his statelessness was a relevant consideration and of such significant weight and materiality that it should have been taken into account by the Minister. He submits that it should not have been overlooked or disregarded without comment by the Minister in a proper determination of the non-revocation decision.
46 The difficulty with these submissions is that the Minister did not accept that the applicant was stateless. The Minister proceeded on the basis that there was uncertainty as to the applicant's PNG citizenship status. That determination by the Minister is the subject of Ground 4 in the Application.
47 Ground 2 has not been established.
Ground 3 - Procedural fairness
48 The content of the obligation of procedural fairness in a particular case is determined by "what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made": Minister for Immigration and Border Protection v WZARH and Another (2015) 256 CLR 326; [2015] HCA 40 at [30] (Kiefel, Bell and Keane JJ). Procedural fairness is not an abstract concept. It reflects a concern of the law to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 (Ex parte Lam) at [37] (Gleeson CJ).
49 Whether any failure to give an applicant the opportunity to respond to adverse information relied upon by a decision-maker gives rise to a denial of procedural fairness depends upon a range of factors, including the importance of the material to the ultimate decision and the nature of that material. The fact that there has been no opportunity to respond to information that is "purely factual and entirely incontrovertible" or "so blindingly obvious as not to require any comment or submission" will be of little or no significance: Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 (Applicants M1015) at [54] (Weinberg J).
50 As a general principle, a decision-maker has an obligation to put adverse information to an applicant that is "credible, relevant and significant to the decision to be made": Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629 (Brennan J); Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at [15] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
51 There is conflicting authority on whether an applicant complaining of a lack of procedural fairness bears a positive onus to establish that they would have taken a different course and that they had thereby suffered "practical injustice": see Applicants M1015 at [52]-[53] (citing Ex parte Lam; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; J Basten QC 'Constitutional elements of judicial review' (2004) 15(3) PLR 187 at 195-8); Minister for Immigration and Citizenship v SZQKB (2012) 133 ALD 495; [2012] FCA 1189 at [38] (Yates J). On balance, I do not consider that there is any general rule that this is required in all cases. The absence of such evidence, however, may well prove decisive in some cases and is a factor to be taken into account in determining whether there has been any "practical injustice".
52 The applicant advances the following contentions in support of the procedural fairness complaints that he advances in this ground of review:
(a) he was never given notice of the 20 February 2019 letter and the 16 November 2020 letter (together PNG letters) or the PNG authorities' position regarding his PNG citizenship status and his inability to be deported to PNG;
(b) he was never given notice of the prospect of an indefinite detention; and
(c) he was never given notice of the possibility that he was stateless or the impact of him being stateless.
53 The applicant submits that the prospect of indefinite detention and his statelessness are matters that he should have been given notice by the Minister. He submits that this did not occur and that failure amounts to a serious irregularity producing practical injustice.
54 The applicant submits that if these matters had been brought to his attention he could have addressed the Minister about indefinite detention, the impact of indefinite detention on his health and welfare, and on the health and welfare of his family "within the framework of the 501CA natural justice requirements, as opposed to in general correspondence". The submission was based on the proposition that the Minister should have taken the applicant's statelessness into account within that framework rather than in "general correspondence".
55 Section 501CA of the Act relevantly provides:
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision;
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
56 The applicant submits that for the purpose of the framework provided by s 501CA it does not matter whether the information was adverse. He further submits that, in any event, the information concerning the applicant's statelessness was adverse to the applicant because it meant that he would be subject to indefinite detention in Australia.
57 The applicant further sought to rely on internal emails within the Department that established that a positive decision had been made not to provide the PNG letters to the applicant, because it might instigate a complaint that he should never have been removed to PNG in August 2019 given his statelessness, and it may have led to further delays in progressing the submission to the Minister for decision. When pressed as to the relevance of these emails, counsel for the applicant stated:
MS GOODCHILD: Well, it's not directly relevant other than the fact that it's quite clear that officers within the department had this material available to them and turned their mind as to whether or not they should be released, but the reasons why they're not released were not - were matters more concerned about internal government concern about complaint and grievance, as opposed to, in my respectful submission, having regard to the procedural fairness and just the absolute fairness to Mr Kuster. We don't want to release these documents because we're concerned how it looks.
58 The Minister advances four submissions in response to the applicant's procedural fairness ground of review:
(a) the information in the PNG letters was not adverse because they supported the applicant's case, in that they supported the inference that there would be detrimental consequences for the applicant in the form of indefinite detention, and the attempt by the applicant to overcome the "non-adverse" proposition by relying on s 501CA framework is misconceived;
(b) the applicant and his representatives were aware of the substance of the relevant information in the PNG letters;
(c) it is not easy to see what practical injustice the applicant suffered by not being provided with the PNG letters; and
(d) relatedly to the third submission, the prospect of the Minister reaching a different decision had the applicant been provided with the PNG letters was, at best, speculative.
59 I am not persuaded that the Minister failed to provide procedural fairness in the respects alleged by the applicant.
60 First, the information contained in the PNG letters was not adverse to the applicant's position. Rather, the information concerning the applicant's citizenship status would either have been neutral or made it less likely that the Minister would revoke the original decision. Any increase in the uncertainty as to the applicant's PNG citizenship status could only serve to decrease the likelihood of statelessness by reason of indefinite detention and therefore make it more likely that the Minister would not revoke the original decision.
61 Second, the s 501CA framework does not assist the applicant in providing an alternative basis for an obligation to provide the PNG letters to the applicant in order to afford procedural fairness to him. The requirement in s 501CA(2) of the Migration Act to provide information to the applicant is directed at "relevant information". Relevant information is information that the Minister considers would be the reason, or a part of the reason, for making the "original decision".
62 Section 501CA(1) provides that the "original decision" is the decision made under s 501(3A). The decision under s 501(3A) is the mandatory requirement to cancel a visa if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record by reason of the person being sentenced to a term of imprisonment of 12 months or more. The immigration status of the applicant, in particular his PNG citizenship status, cannot be the reason or part of the reason for concluding that the applicant had a substantial criminal record or was currently serving a sentence of 12 months or more.
63 Third, the risk of statelessness must have been readily apparent to the applicant by reason of his failed voluntary removal to PNG in August 2019.
64 By letter dated 21 May 2020, the Department provided the applicant with what it expressly stated was further information relevant to the decision on whether to revoke the original decision. That information included copies of four ABC media articles dated between 12 December 2018 and 22 August 2019 and invited the applicant to comment on these articles. The last two of the articles are the most relevant for the issue of the PNG immigration status of the applicant and his potential statelessness.
65 The headline to the ABC media article updated at 11.46 pm on 21 August 2019 was "Papua New Guinea refuses deportation bid by Australian Government, Gus Kuster flown back to Australia". The article reported:
PNG chief of immigration Solomon Kanitha said his country's immigration and Citizenship Authority (ICA) wanted a "formal request" from Australia and would "have to verify if the person is or was a PNG citizen and if the person is still a citizen is qualified under our laws to be returned to this country".
"He has been refused entry until ICA receives a formal request with necessary documentation on his citizenship status before a decision is conveyed to Australian authorities." Mr Kantha said.
66 The headline to the ABC media article updated at 9.46 am on 22 August 2019 was "Gus Kuster speaks about his anguish after after [sic] bungled deportation from Australia to Papua New Guinea". The article included the following statements:
The man at the centre of yesterday's bungled deportation operation has spoken of his anguish at being rejected by two countries in one day.
"Where does that leave me?" Gus Kuster told AM in his first interview since being forced to return to the country that tried to deport him.
"The Australian Government is saying I'm not Australian, and the [Papua] New Guinea Government is saying that I'm not allowed there because I've lived all my life in Australia."
67 Further, by letter dated 9 February 2021, the applicant's legal representative advised the Minister that she had instructions to commence proceedings for unreasonable delay unless a decision on the applicant's request for a revocation of the cancellation of the Visa was made by the close of business on 16 February 2021. In her letter, the applicant's legal representative expressly referred to the refusal by the PNG authorities to permit the applicant to enter PNG on 21 August 2019, referred to the natural justice letter sent to the applicant on 21 May 2020 and then stated that:
We are aware that the Department has made the following preliminary assessment of Mr Kuster's situation:
"The Papua New Guinea government has asked the Australian government to provide the necessary evidence that Mr KUSTER is a Papua New Guinean citizen. Given that documentary evidence of Mr KUSTER's Papua New Guinea citizenship is not available, Mr KUSTER is now effectively stateless, as he has no permission to enter or reside in Papua New Guinea or Australia."
68 The risk of indefinite detention must have been readily apparent to the applicant and his legal advisers before the Minister made the non-revocation decision on 14 April 2021.
69 Fourth, I am satisfied by reason of the matters outlined above that the applicant was aware of the substance of the information contained in the PNG letters prior to the non-revocation decision; namely, that the PNG Government was proceeding on the basis that the applicant was not a citizen of PNG. Both the PNG letters responded to queries as to the applicant's PNG citizenship status by stating, in effect, that the applicant was not a citizen of PNG because the PNG authorities did not have any records relating to his citizenship status.
70 The 20 February 2019 letter stated that the PNG Immigration Department did not have any record that the applicant was a PNG citizen or that he had applied for PNG citizenship and that "in this regards", the applicant was not a PNG citizen and cannot be deported to PNG.
71 After confirming the absence of any records of the applicant's citizenship status, the Acting Chief Migration Officer concluded in the 16 November 2020 letter that the applicant was not at present a citizen of PNG but added that he must "meet the necessary Constitutional requirements before PNG citizenship status can be accorded" to him. As explained above, however, the explanation provided in the letter of the Constitutional requirements was based on the flawed premise that the applicant was born before Independence Day.
72 Fifth, I am not satisfied that the applicant suffered any practical injustice by reason of any failure by the Minister to give him notice of the PNG letters or the PNG authorities' position regarding his PNG citizenship status and his inability to be deported to PNG.
73 The applicant submits that had such notice been provided, he could have made more focused and specific representations as to his statelessness and indefinite detention. The difficulty with this submission is that the Minister had declined to revoke the original decision notwithstanding the contents of the PNG letters. Moreover, greater focus or attention on the 16 November 2020 letter would in all likelihood have served only to highlight the extent to which the advice proceeded on the flawed assumption that the applicant was born before, not after, PNG Independence Day. Pointing to this error would have had the effect of increasing, not decreasing, the uncertainty of the applicant's PNG citizenship status. Greater uncertainty would not advance the applicant's position because from the Minister's perspective, it would reduce, not increase, the risk of indefinite detention.
74 Further, for completeness, I note that the applicant did not seek to lead any evidence that the applicant's entitlement to PNG citizenship would have been diminished if the advice had proceeded on the assumption that he was born in PNG after Independence Day.