M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia (Full Court)|2003-11-21|Before: Allsop JJ

Background 1 The appellant was born in Vietnam on 7 July 1966. He came to Australia as a refugee in 1980 together with his elder brother. He has not become a citizen. Notwithstanding his presence in the country since 1980, he is an alien for the purposes of the Migration Act 1958 (Cth) (the Act): Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 193 ALR 37. 2 In 1989, the appellant was convicted of murder and intentionally causing serious injury. The murder involved the appellant chasing his victim down a public road, cornering him, and shooting him in the head with a semi-automatic weapon. The events were part of an affray between rival gangs. Prior to this event in 1988, the appellant had other convictions for crimes of both dishonesty and violence. For these crimes in 1988, the appellant was sentenced to sixteen years imprisonment, with a non-parole period of twelve years. 3 On 24 October 2002, the Minister cancelled the appellant's visa pursuant to s 501(2) of the Act. Section 501 was, relevantly, in the following terms: … (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. … (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test. (7) For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution. … (12)In this section: court includes a court martial or similar military tribunal. imprisonment includes any form of punitive detention in a facility or institution. sentence includes any form of determination of the punishment for an offence.

The Original Application 4 The appellant sought to set aside this decision by seeking in the High Court the issue of constitutional writs under s 75(v) of the Constitution and related remedies. On 7 February 2003, Hayne J remitted the application to this Court, ordering, inter alia:

The further proceedings in this application be remitted to the Federal Court of Australia.
The application proceed in that Court as if the steps already taken in the application in this court had been taken in that Court. … 5 A number of grounds were identified in the draft order nisi filed in the High Court. None originally raised the assertion of a failure to accord the appellant procedural fairness. Ultimately, such an assertion was the only basis for the attack on the decision of the Minister before the primary judge. The primary judge rejected the assertion that there had been a want of procedural fairness, and thus dismissed the application. The appellant claims that her Honour was wrong so to conclude, and asserts that the decision was affected in a jurisdictional sense with the failure of the Minister to accord the appellant procedural fairness. 6 The assessment as to whether the procedure was "fair in all the circumstances" (Wiseman v Borneman [1971] AC 297, 308, per Lord Reid) to enable the person the subject of the decision to understand the matters to be addressed, and to have a reasonable opportunity to address those matters, involves attendance to the particular circumstances of the case and the procedure adopted up to the point of decision making.

The Procedural Treatment Said to be Unfair 7 The decision of the Minister was preceded by a decision of the Administrative Appeals Tribunal which set aside a previous decision of a delegate of the Minister made under ss 200 and 201 of the Act to deport the appellant, and which remitted the matter to the Minister with a direction that the deportation order be revoked. 8 On 1 May 2001, the appellant, while in prison, was given a document dated 26 April 2001 from the department entitled: NOTICE OF INTENTION TO CONSIDER CANCELLING VISA UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958 9 The notice said, amongst other things, the following: It has come to the attention of the Department that your visa may be liable to cancellation under section 501 of the Migration Act 1958 (the Act). The relevant ground is · Subparagraph 501(6)(a) I have attached the full text of section 501 for your information. The Administrative Appeals Tribunal (AAT) decision in respect of your deportation is noted. However, the Minister may consider whether to cancel your visa under section 501(2) of the Migration Act 1958 (the Act). Before the Minister considers whether to cancel your visa under subsection 501(2) you are provided with an opportunity to comment. Matters to be taken into account include the following: · Your conviction on 17 January 1990 at the Melbourne Supreme Court of the crimes of Intentionally Causing Serious Injury and Murder. In reaching a decision whether to cancel the visa the Minister will have regard to the matters noted above and the attached Minister's Direction No 17 titled 'Direction under Section 499 - Visa Refusal and Cancellation under Section 501 Migration Act 1958'. 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. Please provide your written response to this Notice, including your comments and the information and material you wish to present to the Minister, to this office for my attention. You may respond by mail (or facsimile) to the address below. If you do not respond within 31 days, that is, by 28 May 2001, a decision on whether there are grounds to cancel your visa will be made using information already held by the Department. Please note that, if your visa is cancelled, you will be taken into immigration detention at the completion of your sentence and held until you are removed from Australia. … Should you require any further information please do not hesitate to call me on [number provided]. If you wish to be interviewed before a decision is made, please contact me to request that an interview be arranged. … [emphasis in original] 10 In September 2001, the Minister's Direction No 17, which had been enclosed with the notice dated 26 April 2001, was superseded by Minister's Direction No 21. This second Direction was sent to the appellant, through his solicitors, under cover of a communication dated 3 September 2001. The communication stated, relevantly: I refer to my letter to you of 26 April 2001, regarding the consideration of cancellation of your visa under section 501 of the Migration Act 1958. You were provided with a copy of the section 499 Minister's Direction No. 17 with that letter. This Direction has now been replaced by section 499 Minister's Direction No.21. I have attached a copy of Direction No.21 for your information. In the interests of natural justice, you are provided with an opportunity to provide comments against the new Direction. In order to assist you with identifying the changes between the old Direction No.17 and the new Direction No.21, details are as follows: Changes have been made in paragraph 2.2 by removing advice to decision-makers that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in reaching a decision. The word "generally" has been added to paragraph 2.17. These changes have been made in order to clarify the intent of the Direction. Other changes have been made in paragraphs 2.3, 2.17, 2.19, 2.20 and 2.21 in order to clarify CROC (Convention of the Rights of the Child), ICCPR (International Convention on Civil and Political Rights) and CAT (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) issues. If you wish to provide any written comments or information please submit them for my attention no later than the close of business at this office on 30 September 2001.If you do not respond by this date, a decision whether or not to cancel your visa will be made using the information already held by the Department. … [emphasis in original] 11 The Minister's Direction No 21 stated, amongst other things, the following: Preamble This Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act). The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community. … 2. The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community. … PART 2 - EXERCISING THE DISCRETION 2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. … PRIMARY CONSIDERATIONS 2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children. Protection of the Australian Community 2.4 The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence. 2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include: (a) the seriousness and nature of the conduct; (b) the likelihood that the conduct may be repeated (including any risk of recidivism); and (c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence). a. The seriousness and nature of the conduct 2.6 It is the Government's view that the following are examples of offences which are considered by the Government to be very serious: … (f) murder, manslaughter, assault or any other form of violence against persons; … b. likelihood that the conduct may be repeated (including any risk of recidivism) 2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment: … the extent of rehabilitation already achieved, the prospect of further rehabilitation and positive contribution to the community the person may reasonably be expected to make. c. general deterrence - the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways: the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes. Expectations of the Australian Community 2.12 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 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. … OTHER CONSIDERATIONS 2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include: (a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community; … (b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen: … (c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere; (d) family composition of the non-citizen's family, both in Australia and overseas; … (g) the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter); (h) any evidence of rehabilitation and any recent good conduct; (i) whether the application is for a temporary visa or permanent visa; … (k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501. [emphasis in original] 12 Given the nature of the crimes of which the appellant had been convicted and sentenced, there was no issue about the appellant failing the "character test" for the purposes of s 501 and the consequent enlivening of the power in the Minister provided for by s 501(2). 13 The appellant had been interviewed in April 1998 by an officer of the Department as part of the procedure leading up to the attempt to deport him under ss 200 and 201 of the Act. He was interviewed again in September 2001 and August 2002. The appellant's brother had been interviewed in 1998. 14 The appellant's lawyers put submissions to the Department by letter of over five pages dated 15 October 2001. The first three pages dealt with legal issues said to bar the exercise of the power. The next two and a half pages dealt with the discretion involved in the exercise of the power. The topics covered in those two and a half pages included risk to the Australian community, the effect of the appellant's removal from Australia on the appellant's family, the appellant's personal background, and the expectations of the Australian community. Each of these matters was identified by Direction No 21 as important, as common sense would dictate in any event. The following was, amongst other things, stated in the letter of 15 October 2001: Risk to Australian Community You have much information concerning [the appellant's] background and current circumstances. You have also had an opportunity to interview [the appellant]. It is conceded that [the appellant] committed very serious crimes. These occurred at a time when he was young, impressionable and mixed up with criminals. Since his arrest and incarceration, he has lost contact with his former associates. The structure and discipline of gaol has allowed him to model a life that is now crime free and productive. In our submission, the material you have, together with [the appellants'] exemplary conduct whilst serving his sentence, amply demonstrates that instead of the violent criminal he was prior to his incarceration, [the appellant] is apart from serving his punishment, now a decent, ordinary member of our society. It is contended that there is no reason to harbour any fear that [the appellant] might commit the same [or any] offences. His conduct over the past 13 years compels an opposite conclusion. The Minister made submissions before the Tribunal about the risks [the appellant] posed to the community and as to the deterrent effect of deporting of [the appellant]. The Tribunal made findings about these issues. The Tribunal's findings are relevant. It is contended [the appellant] poses negligible, if any, risk to the Australian community if he is permitted to resume his lift [sic] in the Australian community. … Expectations of the Australian community It is accepted that the Australian community expects criminal offenders to be punished. However, our society is infused with the notion of equity and justice. This belief has become that part of Australian culture more colloquially known as giving someone a "fair go". The Australian community stands up for the underdog. It reaches out to the downtrodden. It shuns conceit and hypocrisy. It finds room for the marginalised. It has an acute sense of proportionality. [The appellant] came to Australia under our humanitarian program. We accepted him as a person in need. He had a disrupted youth. In our submission, the Australian community will consider [the appellant] 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 press for [the appellant's] removal from Australia. [emphasis in original] 15 The last sentence, no doubt, had an obvious typographical error - the omission of a negative. 16 The letter of 15 October 2001 was accompanied by a memorandum dated 15 August 2001 from an officer at the prison where the appellant was then kept which attested to his rehabilitation and reform. 17 The letter of 15 October 2001 also made a request for the Department's submission to the Minister, stating: We note that the Department's practice has been to prepare and provide the Minister with a submission paper summarizing the issues in the case in question. We request that you provide us with a copy of the submission paper so that we can address any matters that arise from it before it is sent to the Minister. 18 Later, in 2002, before the decision of the Minister the subject of complaint, the Department refused this request. 19 The appellant's lawyers wrote another letter to the Department which bore the date 15 October 2001. This letter, however, would appear to have been sent in January 2002. This is certainly when it was received. (The primary judge referred to this as the January 2002 letter.) This letter stated, amongst other things, the following: We confirm your advice that you do nor intend to obtain any professional reports concerning our client. We also confirm our advice that our suggestion that you obtain professional reports on [the appellant] is to enable you to objectively verify his assertions that he is a reformed man and poses no risk to the Australian community. In light of your decision to not obtain any professional reports on [the appellant], and in light of the fact that you have not raised any issues concerning the topic with [the appellant] 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 appellant] can have an opportunity to respond before the matter goes to the Minister. If you accept that [the appellant] 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 appellant's] repentance and rehabilitation will be well received by the Australian community. We submit that the expectations of the community is that [the appellant] has served his punishment and ought not be further excluded from the society he has chosen to live in: the Australian society. Should you disagree with our submissions, we submit alternatively that the expectations of the Australian community is not determinative of the matter. The Migration Act gives the Minister a discretion to cancel [the appellant's] visa. That discretion is enlivened because of [the appellant's] criminal conduct. To treat the expectations of the Australian community as determinative of the outcome of this case is to negate the discretion that Parliament has plainly entrusted to the Minister. The Australian community often forms opinion and reaches conclusions on limited and selective reportage. This has the capacity to create misconceptions and misjudgments. On the other hand, [the] Minister has the benefit of much relevant information on [the appellant] and the advice [of] his departmental officers. He is able to make an informed judgment in the case. In our submission, the Minister bears the responsibility of the ascertaining the [sic] collective conscience of the Australian community. He has to act without fear or favour. He must temper the rhetoric of extreme views with the interest of innocent members of the community such as [the appellant's] mother, siblings and other relatives. 20 By letter dated 23 January 2002, the appellant's lawyers sent five letters to the Department for consideration. The letters were from the appellant's sister who had come to Australia in 1992 under the family reunion programme, the appellant's sister-in-law (his brother's wife), the appellant's niece and the appellant's nephew. The letters are short, but further powerful pleas on the appellant's behalf which dealt with, amongst other subjects, his reformed character. 21 The appellant himself put a submission in writing in August 2002, which dealt, amongst other things, with his changed character. In this letter he said: My name is [appellant's name]. I understand that you are reviewing the status of my visa. This review of my visa has caused me great anxiety. I would like to take this opportunity to explain to you the particular circumstances of my situation. 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. Since my release from prison, I have lived with my sister whose home is near my mother's house. This has enabled me to care for my elderly mother. One week after being released, I obtained employment at ZIP Vic communication, as a sales assistant. While I don't want to be a burden on society, I had to stop working due to illness (see attachment). I know that I get sick if I am stressed or worried. My illness is getting better now, and I will start working at Four Seasons Restaurant in Church Street Richmond as a kitchen hand on September 3 2002. 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. At the moment I have a lot of support from my family, my good friends and from [name provided] at The Brosnan Centre. I regularly contact him for advice and counselling. Also I am now more mature. I understand what is good and what is bad. I have learnt a lot from my past, so I strongly believe that I will not fail again. 22 An officer of the Department prepared a submission to the Minister dated 17 October 2002. The submission was fifteen pages in length and annexed over one hundred pages of primary material which included all the material submitted by, or on behalf of, the appellant. The submission dealt with the material and issues in a measured and balanced way. (No complaint was made before the primary judge or on appeal in this regard.) 23 In the submission, the officer dealt with the question of recidivism over three pages, setting out aspects of the material, virtually all of which pointed to the rehabilitation of, and reformation of the character of, the appellant. This section concluded: In consideration of the above factors, it is open for you to find that [the appellant] is at a low risk of recidivism. 24 The submission dealt with the expectations of the Australian community by referring to [2.12] of Direction No 21 (see [11] above), and thereafter stating: [The appellant's] legal representative submits that "[the appellant's] repentance and rehabilitation will be well received by the Australian community. We submit that the expectations of the community is that [the appellant] has served his punishment and ought not be further excluded from the society he has chosen to live in: the Australian society." "The Australian community often forms opinion and reaches conclusions on limited ad selective reportage. This has the capacity to create misconceptions and misjudgments…" "In our submission, the Minister bears the responsibility of the ascertaining the collective conscience of the Australian community… He must temper the rhetoric of extreme views with the interest of innocent members of the community such as [the appellant's] mother, siblings and other relatives." The offence committed by [the appellant] is considered by the Government to be very serious. It is open for you to find that the majority of the Australian community might expect that a person convicted of criminal offences such as those committed by [the appellant] would have his visa cancelled and not be allowed to remain in Australia. 25 On 24 October 2002, the Minister cancelled the appellant's visa. The appellant was informed of this by letter dated 19 November 2002. 26 The application to the Hight Court under s 75(v) was made on 24 December 2002.

The Minister's Reasons 27 On 4 June 2003, the Minister signed a document of six pages which set out his reasons for his decision on 24 October 2002 to cancel the appellant's visa. The Minister stated that he took into account all of the Departmental submission and all of the annexures thereto. As to the approach to the exercise of the power, the Minister stated the following: …While not bound by my own General Direction number 21 - Direction Under s 499 Visa Refusal and Cancellation Under section 501 of the Migration Act 1958 ("the Direction") - following my usual practice I proceeded to be guided by the Direction. I consider that the Direction properly indicates how the powers and functions of the kind here should be exercised. 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 appellant]. 28 Thus, two factors were apparently uppermost in the Minister's consideration of the appellant's position: the protection of the Australian community and the expectations of the Australian community. 29 As to the protection of the Australian community, the Minister began by summarising his approach to this question: I gave primary consideration to the protection of the Australian community, taking into account the seriousness and nature of [the appellant's] conduct, the likelihood that such conduct might be repeated and general deterrence. 30 The Minister then dealt with the questions of protection of the community by considering separately the factors referred to in [2.5] of Direction No 21: (i) the seriousness and nature of the conduct; (ii) the likelihood that the conduct may be repeated (including any risk of recidivism); and (iii) general deterrence. 31 The Minister dealt with the circumstances of the crime. In doing so, the Minister referred to the comments in 1990 of the sentencing judge about the brutality of the crime, the explanations given by the appellant to the Department about the circumstances of the crime and the police report of the incident. In this regard, the statement of reasons included the following: In sentencing [the appellant] on 17 January 1990, O'Bryan J stated: "The murder of Tran has no redeeming features or mitigating circumstances, in my opinion. Tran did not provoke you or attack you in Victoria Street. I find, as I believe the jury did, that you pursued Tran for some distance, not only in Victoria Street but into other streets and up a lane armed with a M1 carbine until finally you cornered him in a small enclosed garden where you shot him in the head in a very cold manner." … … I considered [the appellant's] claims during his interview with the department, that the incident occurred in the context of a group fight in which a lot of people were involved and that he had not armed himself for the fight, but that during the fight he "just picked up a gun". I further considered [the appellant's] claims that he did not have a clear recollection of events that immediately preceded and culminated in the commission of the crime. … I further considered the Homicide Report dated July 1990, where the Officer in Charge advised that: "…on the night of the offence two opposing Vietnamese groups met in a restaurant … the deceased belonged to a Footscray based group, [the appellant] belonged to a Richmond based group. "…Immediately after the shootings [the appellant] left Victoria and went into hiding in the Vietnamese Community at Cabramatta, Sydney. "…[The appellant] was interviewed by Homicide Squad on … He stated that he was in fear for his life when the brawl started in Victoria Street. He stated that he believed that the opposing group were going to kill him. He further stated that he ran to a car parked across the road in Victoria Street and found the firearm on the back seat of the car. He then just fired it indiscriminately in a blind panic, not knowing if he had shot anyone". … 32 The Minister then dealt with the evidence of the rehabilitation and reform of the appellant. The final paragraph of the statement dealing with "recidivism" stated: Whilst on parole, [the appellant] reported to the Carlton Community Correctional Services. During his parole period, [the appellant] was required to address his offending behaviour specifically through avoiding negative peer associations and leading a law-abiding life. I noted the comments made by [the appellant's] case worker, who advised on 27 September 2002, that [the appellant] 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 appellant] on 9 June 1988, I placed relatively little weight on his risk of recidivism. [emphasis added] 33 The last sentence of this paragraph is not without its difficulty of expression. In its context, however, we think it is to be understood as the Minister, whilst recognising the body of material attesting to the appellant's reform and to the low risk of recidivism, giving that low risk little weight compared with other factors because of the serious nature of the crime. 34 The Minister then dealt with deterrence and said the following: The very serious offences committed by [the appellant] 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 appellant'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. 35 The Minister then dealt with the expectations of the Australian community. The Minister stated the following: I gave primary consideration to the expectations of the Australian community. In accordance with the Government's view that is expressed in paragraph 2.12 of the Direction, I considered that the Australian community expects non-citizens to obey Australian laws while in Australia. In sentencing [the appellant] on 17 January 1990, O'Bryan J stated: "…Conduct of this nature cannot be tolerated in this community, and indeed anywhere in this country. Australians, not accustomed to street warfare on the scale which occurred in Victoria Street, look to the courts to stamp out such violence by imposing appropriate punishment on the offenders. "You were granted refugee status and protection in this country when you fled from Vietnam in 1980 but you have abused the opportunity of a new life in a free society … In 1986, again in 1987, and again in 1988, you came before courts on a series of offences and were convicted." … The offence committed by [the appellant] 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 appellant's] visa to be cancelled and him to be removed from Australia. Overall I placed moderate weight on this consideration. 36 The Minister then dealt with the degree of hardship to the appellant and his family, and international conventions, and concluded as follows: In deciding to exercise my discretion to cancel [the appellant's] visa, I took into account that there would be hardship to [the appellant] and his immediate family if he was to be removed from Australia, and that given [the appellant'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 appellant's] crimes, the disruption these crimes have caused others and my responsibility to protect the Australian community outweighed all other considerations referred to above. In the circumstances I exercised my discretion to cancel the visa under s 501(2).

The Arguments Before, and the Decision of, the Primary Judge 37 The appellant asserted a denial of procedural fairness by an alleged failure to disclose to him and his advisers two adverse matters in the Departmental submissions, thereby denying him the opportunity to comment on them. These two matters were expressed by the primary judge at [30] of her reasons as: … 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." 38 As to the recidivism issue, it was said that there was a critical difference between some (ie. low) risk of recidivism and no material risk of recidivism. It was said that this question of risk of recidivism would have been specifically addressed. Further, the assumptions by the appellant's lawyers that recidivism was not an issue had been made clear to the Department in the second letter dated 15 October 2001 probably sent in January 2002 (see [19] above), and, this made clearer the obligation to alert the appellant to this issue still being relevant. 39 As to the expectation of the Australian community issue, it was said that further evidence and submissions would have been provided about this subject. The affidavits of Peter Nordern SJ, Sr Brigid Arthur, Ms Ann Morrow and Mr John Power were referred to. These affidavits dealt with what these people believed the expectations of the community were or would be. These affidavits sought to qualify the deponents to speak of what members of the Australian Community would think. The affidavits included paragraphs such as: A large portion of the Australian community would consider that someone in [the appellant'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 appellant's] visa to be cancelled. … 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. … 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. 40 The primary judge rejected these submissions. Her Honour referred to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592: That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. 41 Her Honour considered that procedural fairness did not require the provision of the Departmental submission to the appellant and that the appellant and his lawyers had had squarely drawn to his and their attention the issue of protection of the Australian community including recidivism and the relevance of the expectation of the Australian community. 42 The primary judge also rejected the submission that the appellant's lawyers' letter as to the assumption that recidivism was not an issue, could somehow raise a requirement in the Minister to act in a manner differently to how he had acted. 43 The primary judge concluded that the issue of the risk of recidivism and the expectations of the Australian community were squarely before the appellant and that he had a full opportunity to deal with those issues. He could have placed before the Minister affidavits of the kind referred to at [39] above, which her Honour thought, in any event, only restated the submissions already put.

The Submissions on Appeal 44 The appellant filed written submissions which in large part repeated the submissions put to the primary judge. 45 These submissions appear to proceed on the basis that the Minister was obliged to provide the appellant with a copy of the Departmental submission. 46 As to the risk of recidivism, it was said that the reference in the Departmental submission to "low" risk was different from negligible risk and the appellant should have been apprised of how the Departmental submission approached the question. 47 As to the expectations of the Australian community, the submissions asserted that knowledge of the Departmental submission would have led to an appreciation of the need for further material. 48 In oral submissions, Mr Nash QC who, with Mr Krohn, appeared for the appellant, put the matter somewhat differently. 49 It was said there was a discrepancy between how the appellant was led to believe his case would be decided by the terms of Direction No 21 and how the Departmental submission and Minister's reasons did in fact deal with it. Direction No 21, it was said, created a legitimate expectation in having the decision made in accordance with its terms and a deviation from that approach required the appellant to be given an opportunity to be heard on the different approach; and this discrepancy in approach affected the two issues of expectations of the Australian community and protection of the Australian community. 50 As to expectations of the Australian community, it was said that [2.12] of Direction No 21 (see [11] above) would lead one to believe that there is some objective criteria or measurement of the expectations of the Australian community and that they will be measured at the date of the decision and will be determined by reference to the circumstances of the individual whose visa is subject to cancellation. 51 The Minister, it was said, departed from this approach, and judged the expectations from the time of the conviction because he looked only at the seriousness of the offence. 52 As to the protection of the Australian community, it was said that neither the Departmental submission nor the reasons, canvassed the question of the protection of the community. The three elements of seriousness of offence, risk of recidivism and deterrence were dealt with, but not protection of the Australian community, as a coherent whole. Mr Nash put the following: It's our contention that we had a legitimate expectation not that the Minister would deal with the subheadings, if one can call it that, of protection of the Australian community, but that he would in fact deal with the question of risk to the community, and for whatever reason, he has not done that. … …[T]here was a legitimate expectation that if one looks at paragraph 2.5 [of Direction No 21], that the level of risk to the community would be taken into account. This does not appear to have taken place because in order to do that logically, it is not sufficient to say, "I give little weight to the risk of recidivism, heavy weight to the seriousness of the offence," because the seriousness and nature of the conduct, in our submission, need to be linked to the likelihood of the conduct being repeated in order for it to be any - those two things together to constitute any measurement of risk to the community. … …[W]e had a legitimate expectation that risk in terms - that seriousness would be weighed as against risk of recidivism, not separated from risk of recidivism, made a separate heading and risk of recidivism effectively swept under the carpet because that is not how direction 21 reads. The risk of recidivism is directly related to the question as to the protection of the community. 53 Thus, as to both expectations and protection of the Australian community there was an asserted legitimate expectation said not to have been fulfilled: to use Mr Nash's words: …that the Minister would deal with both expectations of the Australian community and protection of the Australian community in a manner different from that in which he did deal with them, and that therefore there has been a failure of natural justice giving rise to jurisdictional error.

The Disposition of the Appeal 54 Procedural fairness in these circumstances did not require the Departmental submission to be provided to the appellant. Natural justice or procedural fairness is to be equated with fairness in all the circumstances: Kioa v West (1985) 159 CLR 550, 583. What are required are fair and flexible procedures, bearing in mind the circumstances of the case, the issues involved, and the nature of the enquiry and the decision: Kioa v West at 583-85. There is no rule that the person the subject of decision must be given any departmental submission given to the decision maker: cf Local Government Board v Arlidge [1915] AC 120. The submission was a balanced and measured collection and distillation of voluminous material. It contained no adverse matter to which the appellant had not otherwise been alerted by Direction No 21, the apparent nature of the power and common sense. The appellant had had made known to him the questions relevant for him to address and he had an adequate opportunity to do so. 55 The issues of recidivism, the protection of the Australian community and the expectations of the Australian community were all plainly drawn to the attention of the appellant. Nothing said or done by the Minister or the Department lessened the responsibility on the appellant and his advisers to put to the Department all that they wished to on those issues. 56 Having put what they wished to on those issues, a Departmental officer distilled that and other material in the submission. No new adverse issue arose. All the primary material submitted by the appellant was provided to the Minister. The fact that the author of the submission may have expressed herself somewhat less favourably to the appellant than the appellant would have wished does not lead to the requirement of a further round of submissions in order that the appellant comment on how the material put forward for consideration had been dealt with. This is so at least where (as here) the submission is a measured and balanced drawing together of the relevant material. 57 In dealing with the risk of recidivism, the submission was substantially favourable to the appellant. No new and adverse issue arose. 58 The second letter, dated 15 October 2001 (probably sent in January 2002), with its request for notification as to the recidivism issue, was not a basis for creating any further duty upon the Minister to disclose how he or the Departmental officer was approaching the matter. The appellant knew that the seriousness of his crimes, his rehabilitation and the risk of recidivism were very important issues to address. He addressed them. Indeed, in August 2002, the appellant once again addressed the issue of recidivism in his letter of 29 August 2002. 59 As to the expectations of the community, this topic was squarely before the appellant. He put what he wished to put on that topic. It is a topic which could be approached, if the decision-maker wished to do so, on a quantitative or evidential basis. If this were done, an issue might arise as to the need to put any such evidence to the person the subject of the decision. However, the "expectations of the Australian community" is fundamentally a political notion. The Minister, as the member of the Executive responsible to Parliament, of which he is an elected member, is charged with the assessment of this question. It is not a question for decision only upon evidence placed before him. The Minister may consider the views of others (as he no doubt would have considered the views of Father Nordern, Sr Brigid Arthur, Ms Morrow and Mr Power if they had been placed before him); but, ultimately, the Minister's views as to what are the "expectations of the Australian community" are reflective of a political judgment by an elected Minister of the Crown. As we have said, how the Minister approaches that question in any given case could raise issues of procedural fairness. For example, if the Minister received the views of others as to the issue which were adverse to the person the subject of the power to be exercised, procedural fairness may dictate giving the subject an opportunity to deal with such material. Nothing of that kind was present here. 60 The above deals with the submissions put in writing. 61 As to the oral submissions, the argument about the expectations of the Australian community founders at the outset. Direction No 21 [2.12] contemplated in terms that"visa cancellation and removal of the non-citizen may be appropriate because of the nature of the … offences are such that the Australian community would expect that person … should be removed from Australia." Further, [2.12] of Direction No 21 does not limit the decision to one based on objective criteria measured at the date of the decision and determined by reference to the circumstances of the individual; [2.12] is broader than that. It encompasses reference to the nature and seriousness of the offence and is wide enough to permit the decision maker to assess the community's expectations in such manner (within the limit of lawful administrative decision making) as he or she thinks fit, including, as here, the Minister's own views about the matter. 62 There was no disconformity between the terms of Direction No 21 and the approach of the Departmental submission or of the Minister in dealing with the expectations of the Australian community. 63 As to protection of the Australian community, the statement of reasons of the Minister and the Departmental submission both dealt with the subject. It is an overly technical reading of his reasons to say that the Minister dealt with the elements of [2.5] of Direction No 21 (see [11] above), but not the issue of the protection of the Australian community at the time of decision. His expression of view as to the seriousness of the nature of the crime was not a mechanical recitation of a past fact. The Minister viewed the murder (including its nature and circumstances) as something done by this man of sufficient gravity as to cause him to give little weight to the (otherwise powerful) evidence going to rehabilitation and lack of recidivism. That is an approach which was open in considering the protection of the Australian public. The Minister also considered deterrence to be a factor. 64 These are not views all would hold, but the Minister was directing himself to the question of the protection of the Australian public in 2002, and these views were not capricious, arbitrary or irrational. There was no disconformity in this approach with the terms of Direction No 21. 65 The above should not be taken as support for a proposition that any variation in approach from Direction No 21 would necessarily lead to a conclusion of a breach of the rules of procedural fairness. 66 The employment of s 501 in respect of people absorbed into the Australian community for many years may appear harsh. That circumstance is given little weight in Direction No 21 and was given little weight by the Minister in making the decision in question. 67 There was, however, no denial of procedural fairness in connection with the decision in question. There was no error displayed by the primary judge. The appeal should be dismissed. 68 As to costs, the matter was heard primarily on 10 November 2003. On that day we raised a question with counsel as to the operation of s 501 of the Act and whether it applied to the appellant. The respondent filed submissions about that. The appellant did not take up any point about that matter when the appeal was called on again on 12 November. In all the circumstances, we do not think it appropriate to order costs past 10 November.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gyles, Conti and Allsop.

Associate: Dated: 21 November 2003 Counsel for the Appellant: Mr P G Nash QC Mr A F Krohn

Counsel for the Respondent: Mr C Gunst QC (on 12 November only) Mr W Mosley

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 10 and 12 November 2003

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (1)

Cases Cited (3)