M238/2002 v The Honourable Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT introduction 1 The applicant is a citizen of Vietnam who fled that country with his brother over twenty years ago. He arrived in Australia on 21 October 1980 and has not left Australia since that date. He was aged fourteen years on his arrival. 2 On 17 January 1990, the applicant was sentenced to sixteen years' imprisonment for murder and four years' imprisonment for intentionally causing serious injury, the sentences to be served concurrently, with a minimum term of twelve and a half years before being eligible for parole. On 24 October 2002, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") cancelled his visa upon the basis that the applicant did not pass the character test defined in s 501 of the Migration Act 1958 (Cth) ("the Act") by reason of the fact that he had "a substantial criminal record" as defined by s 501(7). The principal question in this case is whether the Minister breached the rules of procedural fairness in making this decision. procedural matters 3 On 7 February 2003, pursuant to s 44(2A) of the Judiciary Act 1903 (Cth), the High Court of Australia remitted this matter to the Federal Court of Australia. The applicant sought relief by way of certiorari and prohibition, declaration and injunction, in connection with the Minister's decision to cancel his visa. The matter was heard and fell for determination in conformity with Order 51A of the Federal Court Rules. relevant legislation 4 In cancelling the applicant's visa, the Minister purported to exercise the power conferred on him by subs 501(2) of the Act, which provides as follows: (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. Paragraph 501(6)(a) relevantly provides that, for the purposes of s 501, a person does not pass the character test if "the person has a substantial criminal record (as defined by subsection (7))". Subsection 501(7)(c) provides that a person has a "substantial criminal record" if "the person has been sentenced to a term of imprisonment of 12 months or more". 5 Where the Minister cancels a visa under s 501(2), the Minister is required, by s 501G, to give the visa holder a written notice that sets out the decision, specifies the provision under which it is made and the effect of the provision, and sets out the reasons (other than non-disclosable information) for the decision. Whilst s 500(1) provides for review by the Administrative Appeals Tribunal ("AAT") of a decision of a delegate of the Minister under s 501, there is no provision for review by the AAT in the case of a decision made by the Minister personally (as in this case). background circumstances 6 When the applicant, who was born on 7 July 1966, entered Australia, he had no command of the English language. He left school before completing Form 3 (now Year 9). He had difficulty in finding employment. Between 1986 and 1988, he was convicted of various offences - theft of a motor car (1986 and 1988); unlicensed driving (1986 and 1988); failure to answer bail (1986); unlawful assault (1987); assault in company (1987); and assault by kicking (1987). 7 On the evening of 9 June 1988, the applicant, who was then twenty-one years old, was involved in a fight in Victoria Street, Abbotsford (an inner-city suburb of Melbourne). At some stage, he armed himself with a M1 Carbine semi-automatic rifle and fired some shots from it, seriously injuring one man. He subsequently chased another man into a side street and shot him in the head. His second victim later died from the gunshot wound inflicted by him. On 18 June 1988, the applicant, who had fled to Sydney, gave himself up to police in that city. 8 In mid-December 1989, the applicant was convicted of murder and of intentionally causing serious injury. In sentencing the applicant, on 17 January 1990, the trial judge said, among other things: The murder of [the deceased] has no redeeming features or mitigating circumstances, in my opinion. [The deceased] did not provoke [the applicant] or attack [the applicant] in Victoria Street. I find, as I believe the jury did, that [the applicant] pursued [the deceased] for some time, not only in Victoria Street but into other streets and up a lane armed with an M1 carbine until finally you cornered him in a small enclosed garden where you shot him in the head in a very cold blooded manner. You showed him no mercy whatsoever. … . … [O]ne would be very hard hearted indeed not to feel extreme sympathy for a person such as [the applicant] who has undergone such personal hardship and been forced to leave his own country, to leave behind his mother and to lose contact with members of the family. It is indeed correct to describe [the applicant's] life when [he] arrived in this country as a deprived life. [The applicant was] a lonely person in a foreign environment and [he] had to struggle to survive within a foreign culture and society. However, I think [he has] not done [his] best to overcome the difficulties which [he] faced. … . Having served his non-parole period, the applicant was released from Loddon Prison on 27 April 2002. He lived in the community until he was taken into immigration detention in November 2002. He will be kept in detention until he is removed or deported from Australia or is granted a visa: see s 196. His parole period is due to expire on 26 October 2005. 9 A delegate of the respondent Minister made an order for the applicant's deportation on 24 August 1998, pursuant to s 200 of the Act. On 14 September 1999, however, the AAT set aside this decision and remitted the matter to the Minister, with a direction that the deportation order be revoked. In making this decision, the AAT had regard to the Minister's General Direction (which was dated 21 December 1998 and made under s 499 of the Act). This General Direction was in all relevant respects the same as the General Direction current at the time the Minister made his subsequent decision to cancel the applicant's visa. I summarise the Tribunal's reasons in the following paragraphs because they have some bearing on the case that the applicant presents in this Court. 10 The AAT (constituted by Deputy President BM Forrest) acknowledged that the applicant's conviction for murder "revealed a crime of extreme viciousness", noting that: In the context of seriousness, unlawfully taking another person's life is unquestionably at the upper end of the gravity scale. According to the Tribunal, however, there was "considerable evidence pointing to the applicant's rehabilitation"; and it concluded: Given the gravity of the deportable offence, only a very low risk of recidivism is acceptable to the community: … . On the sum total of the evidence of the applicant's rehabilitation, he is in my opinion an acceptable risk to the community. 11 Discounting the Minister's submission that deportation would be likely to discourage similar offences and "gang warfare in general", the Tribunal observed that there was no evidence that "gang warfare" was a problem in Melbourne. Amongst other things, the Tribunal stated: [I]t seems to me from a reading of the sentencing remarks of [the trial judge], that irrespective of the question of deterrence in a deportation context, there was a substantial element of general deterrence in the sentences that the Court imposed and one that could be expected to have had a salutary effect on the applicant's acquaintances in the Vietnamese community. 12 The Tribunal accepted that, as a general statement of community expectation, "the objective bystander, would, having regard to the circumstances of the offence, regard the intentional killing of an unarmed person as an abhorrent crime". Yet the Tribunal said: I do not think that deportation should be ordered simply on the basis of the abhorrence of the crime of murder without regard to the primary and common considerations … discussed in these reasons. … . Clearly the 'abhorrence' of the crime is to be given as the policy dictates, such weight as is appropriate proportionally to the decision maker's understanding of community attitudes to the offence. In this case I am satisfied that the weight of this factor is considerable. 13 After considering the hardship that he and members of his family, especially his mother, would suffer if the applicant were deported, the AAT concluded: Having considered all of the evidence and submissions and weighing up the relevant considerations required to be taken into account, the competing factors are finely balanced. Against the applicant in [sic] the nature and circumstances of his criminal behaviour and the expectation that persons who commit such an offence be removed from Australia. There is however a good deal of evidence which I have accepted that the protection of the community is not in jeopardy by his continuing presence. That together with the undoubted hardship to the applicant and also to family members who are Australian citizens, in the event of deportation, tip the balance ever so slightly in the applicant's favour of being permitted to remain in Australia. Also the applicant because of his age and the efforts he has made to rehabilitate himself, has the potential, hitherto lacking, to make a contribution to this community. 14 Notwithstanding the AAT's decision, on 1 May 2001, whilst still in Lodden Prison, the applicant received a notice dated 26 April 2001 informing him that the cancellation of his visa was again under consideration, this time by the Minister personally under s 501(2) of the Act. The notice invited a written response, stating: In preparing your comments please read the contents of the Minister's Direction fully and carefully. You should address each and every topic that you feel applies to you or is relevant to your circumstances. You may also wish to provide any further information that you feel the Minister ought to be aware of and take into account. The Department provided him and his legal representatives with a copy of the Minister's General Direction No 17 and, subsequently, with General Direction No 21 (which replaced No 17), as well as notes of an interview with the applicant on 23 April 1998 and prison reports. 15 The applicant's lawyers made submissions on his behalf, including by letters received by the Department in October 2001 and January 2002. Both through his lawyers and personally, the applicant acknowledged his criminal history, submitting that he understood and regretted the serious wrongs he had done; that he would not re-offend; that he had taken every opportunity to profit from the opportunities available to him in prison; that he intended to establish himself in work and in a stable domestic situation upon his release; and that he would suffer serious hardship if he were to return to Vietnam, where he had no ties and would not be able to receive certain treatment for his skin condition. 16 The applicant's lawyers made a submission in their October 2001 letter that assumed particular importance in the submissions made on the applicant's behalf at the hearing of his application in this Court. Amongst other things, in this letter, his lawyers submitted that: The Minister has a duty to consider, and give appropriate weight to, all relevant material when arriving at his decision. … . However, if he proposed to reach a view less favourable to [the applicant] than that found by the Tribunal, he is bound as a matter of procedural fairness to notify [the applicant] of this and accord him an opportunity to address it. … It is conceded that [the applicant] committed very serious crimes. … . …. The Minister made submissions before the Tribunal about the risks [the applicant] posed to the community and as to the deterrent effect of deporting [him]. … The Tribunal's findings are relevant. It is contended that [the applicant] poses negligible, if any, risk to the Australian community if he is permitted to resume his life in the Australian community. … [The applicant] has an extended family in Australia. They are Australian citizens. … [The applicant's family] have not abandoned him while he is in prison. They maintained regular contact with him, visiting him when they can. They will provide support to him when he is released from custody and assist him in adjusting into the community. [The applicant's mother], in particular will … suffer great emotional hardship if [the applicant] is deported from Australia. She has made Australia home. She is now well assimilated into Australian society. It is not practical for her to return to Vietnam. Nor does she wish to do so. … [The applicant] came to Australia as a minor. He was 14 years old. He came with his older brother. He has considered Australia home since [then]. He has no viable family or social network if he is repatriated to Vietnam. He is practically an Australian save for his non-citizenship. If he is repatriated to Vietnam, he will suffer incalculable hardship. … In our submission, the Australian community will consider [the applicant] adequately punished by serving his prison sentence. It will consider he ought to be treated as other members of the community who, having completed their punishment, are allowed to resume their lives in society. It is submitted that the Australian community would [not] press for [the applicant's] removal from Australia. (Emphasis added) 17 The submission was accompanied by a copy of a memorandum dated 15 August 2001 addressed to the applicant's lawyers from a senior prison officer at Lodden Prison. Omitting formal parts, the memorandum read: [The applicant] has been at this location since 1997 at which time he has given management no cause for concern. Throughout his sentence [the applicant] has completed many personal and educational programs. Since his incarceration [the applicant] has learnt to speak and write English … achieving an acceptable standard. To improve his future employment prospects … [the applicant] has studied numerous courses … . At all times he has demonstrated an excellent attitude towards staff and by actively participating in programs he has showed his willingness to rehabilitate himself. 18 In a subsequent submission, the applicant's lawyers said, amongst other things: In light of your decision to not obtain any professional reports on [the applicant], and in light of the fact that you have not raised any issues concerning the topic with [the applicant] or us, we assume that you accept he is not a risk to the Australian community. However, should we be wrong in our assumption, please notify us and provide the facts that you rely on to reach a contrary view so that [the applicant] can have an opportunity to respond before the matter goes to the Minister. If you accept that [the applicant] does not pose a risk to the Australian community the only remaining consideration of significance, in the Minister's Direction is the expectations of the Australian community. In this respect, we submit that [the applicant's] repentance and rehabilitation will be well received by the Australian community. We submit that the expectations of the community is that [the applicant] has served his punishment and ought not be further excluded from the society he has chosen to live in: the Australian society. (Emphasis added) 19 An officer of the Department of Immigration and Multicultural and Indigenous Affairs (Ms Marciniak) interviewed him on 12 September 2001 and, again, on 21 August 2002. According to a note, apparently prepared by Ms Marciniak, "[t]he purpose of the [August 2002] interview was to discuss his circumstances since his release from prison to parole on 27 April 2002". The applicant himself wrote to Ms Marciniak, by letter dated 29 August 2002, saying: When I was 22 years old, I made a big mistake. I committed a serious crime and I was punished with a long sentence in prison. I paid the price by spending all my young adult life in prison. All that time I lived in constant remorse for my past action. It was my nightmare, living in sorrow and depression. I suffered from health problems as a result of this and I had to take medication for a long time in prison. The time in prison has taught me much already. I have learned a big lesson. That is why, in prison, I didn't interact with other inmates as I didn't want to be influenced by them. … I know that my crime was serious, but I will not be stupid again. I assure you that I have never done anything wrong again. I am asking you to give me a chance to prove that I will be a good citizen. … . There were other letters of support written on the applicant's behalf to Ms Marciniak, including letters from his mother, sister, sister-in-law and other members of his family and a parish priest. A note of an interview with the applicant's brother in May 1998 was also attached to the Minute prepared for the Minister's consideration (see below). 20 In letters addressed to Ms Marciniak, the applicant's lawyers asked her to supply them with a copy of any submission she proposed to provide to the Minister and whether the Department intended to obtain "a psychological or psychiatric report" on the applicant. By letter dated 9 October 2002, Ms Marciniak wrote to the applicant's lawyers, informing them that the applicant's case: … is currently under consideration. It is expected that his case will be referred to the Minister for decision shortly. I trust that you will agree that ample time has been made available for submissions to be lodged on [the applicant's] behalf. Please be assured that all matters relevant to the consideration have been put to [the applicant]. Matters raised in the submissions received on [the applicant's] behalf will also be included in the submission to the Minister. I am unable to provide a copy of the submission prepared for the Minister prior to his decision, however, a copy of the decision record will be provided after the Minister's decision has been made. the decision 21 General Direction No 21 ("the Direction") was current when the Minister was considering the cancellation of the applicant's visa. The Direction, which was made under s 499 of the Act, stated that it was to provide "guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. Although the Direction was, pursuant to s 499(2A), binding on delegates of the Minister in considering the cancellation of visas, it was not binding on the Minister in personally exercising the cancellation power conferred by s 501(2). It was, however, open to the Minister to have regard to the Direction in reaching such a decision. Referring to par 501(6)(a) and subs 501(7), the Direction recorded that "[a] non-citizen does not pass the Character Test if they have a substantial criminal record"; and, in this case, decision-makers were to decide whether or not the non-citizen should be permitted to enter or remain in Australia. In this connection, the Direction required a decision-maker to have regard to "primary" and "other" considerations. There were three primary considerations: the protection of the Australian community, the expectations of the Australian community and (where relevant) children's best interests. As regards community protection, the factors to be considered were the seriousness and nature of the relevant conduct, the risk of recidivism, and the deterrent effect of visa refusal or cancellation. Concerning community expectations, the Direction stated: The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect. The Direction acknowledged that, in addition, there might be other matters that might be relevantly taken into account, although "given less individual weight" than the primary considerations. 22 The Minute to the Minister ("the Minute"), which was apparently prepared by Ms Marciniak and was accompanied by copies of the documents to which it referred, noted that it was "open" to the Minister to find that the applicant has "a substantial criminal record under s 501(7)(c)"; and that there is a reasonable suspicion that he "does not pass the character test due to the fact that he has been sentenced to a term of imprisonment of 12 months or more". Having recorded that it was also open to the Minister "to be guided by the factors set out in the [General] Direction"; the Minute also stated that it was open to the Minister to find that (a) the applicant is "at a low risk of recidivism"; (b) the cancellation of his visa "would serve as a deterrence factor against others committing similar offences"; and (c) "the majority of the Australian community might expect that a person convicted of criminal offences such as those committed by [the applicant] would have his visa cancelled and not be allowed to remain in Australia". 23 In discussing the risk of recidivism, the Minute specifically referred to numerous matters, noting (amongst other things) the applicant's age when he committed the crimes and the passage of time; the AAT's view that his "prior offences did not reflect a propensity towards recidivism"; the applicant's statements of regret; his pursuit of educational courses whilst in prison; the support of representatives of the Brosnan Centre and the Society of St Vincent de Paul; favourable prison reports; and his good parole record. The Minute stated: The available evidence suggests that [the applicant] regrets his crime, has a strong sense of having lost years of his life and determined to use his time in prison positively to acquire skills and prepare himself for a positive life on his release into the community. Deputy President Forrest stated, "Despite the fact that he has spent most of his time in Australia in prison … given the steps he has taken to rehabilitate himself and the skills he has acquired since his offending, he has the potential to make a contribution to the community". Although the Minute recorded that the Minister could find that the cancellation of the applicant's visa would serve as a deterrent, it noted the AAT's finding that there was "no evidence to suggest that 'gang warfare' was a problem". 24 According to the Minute, there were a number of other considerations that the Minister might consider, including his family ties in Australia and the absence of family in Vietnam; his acquisition of English and knowledge of Australian society; and his medical condition. The Minute observed: It would seem fair to say that [the applicant] has considerably greater personal, physical and emotional ties to Australia than to Vietnam. In fact, he would seem to retain no links with Vietnam at this point in his life. It is reasonable to expect that [the applicant] would face significant hardship if he were removed from the ongoing support that would be available to him in Australia to Vietnam where he has no employment or accommodation and little or no support would be available to him. 25 The Minute, which noted the letters of support from the applicant's family and a Minister of Religion, described the position of the applicant's mother and the other members of his family, observing: The family made strenuous efforts to maintain family relationships and provide support to [the applicant] while he was incarcerated, however, it will not be possible to maintain these links or provide meaningful support to him, if [the applicant] is removed from Australia. In connection with his medical condition, the Minute recorded that the applicant suffered from "a chronic skin condition … which is often acute and debilitating" and that he feared that, if deported to Vietnam "where he has no-one and would not know where to go or how to begin his life, his stress levels would be compounded and consequently his situation would be a hundred fold worse". 26 On 24 October 2002, the Minister cancelled the applicant's visa pursuant to s 501(2) of the Act, certifying as he did that: I reasonably suspect that [the applicant] does not pass the character test and [the applicant] has not satisfied me that he passes the character test and I have decided to exercise my discretion under subsection 501(2) of the act to cancel the visa, so I hereby cancel the visa. 27 On 19 November 2002, the applicant received a "Notice of Visa Cancellation Under Subsection 501(2) of the Migration Act 1958". Since the Minister made the cancellation decision personally, the applicant was unable to seek review by the AAT. With the cancellation of his visa, the applicant became an unlawful non-citizen and was taken into immigration detention pending his removal from Australia. 28 A copy of a document recording the Minister's reasons for cancelling the applicant's visa was exhibited to an affidavit sworn on 6 June 2003 by the respondent's solicitor. The Minister's statement read in part (and omitting headings) as follows: [The applicant's] case is one of many visa cancellations that I have personally considered. This document sets out to my best recollection the reasons for my decision of 24 October 2002. … In making my decision I took into account the [Minute], all matters referred to in that document, and all of the annexures to that document. … . … As a consequence of his sentences on 17 January 1990, of imprisonment for a period of more than 12 months, [the applicant] was deemed to have a substantial criminal record and not to pass the character test by virtue of s 501(6)(a) with reference to s 501(7)(c) of the Act. For the above reasons I formed the necessary reasonable suspicion that [the applicant] does not pass the character test and he was unable to satisfy me that he passes the character test. … I then considered whether to exercise my discretion to cancel the visa of [the applicant]. While not bound by my own General Direction number 21 … following my usual practice I proceeded to be guided by the Direction. … . Accordingly, I gave primary consideration to the protection of the Australian community and the expectations of the Australian community. I then went on to consider other considerations in relation to [the applicant]. I gave primary consideration to the protection of the Australian community, taking into account the seriousness and nature of [the applicant's] conduct, the likelihood that such conduct might be repeated and general deterrence. [The applicant] was convicted of the two very serious offences of 'Murder' and 'Intentionally Cause Serious Injury'. In addition in 1987, he was charged with the offences of 'Unlawful Assault', 'Assault in the Company' and 'Assault by Kicking' for which he was placed on a good behaviour bond. … . These constitute crimes that I consider to be very serious … . … [The applicant] has intentionally caused serious injury and has on 9 June 1988 committed Murder, his conduct during the incident caused serious disruption to a number of Australian citizens and residents and caused them to have concerns in relation to their own safety and that of their property. I consider this conduct to be very serious. The nature of [the applicant's] conduct and its effect on the community is such that I gave this consideration great weight. … I considered [the applicant's] time in prison and noted that this has been spent positively. … I noted the comments made by [the applicant's] case worker, who advised on 27 September 2002, that [the applicant] is complying satisfactorily with his parole conditions and that his case has been reduced from the high to low risk category. … . However, given the very serious nature of the offences committed by [the applicant] on 9 June 1988, I placed relatively little weight on his risk of recidivism. The very serious offences committed by [the applicant] were 'Murder' and 'Intentionally Cause Serious Injury' and occurred in the context of a violent affray between two groups. In considering whether the cancellation of [the applicant's] visa would act as a deterrent to other non-citizens who might engage in similar activities, I found that cancellation in this instance would provide a deterrent effect and that other non-citizens would take the consequences of cancellation and removal from Australia seriously. Overall I placed moderate weight on this consideration. I gave primary consideration to the expectations of the Australian community. … . … The offence committed by [the applicant] is considered by the Government to be very serious. In view of the seriousness of those offences, I considered that the majority of the Australian community would expect [the applicant's] visa to be cancelled and him to be removed from Australia. Overall I placed moderate weight on this consideration. … I accept that [the applicant] has considerably greater personal, physical and emotional ties to Australia than Vietnam and that he appears to have retained no links with Vietnam at this point in time. I have given considerable weight to this consideration. … I believe it is reasonable to expect that [the applicant's] relationship with his family members may be adversely affected if he were removed from Australia. However, I note that [the applicant] is now over 36 years of age, has a sister [who] resides in Italy and Uncles and Aunts who reside in Vietnam. I have given moderate weight to this consideration. … In deciding to exercise my discretion to cancel [the applicant's] visa, I took into account that there would be hardship to [the applicant] and his immediate family if he was to be removed from Australia, and that given [the applicant's] medical condition, it would be in his best interests to remain in Australia. In reaching my decision however, I concluded that the seriousness of [the applicant's] crimes, the disruption these crimes have caused others and my responsibility to protect the Australian community outweighed all other considerations referred to above. … (Emphasis added) the parties' submissions 29 In this Court, the applicant submitted that the Minister acted without jurisdiction in that officers of his Department denied him procedural fairness by failing to disclose the inclusion of certain adverse matters in the Minute prepared for the Minister's assistance and thereby denied him the opportunity to comment on them. At the hearing, the applicant abandoned a second ground - the failure to give reasons - since reasons were, as already noted, ultimately provided before the hearing. 30 There were, so the applicant said, two matters in the Minute that he would have addressed. They were the statements that it was open to the Minister to find that (1) he had "a low risk of recidivism" and (2) "the majority of the Australian community might expect that a person convicted of criminal offences such as those committed by [him] would have his visa cancelled and not be allowed to remain in Australia". 31 Counsel for the applicant contended that, in the present context, for natural justice purposes, there was: … a critical difference between a foreshadowed conclusion which leaves open the risk of recidivism and a conclusion which said there is no sensible, tangible, no realistic, no material risk. He submitted that, in this case, the statement in the Minute that it was open to the Minister to find that there was a low risk of recidivism was calculated "to operate adversely on the ultimate decision-maker, the Minister". He added: [I]f at the end of an investigation process like [the Department's] somebody comes to a provisional adverse view … on a critical factual matter, then [the applicant] ought to have an opportunity to answer that before it goes up to the Minister. 32 In written submissions, the applicant submitted that he would have wished to "argue very strongly … that the risk of recidivism should properly be regarded as non-existent". At the hearing, his counsel submitted that, where the Departmental officers espoused a view on the risk of recidivism that was adverse to the applicant, then, in the particular circumstances of the case, the applicant could reasonably have expected, and procedural fairness required, that he be so informed and be given a further opportunity to be heard on the matter. Amongst the relevant circumstances was the fact that, in considering this very issue, the AAT had previously held that the applicant was an acceptable risk to the community - an acceptable risk being, so the AAT said, at most a "very low risk of recidivism". Since the AAT's decision, the applicant had been released on parole and had received favourable reports from his parole supervisors. Bearing these matters in mind, counsel submitted that the assumption made by the applicant's lawyers - that the Departmental officers would accept that he was not a risk to the community - was a reasonable one. In communicating this assumption to the Department in January 2002 and in requesting that its officers notify them if they were mistaken, his lawyers were, so counsel submitted, reasonably seeking confirmation that the risk of recidivism did not still lie on the agenda of matters that might lead to cancellation of the applicant's visa. In the absence of any response from the Department, the applicant and his lawyers could reasonably believe that the risk of recidivism was not a matter of concern to the Departmental officers responsible for advising the Minister. There was, furthermore, apparently nothing in the applicant's interview in August 2002 that might have alerted him to the fact a risk of recidivism remained of concern. 33 The applicant's counsel submitted that had he, or his lawyers, known that the risk of recidivism remained on the decision-maker's agenda (as it did by virtue of the Minute), then the applicant would have expanded on the matters addressed by Mr Hien Tan Nguyen (of the Brosnan Centre) in his letter to Ms Marciniak of 21 November 2001 and lodged additional material. In support of this latter submission, the applicant relied on an affidavit affirmed by Hieu [sic] Tan Nguyen on 30 April 2003 and an affidavit sworn by Peter Norden SJ (who is the Policy Director at the Jesuit Social Services). Peter Norden SJ deposed, amongst other things, that he had over 25 years experience with criminal offenders (having formerly been the Senior Catholic Chaplin employed by the Victorian Department of Justice) and that he had known the applicant for over 15 years. It was his opinion that the applicant "poses an insignificant, if any, risk of recidivism" (emphasis added). 34 The second aspect of the applicant's procedural fairness case related to community expectations. The applicant submitted that had he been informed that the Departmental officers entertained the view that it was open to the Minister to find, on the material before him, that "the majority of the Australian community might expect that a person convicted of criminal offences such as those committed by [the applicant] would have his visa cancelled and would not be allowed to remain in Australia", then he would have wished to provide further evidence and submissions on the issue of supposed community expectations. In support of this part of his case, the applicant again relied on the affidavit of Peter Norden SJ, expressing the opinion that: A large portion of the Australian community would consider that someone in [the applicant's] circumstances, is now a member of the Australian community and, having served his sentence, ought not be deprived of the fellowship of the community; [and] The Australian community would not expect [the applicant's] visa to be cancelled. 35 He also relied on an affidavit, sworn on 16 April 2003, by Sr Brigid Arthur, a member of the Brigidine Religious Congregation and co-ordinator of the Brigidine Secondary School Council for 11 years. She also had 25 years' experience as a school principal and experience as a teacher. She said that: During the course of my work, I have come across many people across all walks of life and of all ages. I have spoken with many staff, parents, students and other people in the community. It is my opinion, whilst the Australian community expect that those who commit crime to be punished, they are very ready to accept that they should also be given a chance to make a new start. I do not believe that the Australian community in general discriminates between citizens and non-citizens. Those in the Australian community I speak with are both amazed and horrified that the sheer ceremony of naturalization could determine the entitlement to remain in our community. In my opinion, it is simply wrong to conclude that the Australian Community expect people who have committed serious offences to be deported. In my opinion, the Australian Community would consider each case on its own facts. 36 There were also affidavits sworn by Ann Morrow and John Marcus Power. Among other things, Ms Morrow was the Chief Executive Officer of the Victorian Ministry of Education between 1988 and 1991, chair of the Schools Council of the National Board of Employment, Education and Training and had established the Australian Technology Network's Women's Executive Development Program. She had been mayor of a suburban municipality in the 1970s and retained her interest in and contact with local government. She deposed that: Through my networks in the education and training policy fields, in public policy, and in local community activities … I interact with many diverse groups in the community each year. I have ongoing opportunities to discuss the issues that have emerged in relation to the public expectation of non-citizens convicted of serious crimes, and to receive feedback from a very wide range of people and interests. The feedback I have received is that it is unjust for people who have served their sentences to be further punished by way of exclusion from the Australian community whether it be by further imprisonment or deportation. The members of the Australian community whose views I know do not expect non-citizens to necessarily deserve deportation from Australia upon completion of their prison sentences. Instead, there is wide agreement that the offender's personal circumstances should be taken into account. Emeritus Professor Power, who had a distinguished academic career in political science, also espoused the opinion that the Australian community would not expect the automatic deportation of every non-citizen who committed a serious crime, but, rather, that each case would be judged on its own merits. 37 I note too that there was an affidavit by the applicant's sister stating that, if the applicant were released from detention, then he might reside with her. 38 In written submissions, the respondent's counsel contended that the Minute, which had been prepared for the Minister's assistance, "did no more than summarise the material considerations, refraining even from making a recommendation". He submitted that the Direction and the notice of 26 April 2001, informing the applicant that the cancellation of his visa was again under consideration, set out all the matters referred to in the Minute on which the Minister acted. There was, so he said, "no evidence of any factor being considered by the Minister without the Applicant having had an opportunity to address it". The respondent added: There is no suggestion of any deficiency in the hearing which was afforded to the Applicant at interviews by departmental officers. The material which was placed before the Minister included (inter alia) notes of the Applicant's interviews with officers of the Minister's Department (and all of the written material the Applicant and his advisers had submitted). There is no suggestion of any issue being considered by the Minister which the Applicant did not have an opportunity to address. In particular he was given the opportunity to comment on all matters included in the [Direction], which included the Risk of Recidivism and the Expectations of the Australian Community. The process, viewed as a whole, was fair. Counsel for the respondent elaborated on these matters at the hearing. The substance of his submissions was that the Departmental officers had given the applicant an opportunity to address all relevant issues and that the applicant had taken up this opportunity to do so.