The Second Question
62 Given that the Minister committed a jurisdictional error by failing to take into account a relevant consideration, it is necessary to consider whether the appellant should be denied relief on the ground that the failure could not have materially affected the Minister's decision. A difficulty that arises here is an ambiguity in the language used by Mason J in Peko-Wallsend. What does it mean to say that a factor is so insignificant that it 'could not have materially affected the decision'? Does it mean that a particular decision-maker probably would have reached the same conclusion if he or she had taken the consideration into account? Does it mean that on the material before the decision-maker the conclusion he or she reached was inevitable, and that the omitted consideration could not have made any difference to a rational decision-maker? Or does it mean something else?
63 Mason J recognised the ambiguity in his formulation when he noted (at 40) that the principle was supported by 'various expressions' in the authorities. In R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] 1 QB 227, one of the authorities cited by Mason J, Griffiths LJ said (at 260) that a court should not intervene, even where relevant factors had not been taken into account, 'unless it is convinced that this would have resulted in the decision going the other way'. In Hanks v Minister of Housing and Local Government [1963] 1 QB 999, another of the cited authorities, Megaw LJ (at 1020) merely said that there might be cases where the factor wrongly omitted was 'insignificant' and thus would not justify concluding that the exercise of power was 'bad'.
64 It seems to me that the correct approach is that stated in Stead and adopted by the High Court in Aala. The test is whether the applicant has been deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of the statute. If so, the jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant. The test must be applied by reference to the material actually before the decision-maker and, where the decision-maker's reasoning processes is known, taking into account his or her approach to the exercise of the particular statutory power. The question is not whether the decision-maker would probably have reached the same result even if the omitted consideration had been taken into account.
65 To answer the appropriate question, it is necessary to consider the long history of the present case. In 1991, the appellant was convicted of four counts of armed robbery arising out of a 'home invasion'. As I have noted, he was sentenced to six years and six months imprisonment. While on bail awaiting trial for the armed robbery charges, he committed further offences, including break, enter and steal and possessing housebreaking implements. Each of these offences resulted in sentences of twelve months' imprisonment, to be served concurrently with the principal sentence. While in prison, the appellant committed the drug offences to which reference has been made. The attempt to remove him from Australia began as long ago as 6 June 1997 (before he completed his custodial sentence), when a deportation order was made pursuant to s 200 of the Migration Act. Since then the appellant has been engaged in protracted litigation with the Minister.
66 There is little doubt that the principal factors influencing the Minister were that the 1991 convictions could be classified as very serious offences, that the appellant had a medium to high risk of recidivism and that deterrence would be served by his removal from Australia. The last point was supported in the Issue Paper by par 27:
'The offences committed by [the appellant] were Armed Robbery (4 counts) House Breaking Implements in Possession, Break, Enter and Steal - Burglary (3 counts), Threaten To Use Offensive Weapon With Intent to Resist Arrest. It is open for you to find that cancellation of [the appellant's] visa would serve as a deterrence factor against others committing similar offences. The Government has a strong interest in deterring others from committing offences of this nature.'
It will be seen that this paragraph makes no reference to the drug offences.
67 If the question was whether the Minister would have been likely to reach the same conclusion had he known the correct position concerning the drug offences, I would have little hesitation in answering in the affirmative. But as I have explained, that is not the question. The question is whether the appellant was deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of s 501A(2) of the Migration Act.
68 The material before the Minister may well have been interpreted by him as indicating that the appellant had been convicted of using 'hard' drugs in prison. A cumulative sentence of nine months imprisonment for these offences (as the Issues Paper erroneously recorded) suggests that the offences committed in prison were serious. While the Issues Paper did not refer to the 1993 and 1997 drug offences under the headings of 'The seriousness and nature of the conduct' and 'General deterrence', they were specifically referred to in par 22, under the heading 'The likelihood that the conduct may be repeated'. Other material in the Issues Paper made it clear that the drug use offences had been committed while the appellant was in prison. The Minister may well have formed the view that the appellant was at high risk of recidivism on the basis, in part, of a mistaken view of the nature and seriousness of the appellant's drug use in prison.
69 While this case is close to the line, I have formed the view that the appellant was deprived by the errors of the Department of the possibility of a successful outcome. Had the Minister been presented with the correct details of the appellant's drug use convictions and sentencing, he may have taken a different view of the appellant's risk of recidivism and thus he may have refrained from making an order pursuant to s 501A(2) of the Migration Act cancelling the appellant's visa.
70 I should make several further points.
(i) The appellant is not entitled to succeed unless error has been demonstrated on the part of the primary Judge. The primary Judge may have had Peko-Wallsend in contemplation when he said (at [57]) that the very serious offences committed in 1990 (including those committed while on bail) had swayed the Minister, not the cannabis offences. But, as I have noted, the question is not simply what motivated the Minister, but whether the appellant was deprived of the possibility of a successful outcome by the failure to consider his true criminal record. I do not think that the primary Judge directed attention specifically to that question.
(ii) I regard the reasons provided by the Minister long after the cancellation decision to have little bearing on this case for two reasons. First, the reasons, which are based on the Minister's best recollection nineteen months after the event, must be treated with great caution: Dagli, at [67]. Secondly, the reasons do not address the critical question in these proceedings, namely whether the provision of the correct information concerning the appellant's drug use convictions might have led to a different outcome.
(iii) I think it appropriate, in determining the question that arises for decision, to take into account the serious consequences for the appellant if his visa is validly cancelled. It is clear that he has not made a substantial contribution to the well-being of his adopted country. But he has lived here for 22 years, since he was aged 13. If he is to be removed, it should be on the basis of an accurate recitation of his criminal record.
(iv) In Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 139, a Full Court, of which I was a member, rejected a contention that the Minister had denied the appellant in that case procedural fairness by misstating aspects of his criminal record. The Court applied the test of 'practical injustice' and concluded that there had been no such injustice, having regard to the nature of the errors and the approach the appellant and his advisors had taken in explaining his criminal record to the Minister. Ayan turned on its own facts, as does the present case.