Grounds 2 to 4
28 This was a not a case where terms of imprisonment in respect of convictions led, inexorably, to satisfaction that Mr Nafady did not, indeed could not, pass the character test (qv s 501(7) of the Act). That did not prevent administrative satisfaction that, nonetheless, Mr Nafady did not pass the character test. The Minister recognised this, with respect correctly, in his reference at [46] of his reasons to s 501(6)(d)(i) of the Act, which is directed to satisfaction as to a risk that a person would engage in criminal conduct if allowed to remain in Australia.
29 As mentioned above with reference to Nathanson and Plaintiff M1/2021, the Minister's task was one of assessing and weighing, to the end of deciding whether Mr Nafady had satisfied him that he passed the character test. In undertaking that task, the Minister might, permissibly, take into account a summary of evidence given at a trial prepared by officers of his department: Viane, at [19]. He was not obliged himself to undertake an analysis of that evidence. He might permissibly adopt an analysis undertaken by his department. The business of government would be quite impossible were this not so. Of course, if adoption of a departmental summary or analysis is conducive to a jurisdictional error, that the Minister did not personally perform the same is no obstacle to a conclusion that, by their adoption, he has committed such an error. To adopt a summary or analysis is to adopt not only its virtues but also its vices in terms of its fairness, comprehensiveness, rationality and logicality.
30 In the present case, the Minister neither had such a departmental summary nor such an analysis, although he did adopt draft reasons as prepared by his department.
31 The Minister might also, permissibly, take into account a summary of evidence offered not by his department but rather by a judge either at a sentencing stage or on appeal. As to acting on a summary at sentencing stage, the weight one might afford such a summary may be affected by the later quashing of the convictions concerned and the reasons why those convictions were quashed. In turn, the weight one affords an evidentiary summary offered in an appellate judgment the result of which was an order for a retrial may be affected by the evidence given on the retrial, the knowledge that an acquittal resulted and, as was the case here, by the reasons for acquittal given by the judge who conducted the retrial. Yet further, in each instance, the weight one gave a summary may well be affected by whether it was a summary of the prosecution evidence alone or the whole of the evidence given at trial and, in the case of the charge that proceeded to a retrial, by whatever there was in the material concerning the evidence given at the retrial and any reasons given in respect of the outcome on the retrial.
32 The Minister also had before him a representation made on behalf of Mr Nafady in response to the statutory invitation. That representation, inter alia, made particular reference to the reasons for acquittal as to why it was the Minister should be satisfied that Mr Nafady passed the character test. That representation, was, as Plaintiff M1/2021 confirms, a relevant consideration with what is necessary to yield a conclusion that it has been taken into account varying according to the circumstances of a given representation, as explained in the observations from Plaintiff M1/2021 set out above.
33 The Minister does, as mentioned, state that he conducted an analysis of the material before him but, as also mentioned, gives no indication as to what was that analysis. He has not, as ordained in Nathanson and Plaintiff M1/2021, made particular reference to the material before him, exposing how he has evaluated and weighed that material insofar as it concerned the undertaking of the conduct the subject of the charges in respect of which convictions were quashed, which resulted in acquittal or which were not further proceeded with. Neither does the Minster engage with that part of the representation made to him which directed attention to the reasons of the trial judge as to why that judge acquitted Mr Nafady at the re-trial. Instead, all the Minister has specified is a resultant conclusion, flowing from whatever unspecified analysis he undertook, that he was "unable to rule out the possibility that Mr Nafady did, in fact, commit the acts of rape in question".
34 Reference was made on behalf of Mr Nafady to observations made by Jackson J in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161, at [86], in relation to the difficulties which may beset the reaching of conclusions administratively that conduct which had been charged criminally occurred. While I respectfully agree with these observations, their place for present purposes is to underscore the deficiency inherent in the Minister's failing to expose at all his "analysis".
35 Mr Nafady's alternative case was that, although there was reference by the Minister, at [11], to a "judicial finding has indicated that he is a credible and reliable person who tells the truth and can be believed", and although the retrial evidence and judicial reasons featured in the representation made to the Minister, a review of the Minister's reasons showed he had not disclosed why, in the face of this material and this representation he was not satisfied that Mr Nafady had not engaged in the conduct charged. I agree.
36 Mr Nafady's submissions to the Minister also put forward many ways in which one might develop the reasoning of the judge on retrial which led to an acquittal. These were repeated on his behalf on the judicial review application. It is not for me to accept or reject such a merits based submission. Rather, for present purposes, that such a submission was made to the Minister merely highlights the error of the Minister's failure to expose his analysis. The surmising undertaken in the submissions made on the Minister's behalf as to what the Minister might have been referring to in generic references to the material before him is no panacea for an absence of exposed analysis.
37 The absence of exposed analysis means that there is no logical or rational explanation in relation to what the Minister has made of the alleged conduct the subject of the six rape charges, having regard to the representation made to him and the material before him. There is no evaluation of the kind required by Nathanson and Plaintiff M1/2021.
38 The Minister's reasons reveal that his absence of satisfaction that Mr Nafady passed the character test was grounded in his inability to exclude the possibility that he had in fact committed the charged offences of rape ([14] and [46]), as well as a pattern of behaviour towards women that resulted in convictions for bail offences and the making against him of intervention orders. The unexposed analysis as to the alleged conduct the subject of rape charges has thus affected the ultimate absence of satisfaction as to passing the character test. That ultimate absence of satisfaction would not be illogical or irrational if it were one which a logical or rational decision-maker could reach on the material: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, at [37] - [38], per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at [23] - [24], per Gummow ACJ and Kiefel J. In circumstances where reasons must be given, that requires that the reasons detail findings or inferences of fact supported by logical grounds. Hence the illogicality or irrationality created by an unexposed analysis. While the reasons which the Minister did give must be read with the observations made in Wu Shan Liang firmly in mind, it is not for me to supply reasons which the Minister did not.
39 It was also put on behalf of Mr Nafady that this was "perverse or even Kafkaesque" on the basis that, "In all but the most extreme cases, the mere existence of a complaint or statement (no matter how lacking in credibility the circumstances of the complaint or the complainant) that a person has engaged in conduct raises at least the possibility that the conduct occurred." By Kafkaesque I understood Mr Moxon to mean that the Minister's approach meant that Mr Nafady faced the surreal predicament of a man presumed by our law to be innocent of any crime having to exclude the possibility that the was a risk that he would in the future engage in criminal conduct.
40 Yet, on closer examination of their text and context, some Kafkaesque qualities of the task that falls upon a non-citizen applying for revocation of this type of cancellation decision and of the Minister in deciding such an application follow from the cancellation and revocation scheme approved by Parliament.
41 As mentioned, Graham confirms that there is a linkage between the cancellation power in s 501(3) and the revocation of cancellation power in s 501C(4) of the Act. It was not necessary in Graham to explore that linkage in detail, only to make the observation, flowing from the text of s 501C(4) of the Act, that this provision made it necessary for the non-citizen to satisfy the Minister that he or she passed the character test. More detailed examination of the linkage in the context of the present case reveals a quite nuanced position.
42 Subsection 501(3), empowers the Minister to cancel a visa if the Minister reasonably suspects that the person does not pass the character test (s 501(3)(c)) and the Minister is satisfied that the cancellation is in the national interest (s 501(3)(d)). Here, the expressed basis for failure to satisfy the character test was grounded in s 501(6)(d)(i) of the Act. That failure occurs where there is a risk that the person would engage in criminal conduct in Australia. Yet all that s 501(3)(c) requires is a "reasonable suspicion" that the person does not pass the character test, not affirmative satisfaction as to that ground.
43 On the other hand, s 501C(4) of the Act imposes no obligation on the non-citizen to satisfy the Minister that it is in the national interest that the cancellation of the visa be revoked. All that is necessary is that the non-citizen satisfy the Minister that he or she passes the character test. Indeed, were the Minister so satisfied, the Minister would be obliged to revoke the cancellation, even though still satisfied that it is in the national interest for it to remain cancelled. The national interest is not a relevant consideration in respect of the exercise of the power conferred by s 501C(4) of the Act.
44 More relevantly for present purposes, although a criterion for cancellation of a visa by the Minister pursuant to s 501(3) is but reasonable suspicion that a person does not pass the character test, revocation of cancellation does not entail a non-citizen satisfying the Minister that there is no basis for a reasonable suspicion that he or she fails the character test. Instead, it is both necessary and sufficient for the non-citizen to satisfy the Minister that he or she passes the character test.
45 The statutory touchstone in s 501(3)(c), "reasonable suspicion", in relation to the risk criterion in s 501(6)(d)(i) of the Act, at least requires that "some factual basis for the suspicion must be shown": see George v Rockett (1990) 170 CLR 104 (George v Rockett), at 115. But, as is made plain by the citation with approval in George v Rockett, at 115, of an observation made by Lord Devlin in Hussien v Chong Fook Kam [1970] AC 942, at 948, a suspicion "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'" It is thus perfectly possible, given the differing tests posited by s 501(3)(c) and s 501C(4) of the Act, for the Minister to retain, even reasonably, a suspicion that the non-citizen does not pass the character test and yet not have before the Minister material which reasonably admits of satisfaction that the non-citizen does not pass the character test. That is so even though, as the Minister evidently considered, the relevant character test touchstone is a risk that the event the person were allowed to enter or to remain in Australia, that the person would engage in criminal conduct in Australia (s 501(6)(d)(i)).
46 There is a qualitative difference even between a reasonable suspicion and a reasonable belief. As was also observed in George v Rockett, at 115, "[t]he facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief …". As to a reasonable belief, and as was also stated in George v Rockett, at 116:
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
[Emphasis added]
Even allowing, for reasons given below, that a reference to the balance of probabilities, as opposed to reasonable satisfaction, is inapt in relation to administrative decision-making, satisfaction that a person does not pass the character test does require reasonable satisfaction that foundational facts for such a conclusion exist. The assent of reasonable satisfaction does require material reasonably admitting of such proof.
47 In context, the proof concerned was reasonable satisfaction that there was not a risk that, in the event Mr Nafady were allowed to enter or to remain in Australia, he would engage in criminal conduct in Australia (s 501(6)(d)(i)).
48 Thus, on examination, although there is a link between s 501(3) and s 501C(4) of the Act in the sense that, the exercise of the cancellation power under s 501(3) may, if a representation is made, necessitate the making of a decision as to whether the exercise the revocation power under s 501C(4) in respect of that cancellation decision, there is no symmetry in relation to the role of the character test in relation to the respective decisions. That cancellation under s 501(3) need only be grounded in a reasonable suspicion may well be explained by a recognition by parliament of the limited materials that may initially be available to the Minister bearing upon whether a given visa holder passes the character test. So the bar has, correspondingly, not been set very high in relation to Ministerial cancellations. In contrast, where s 501C(4) is engaged, the non-citizen will, obviously, have first-hand knowledge about the conduct which occasioned cancellation and thus be better able, by representation and related materials, to persuade the Minister to be satisfied that that the position is not as suspected in relation to failing to pass the character test.
49 Yet in [46] of the Minister's reasons, he stated that he stated that he:
… saw no reason to depart from his previous finding against the character test in Mr NAFADY's case, having regard to his pattern of behaviour towards women that resulted in his convictions for breaching bail conditions and the intervention orders issued against him, as well as the possibility that he did commit rape.
The Minister's previous finding was but a suspicion. Under s 501C(4), he had to be reasonably satisfied that Mr Nafady did not pass the character test.
50 In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), at [58], and in the context of the criterion in s 501(6)(d)(i) of the Act, the Full Court held that a statement in the Minister's reasons that he "could not rule out the possibility of further offending by Mr Sabharwal" was, in substance a finding that there is a risk of him reoffending, approving a statement to that effect by Moshinsky J in Coker v Minister for Immigration and Border Protection [2017] FCA 929, at [62].
51 In this case, however, the Minister has assimilated the differing cancellation and revocation of cancellation tests - "no reason to depart". In context, that assimilation means that it is not possible to regard inability to exclude a possibility as in substance the same as satisfaction as to a risk. That provides another reason why the Minister's decision must be quashed.
52 A past pattern of behaviour can be a rational and logical basis on which to ground satisfaction as to a risk of future behaviour. Such predictive exercises in relation to future risk are well known in law with examples to be found in judicial as well as administrative decision-making: see Fardon v Attorney-General (Qld) (2004) 223 CLR 575, at [225] - [226] per Gummow J for examples in judicial decision-making. All such predictive exercises proceed by reference to a present factual foundation. In relation to administrative decision-making, that factual foundation need not be found in evidence admissible in criminal proceedings. But, in the face of competing material, reasoning as to a risk of engaging in future criminal conduct requires reasonable and rational findings that the foundational conduct occurred, more than what would engender a reasonable suspicion or even a reasonable belief as to the existence of such a risk.
53 Mr Nafady had to engender reasonable satisfaction that there was not a risk that he, if allowed to remain in Australia, would engage in criminal conduct. A risk is well short of a certainty. Allowing that it is satisfaction as to an absence of a risk, what is entailed is similar to, but the reverse of, the type of administrative satisfaction as to a "real chance" of persecution, described in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, especially at 389 by Mason CJ and at 429, by McHugh J; or the real and not remote chance to which Mason, Wilson and Deane JJ refer in Boughey v The Queen (1986) 161 CLR 10, at 21. Even so, satisfaction as to the absence of the legislatively ordained risk must proceed from facts established to reasonable satisfaction on the material before the Minister and by reference to the representation and any other submissions made by the non-citizen. Hence the cardinal importance of an exposed analysis. If none of the criteria in s 501(6) are satisfied, and the only one expressly identified is that in s 501(6)(d)(i), a person passes the character test. If so, a duty arises to revoke the original decision to cancel the visa: see Yasmin v Attorney-General (Cth) (2015) 236 FCR 169.
54 Cases such as the present, where there are no convictions in respect of allegedly criminal conduct but allegations of the commission on multiple occasions of such conduct undoubtedly present particular difficulties for administrative decision-makers in the face of denials by a non-citizen that any criminal conduct occurred. But they also touch on that non-citizen's ability to remain in Australia and not to be in immigration detention.
55 The Minister's finding that was "there is at least a possibility that Mr Nafady did commit rape (even though the evidence available was not considered sufficient to result in his conviction)" ([46], and see also to like effect, [12] of the Minister's reasons). Even though, as Sabharwal allows, such a turn of phrase may be regarded in substance as the same as a finding as to a risk of future conduct, it is not in substance the same as being reasonably satisfied that past conduct, upon which one is satisfied that there is a risk of future conduct, occurred. As is explained at length in relation to administrative decision-making in the joint judgement in Sun, at [61] and following, in keeping with the general observations in Wu Shan Liang, at 282, it is wrong to assimilate such decision-making with adversarial litigation in civil proceedings. It must, by parity of reasoning as I have already stated, be no less wrong to assimilate such decision-making with criminal jurisdiction litigation. In criminal jurisdiction litigation, where there must be proof beyond reasonable doubt by the prosecution, one basis upon which such a reasonable doubt must exist is "if you [the jury or other tribunal of fact] do not accept that evidence (account) [of the accused] but you consider that it might be true": see the modified "Liberato" direction counselled by Kiefel CJ, Bell, Gageler and Gordon JJ in De Silva v The Queen (2019) 268 CLR 57, at [12]. To reason as to foundational facts for satisfaction as to a future risk by reference to an "inability to exclude a possibility" is, in effect, to apply in reverse this part of the modified Liberato direction. Put another way, to engender Ministerial satisfaction as to foundational facts, an inability to exclude beyond reasonable doubt (exclusion of a possibility) that they occurred is insufficient to engender reasonable satisfaction that the foundational past conduct occurred.
56 The Minister also had material before him concerning other conduct in which Mr Nafady had allegedly engaged, both in relation to bail conditions and with respect to alleged conduct, never charged, in relation to other women. The latter was mentioned in police reports. As the Minister recorded, at [44] of his reasons, all of this other material was considered in conjunction with "the other available material".
57 Thus, the errors made in relation to the alleged rape conduct clearly persisted into and affected the Minister's ultimate failure to be satisfied that Mr Nafady passed the character test. In these circumstances, and contrary to a submission made for the Minister, it is impossible to say that the errors were not proved to be material. They at least deprived Mr Nafady of a successful outcome. They were therefore jurisdictional: Nathanson, at [1], [2], [30] and [32].
58 Mr Nafady also alleged that the Minister had merely acted upon untested allegations in police reports, including the report concerning a charge of rape which was withdrawn, because the complainant "was not in a fit state to give evidence": Minister's reasons, [35]. Mr Nafady's submission (at [28]) in relation to this particular charge (then pending and later withdrawn) was that he "strongly denied" the charge. There is nothing in the Minister's reasons which discloses any analysis as to why, by reference to the police reports or otherwise, this denial should be discounted.
59 The Minister, at reasons, [43], expressed a concern about Mr Nafady's ability to "reach out and make contact in the community with women in the community, particularly through social media and online dating applications", if returned to the Australian community. Such "reaching out" had occasioned breach of bail conditions by Mr Nafady. Yet, absent any intrusion of bail conditions, such reaching out and making contact would not, in itself, be criminal conduct in Australia, only lawful conduct.
60 For reasons already given, the Minister, as an administrative decision-maker, was entitled to act on material such as statements in a police report. However, for reasons also already given, where a challenge was made in a representation in relation to conduct in such a report, the Minister was obliged to understand and evaluate that representation. This the Minister did not do in relation to the alleged conduct the subject of the charge which featured in a police report but which was ultimately withdrawn. Where, as here, a police report indicates that an investigation may be re-opened, it suggests that no concluded view has been reached by police. Even more that is so where, as is also the case here, it is apparent from a police report that Mr Nafady had not even been approached to offer him an opportunity to give his version in respect of a complaint.
61 Mr Nafady also relied in relation to findings based on nothing more than the contents of police reports on these observations, made by Colvin J in HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, at [186]:
… in any decision-making context (administrative or judicial) some modes of proof carry considerably more weight than others. Also, the weight to be afforded particular material depends upon the seriousness of the allegation the decision-maker is asked to accept, any inherent unlikelihood of its occurrence and the gravity of the consequences that may flow from making the finding. In the classic exposition of this point by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 363; [1938] ALR 334, his Honour captured its essence by saying 'the nature of the issue necessarily affects the process by which reasonable satisfaction is attained'. If there is no conviction and a party makes a claim that a crime has been committed by another then due 'weight is to be given to the presumption of innocence and exactness of proof is expected'. Likewise, if the claim made is that a person has been wrongly convicted or sentenced or the facts upon which that conviction or sentence were based were untrue then due weight must be given to the character of that claim and its seriousness.
62 These observations, in their reference to Briginshaw v Briginshaw (1938) 60 CLR 336, are not, with respect, readily reconcilable with those of Flick and Perry JJ in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555, although they are similar to those in my separate judgment in that case. Recalling the lesser evidentiary foundations necessary to engender a "reasonable suspicion" or a "reasonable belief", as mentioned above, there is nonetheless in my view enduring relevance in this observation by Deane J (with whom Evatt J agreed) in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; 31 ALR 666 (at 62; 685) as with respect to administrative findings that grave conduct had occurred:
In my view, the Tribunal was bound, as a matter of law, to act on the basis that any conduct alleged against Mr Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation or left, on the material before it, in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had. It seems to me that this conclusion follows, as a matter of law, from the authorities referred to and the reasoning advanced by the Tribunal to establish the proposition as a general principle to be observed by it as a matter of administrative practice.
[Emphasis added]
Even allowing that later authority (Wu Shan Liang) might regard "balance of probabilities" as borrowed from a universe of different discourse, it remains the case that reasonable satisfaction in administrative decision-making that past conduct has occurred requires more than speculation or inability to exclude a possibility that the conduct has occurred.
63 The point really is that, faced with competing accounts as to whether alleged criminal conduct occurred, one an emphatic denial and the other a hearsay statement in a police report, it was incumbent on the Minister, if he were to use such past conduct as a stepping stone to why it was that there was a risk that Mr Nafady would engage in criminal conduct in Australia in the future, to expose his reasoning by reference to material reasonably admitting of that conclusion, that, nonetheless, such conduct had, to his reasonable satisfaction, occurred.
64 Perhaps all that can be said, given that the decision-making is administrative, not judicial, is that, where a grave finding touching on personal liberty must be made, the evaluation as called for in Plaintiff M1/2021 must be exposed, logical, rational and reasonably open on the material to which reference is made in the evaluation. To insist on more is inconsistent with the observations, quoted above, in Plaintiff M1/2021 and, for that matter, with the observations of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35 - 37; to tolerate less is conducive to arbitrariness in dealings by the executive with citizens and non-citizens. A recollection of history and attention to current affairs offers warning enough about why there should be no such toleration.
65 As to other conduct in police reports, Mr Nafady submitted that the Minister "appears to have uncritically accepted untested and uncorroborated accounts, some of which were not even drawn to the applicant's attention by [the police]." The Minister's reasons reveal he did so. Once again, the Minister was not bound by formal rules of evidence. But he was obliged to explain why he chose to act on such reports.
66 For these reasons, grounds 2, 3 and 4 of those in the amended originating application are made out. The Minister's decision must be quashed. A mandamus must issue requiring him a consider according to law whether to, under s 501C(4) of the Act, to revoke the cancellation of Mr Nafady's visa.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.