Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196 | Case summary

REASONS FOR JUDGMENT BENNETT AND BUCHANAN JJ: 3 On 16 July 2007 the Minister cancelled the appellant's residency visa. He did so because the appellant did not pass the character test established by s 501(6) of the Migration Act 1958 (Cth) ('the Act') and because, in the judgment of the Minister, there was insufficient reason to exercise a discretion in favour of the appellant nonetheless permitting him to remain in Australia. An application seeking judicial review of the Minister's decision was rejected by a judge of this Court on 11 October 2007 (Ngaronoa v Minister for Immigration and Citizenship [2007] FCA 1565). 4 The appellant was born in July 1975. He is a citizen of New Zealand. He came to Australia when he was 20 years old, in 1995. On 16 August 2002 he was convicted of serious criminal offences including assault occasioning actual bodily harm. He was sentenced to prison for four years and six months. On 23 August 2002 he was sentenced to a term of three months imprisonment for assaulting his then de facto wife. The sentence was served concurrently with the other. On 4 May 2007 he was convicted on a further two charges of assault occasioning actual bodily harm, to which he pleaded guilty. He was acquitted of three other charges. He was sentenced to two years in prison. 5 In his consideration of whether he should exercise his discretion in favour of the appellant, the Minister took into account factual circumstances arising from the events leading to the terms of imprisonment. That included matters which led to the latest charges, including the three charges of which the appellant was acquitted. The information was 'protected information' within the meaning of s 503A of the Act. A summary of the information was provided to the appellant as follows: 'The Department of Immigration and Citizenship has information that is considered "protected" under section 503A of the Migration Act 1958. Although the exact information cannot be released to you, a description of the information may be given. That description follows. In January 2006 you and Ms H were living together in an intimate relationship at 30 McGowen Crescent in Liverpool. Ms H had decided that she wanted to end the relationship with you and tried to leave the house. You stopped Ms H from doing this and in the process you; intimidated her, slapped her, attempted to choke her, demanded she strip off her clothes which she did partially, tied her to a bed using coat-hanger wire, held a knife towards her vagina and threatened to cut her from her vagina to her breasts, rubbed your penis on her buttocks, legs and face, had sexual intercourse with her, then took your antidepressant medication and attempted to force the same medication into Ms H's mouth.' (We have decided there is no reason to publish Ms H's name.) 6 In a letter dated 17 April 2007, to which the summary was attached, along with other material, the appellant was advised that the information in the summary, as well as other information concerning his criminal history, might be relied on to assess whether his visa should be cancelled. The appellant acknowledged receipt of the letter and attached information on 17 May 2007. Although the appellant made representations to the Minister, which were sent to the Department by facsimile on 1 June 2007, he made no direct reference to the statement of factual matters in the summary of protected information. His only reference to his conduct was as follows: 'Im sorry for that Ive done. I wish I never done what I did. I have to live with the crimes I did theres not a day that goes by I have regrets I hurt people I love and around me I can only express my sorrows' 7 In a form setting out personal details, which the appellant also sent by facsimile on 1 June 2007 (although it was dated 18 May 2007), he asserted that if he was returned to New Zealand both he and a young daughter living in New Zealand would be killed by a gang called the Mongrel Mob of which he had previously been a member. An officer of the Department, as a result, undertook an assessment of whether obligations arising under international treaties, to which Australia is a party, might bear upon the decision whether to cancel his visa. It was determined that they did not. On 20 June 2007 a copy of the assessment was sent to the appellant so he could comment, if he wished to do so, before 4 July 2007. 8 By 4 July 2007 the appellant had made no response. The officer of the Department rang him. The appellant said he wished to provide further information and was provided a short further time in which to do so. The appellant made further written representations about this matter on 8 July 2007. 9 The Minister took into account many things when he made his decision to cancel the appellant's visa. Some favoured not cancelling the visa. Those matters included the appellant's relationship with a young son resident in Australia, the financial support which the appellant gave from time to time to his son and his son's mother and the fact that the appellant's mother, brother and sister lived in Australia. Although a number of matters supported non-cancellation of the appellant's visa they were outweighed by the perceived need for protection of the Australian community against the risk of further aggravated criminal behaviour by the appellant. The Minister also took into account the appellant's claim that both he and his daughter living in New Zealand would be at risk from the Mongrel Mob, although he accepted Departmental advice that New Zealand police were able to give them adequate protection. 10 In the proceedings before the primary judge the appellant was represented by counsel. The amended grounds of the application for judicial review (which were signed by counsel) were as follows: '1. The Minister's decision was vitiated by jurisdictional error in that, in the exercise of his discretion to cancel the Applicant's visa for failure to pass the Character Test: a. the Minister took into account alleged criminal conduct which was a consideration made irrelevant by the Act; b. in the alternative, in taking into account the alleged criminal conduct, the Minister misapplied the standard of proof required in civil matters where criminal conduct is alleged, in a manner which made his decision unreasonable; c. further, and in the alternative, in taking into account the alleged criminal conduct, the Minister denied the Applicant procedural fairness, in that whilst the substance of the alleged conduct was put to him, he was not told nor was it apparent on the fact of the known material that allegations of conduct would be taken into account in the exercise of the discretion.' Each of these grounds was rejected. 11 As to the first ground the primary Judge took the view, correctly, that a failure to prove a criminal charge beyond reasonable doubt did not immunise the conduct from consideration by the Minister in the exercise of a general discretion. The substance and detail of the allegations were put to the appellant. He made no response denying the factual allegations which had been drawn to his attention. The fact that a jury did not convict him of specific charges did not put his conduct beyond legitimate consideration. 12 In support of the second ground it was argued before the primary Judge that the Minister should not have applied a 'standard of proof' by reference to 'the balance of probabilities' but should have applied the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw)). Such an argument seems to postulate some third standard of proof between the criminal standard and the civil standard. The proposition has been decisively rejected (Briginshaw at 362-3; Rejfek v McElroy (1965) 112 CLR 517 at 521-2; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1). In any event, the proposition is misplaced. We agree with the primary Judge that it was a matter for the Minister what weight to attach to particular matters and how to evaluate them for the purpose of the exercise of his discretion. Provided the Minister does not act arbitrarily or capriciously, or outside the limits of jurisdiction established by the Act, the exercise of his discretion is not subject to judicial review. 13 As to the third ground, it was argued before the primary Judge that the appellant was denied procedural fairness in relation to the use of the protected information. The information was detailed. It was evident that it raised matters which would receive consideration. As we earlier observed the appellant made no comment about the information. It must be assumed he chose not to. This ground was also correctly rejected having regard to the way in which the matter was argued at first instance. 14 On this appeal no direct challenge has been made to the findings of the primary Judge. No error in his Honour's reasons was identified. Instead, the appellant, now represented by different counsel, seeks to argue the appeal upon a substantially different foundation. A proposed amended Notice of Appeal seeks to raise the following grounds: '1. His Honour in the Court below erred in not finding that the appellant was denied natural justice and procedural fairness in that the respondent did not give him a sufficient opportunity to be heard in regard to the issues relevant to the cancellation of his visa. 2. His Honour also erred in not finding that [sic] was denied natural justice and procedural fairness in that the appellant was not given an objectively adequate opportunity to respond to an International Treaties Obligations Assessment (ITOA) that determined he was not owed any obligations under relevant international treaties. 3. His Honour also erred in not finding that the respondent's purported decision to cancel the appellant's visa was vitiated by jurisdictional error in that the respondent ignored relevant material.' 15 The first ground bears a superficial similarity to the third ground dealt with by the primary judge although the written submissions for the appellant on the appeal make it apparent that the argument is advanced in a different way. On balance, and not without some hesitation, we would not deny the appellant the opportunity to advance the first ground of appeal, or to refocus the submissions about the use of the summary of the protected information, within the general ambit of the case advanced to the primary judge, despite the fact that no specific error in the reasoning of the primary judge was articulated. However, for the reasons which follow, this ground of appeal should not be accepted. 16 On 23 August 2001 Mr Philip Ruddock, then Minister for Immigration and Multicultural Affairs, made a 'Direction' under s 499 of the Act to provide guidance to decision makers about the application of s 501 of the Act. It did not bind the Minister personally in any legal way. However, it set out a range of matters generally relevant to assessment of whether a visa should be cancelled on discretionary grounds and was, in fact, used by the Minister as a guide in the present case. A copy of the Direction was provided to the appellant, along with other material, at the same time as the summary of protected information. One matter referred to was as follows: '2.6(d) sexual assaults are particularly repugnant to the Australian community ...' 17 This observation was referred to in an Issues Paper prepared for the Minister in a paragraph about which particular complaint was made on the appeal. It reads: 'Mr Ngaronoa's Sentence Administration Report records that on 04 May 2007, he was convicted of the first two charges both being Assault Occasioning Actual Bodily Harm - T2, and sentenced to a term of imprisonment ... Court records show that he was found not guilty of the third, fourth and fifth charges that relate to the threats made with a knife, the detaining of a person and the sexual assault of a person … Sexual assaults are particularly repugnant to the Australian community … Mr Ngaronoa has not provided any comment directly relevant to the protected information. He has not confirmed the nature of the charges as described to him, including whether he had access to his medication, as true, partially true or false.' (reference to annexures omitted) 18 Counsel for the appellant made particular complaints about the reference to 'sexual assault', submitting that, as the appellant had been acquitted of any charge of 'sexual assault' it was necessary to advise him precisely of how the matters in the summary of protected information might nevertheless be used adversely to him. The same submission was advanced with respect to factual elements of other charges which were dismissed in the Issues Paper. 19 The Indictment against the appellant, arising from the assault on Ms H, was as follows: 'INDICTMENT NEW SOUTH WALES On 2 April 2007 the Director of Public Prosecutions on behalf of Her Majesty charges that Bruce Lee NGARONOA 1. On 27 January 2006 at Liverpool, in the State of New South Wales, assaulted TH, thereby occasioning to her actual bodily harm. AND the Director of Public Prosecutions FURTHER CHARGES that Bruce Lee NGARONOA 2. On 27 January 2006 at Liverpool, in the State of New South Wales, assaulted TH, thereby occasioning to her actual bodily harm. AND the Director of Public Prosecutions FURTHER CHARGES that Bruce Lee NGARONOA 3. On 27 January 2006 at Liverpool, in the State of New South Wales, threatened to use an offensive weapon, namely a knife, to commit an indictable offence. AND the Director of Public Prosecutions FURTHER CHARGES that Bruce Lee NGARONOA 4. On 27 January 2006 at Liverpool, in the State of New South Wales, detained TH without her consent, and with intent to obtain an advantage and immediately before the detaining, actual bodily harm was occasioned to TH. AND the Director of Public Prosecutions FURTHER CHARGES that Bruce Lee NGARONOA 4. On 27 January 2006 at Liverpool, in the State of New South Wales, had sexual intercourse with TH, without her consent, and knowing she was not consenting, in circumstances of aggravation, namely that immediately before the commission of the offence, Bruce NGARONOA threatened to inflict actual bodily harm on TH by means of an offensive weapon. Crown Prosecutor On behalf of the Director of Public Prosecutions' (the first two counts obviously refer to separate matters - again we have omitted full details of the victim's name) 20 No particulars of the charges are available. Each of the last three charges depends on the satisfaction of a number of elements beyond reasonable doubt. It is not known which elements were not established to the satisfaction of the jury, with the result that the appellant was acquitted of these charges. In particular, no suggestion has ever been made by the appellant, in connection with his visa application, that he did not force himself upon Ms H and have sexual intercourse with her, or that she consented to him doing so. 21 It is clear that the appellant's acquittals were expressly acknowledged in the Issues Paper. However, it is equally clear that the conduct disclosed in the summary of protected information, which was not denied in any way by the appellant, raises a clear case that Ms H was sexually assaulted. We agree with the primary judge that the Minister was not bound to disregard all the facts which led to the charges being brought, notwithstanding that the appellant was acquitted of specific charges as framed. In any event, taking the appellant's argument at its highest, the reference in the Issues Paper to the approach of the Government to sexual assault is insufficient to raise a case of denial of procedural fairness in its own right. Evaluation of any such issue must take into account also the appellant's response to the invitation to him to make representations and the Minister's final consideration of all aspects. 22 The appellant made no response about those matters beyond saying, generally, he was sorry for what he had done. 23 The relevant paragraphs in the Minister's lengthy and thorough Statement of Reasons are as follows: (Dealing with the seriousness and nature of the conduct) '11. Mr Ngaronoa was convicted of further crimes of violence committed in January 2006. He had assaulted Ms H whom he had been living with at the time. 12. I considered information that is protected under section 503A of the Act. I accepted that Mr Ngaronoa did not have access to this information but he had been given a summary of the information and from it he could understand the nature of the protected information. Both the protected information and the summary of that information indicated that after Ms H said she wanted to end their relationship she was subjected to a violent assault by Mr Ngaronoa. The attack resulted in Mr Ngaronoa being charged with five offences: 1. Assault Occasioning Actual Bodily Harm 2. Assault Occasioning Actual Bodily Harm 3. Possess Offensive Weapon With Intent To Commit An Indictable Offence 4. Aggravated Detain For Advantage 5. Aggravated Sexual Intercourse Without Consent 13. Mr Ngaronoa was found guilty of the two assault charges for which he was imprisoned for a period of two years with a non-parole period of six months. He was not found guilty of three charges involving the use of a knife to commit an indictable offence, to having detained Ms H and to have had sexual intercourse without Ms H's consent. 14. The standard of proof required when making this decision is that of the balance of probabilities and not the higher standard of beyond reasonable doubt that may be used in a criminal matter. I accepted that the protected information represented what Mr Ngaronoa had been charged with and not what he had been found guilty of beyond a reasonable doubt. The protected information provided me with a detailed account of the allegations against Mr Ngaronoa. I thought it unlikely that it was wrong in every regard. I did not accept that the finding of not guilty on three charges meant that some elements of the assault described did not in fact occur. I noted that although Mr Ngaronoa had the opportunity to comment on the summary of the protected information and the nature of his assault on Ms H that he did not. Mr Ngaronoa offered no mitigating factors for his assault upon Ms H. 15. Having regard to the protected information, a matter of great concern to me was that Mr Ngaronoa appeared to have attempted to force his own anti-depressant medication into Ms H's mouth during the assault and only then took the medication himself. 16. Mr Ngaronoa stated that following his offences of 2001 he was now aware of his disorders, was medicated and had insight into his behaviour. By 2006 Mr Ngaronoa should have been in no doubt that he suffered from various disorders and that he was prone to violent behaviour if he did not take his medication. That he would assault Ms H when he had his medication available to him was of great concern. 17. I found that Mr Ngaronoa's conduct was very serious and that the Australian community is entitled to protection from such conduct.' (Dealing with the likelihood that this conduct may be repeated) '24. By the time of Mr Ngaronoa's release from custody in July 2004 he was adequately prepared to re-enter the community. Despite this, in the space of about 18 months, he had re-offended by violently assaulting Ms H. At that time he was either using his medication properly and assaulted Ms H anyway or he was not using the medication properly despite having easy access to it. Either possibility satisfied me that Mr Ngaronoa remained a very serious threat to the community. 25. I was concerned that during the assault Mr Ngaronoa tried to force his anti-depressant medication into Ms H's mouth. This suggested to me that he had contempt for the very drugs that moderated his behaviour.' (Dealing with expectation of the Australian community) '39. … despite being released into the community in July 2004, both properly medicated and apparently rehabilitated, Mr Ngaronoa offended again in January 2006 by assaulting Ms H with whom he lived. It was a violent attack launched upon Ms H when she said she wanted to leave their relationship. During the attack Mr Ngaronoa attempted to force his own anti-depressant medication into Ms H's mouth and then he took this medication. He was either using his medication properly and assaulted Ms H anyway or he was not using the medication properly despite having easy access to it. Either possibility would show that Mr Ngaronoa remained a very serious threat to the Australian community and this would be viewed with great concern.' (again, we have omitted detail which is not necessary) 24 It is clear that the Minister took into account that the appellant was acquitted of three charges. The focus of attention in the Minister's Statement of Reasons was not specifically upon the sexual nature of the assault upon Ms H. It was upon its generally violent nature and the fact that the appellant had either committed the assault even though medicated or chosen not to take his medication. The matters accorded weight by the Minister arose directly from the facts disclosed by the summary of protected information. Those facts were not falsified or controverted by the three verdicts of acquittal. They were not denied or qualified in any way by the appellant. They were clearly not irrelevant. 25 On the appeal it was contended that the summary did not adequately disclose a number of specific issues because the appellant was not informed, by reference to them individually, that they might count against him. The issues were identified as sexual assault, threats made with a knife, access to medication and when the medication was taken. It was suggested in written submissions that, in light of the acquittals, the appellant had to be told how the information might be used adversely to him. Counsel for the appellant relied in written and oral submissions on the High Court decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ('SZBEL'). 26 In written submissions it was put: '8. The appellant contends that the above [SZBEL] is authority for three propositions. i) The decision maker must give the appellant information adverse to the appellant or at least particulars of such information. ii) The decision maker must identify to the appellant the relevant issues, including all the relevant issues - which the decision maker may take into consideration - that arise in connection with the adverse information. iii) The decision maker must afford the appellant an opportunity to be heard on the issue. 9. The appellant also contends that the judgment of the High Court in SZBEL can be clearly construed as support for a fourth proposition. The appellant contends that where a previous decision maker has determined that issues once possibly relevant are no longer relevant the appellant is then entitled to assume these issues are not of relevance until and unless the decision maker specifically tells him they are again relevant.' 27 It was argued, in effect, that the verdicts of acquittal disposed of factual elements in the summary of protected information unless specifically raised again with a statement of how they might be used. The proposition is logically and legally unsound. In the first place, the matters were expressly drawn to the appellant's attention, after the acquittals, in the context of consideration whether to cancel his visa. Furthermore, the argument receives no support from SZBEL. SZBEL decidedthat, on a review of a decision by a delegate refusing a visa, which is conducted before the Refugee Review Tribunal, an applicant for review is entitled to assume that the matters which arise for consideration concern the reasons provided by the delegate unless advised to the contrary. Counsel for the appellant sought to attribute to a jury verdict some such effect. The argument is untenable. SZBEL had no application. 28 The appellant had clear notice of the matters in the summary, and of the fact that the Minister might take them into account. He advanced no reason why that should not be done, nor did he dispute the factual accuracy of the statements in the summary. There was no denial of natural justice to the appellant. The first ground which the appellant wishes to advance on the appeal should be rejected. 29 The second and third grounds in the proposed amended Notice of Appeal are new forms of challenge to the Minister's decision. They raise no issue about the correctness of the reasons given by the primary judge for rejecting the application for judicial review. No explanation was offered why they were not earlier advanced. They are clearly the result of a change of counsel. There are well established limits on the extent to which a party will be permitted to put a new case on appeal (Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7-8). The purpose of an appeal is to permit the correction of error, not merely to bring a fresh application on different grounds. We would not grant leave to rely on the second and third grounds in the proposed amended Notice of Appeal. We agree with what Moore J has said about this issue so far as those grounds of appeal are concerned. 30 In any event, there is no substance in the new challenges to the exercise of the Minister's discretion. As to the second ground, the argument is that the appellant was not given sufficient time to respond to the assessment made by an officer of the Department of Immigration and Citizenship to the effect that his removal from Australia would not breach international treaty obligations by exposing him to the real risk of torture or cruel punishment. The appellant was, on the material before the Court, given adequate time to deal with any issue arising from the International Treaty Obligations Assessment. The material was sent to him by mail. An officer of the Department spoke to him by telephone. By this time he had had some weeks to respond. He was given a further short period of time in which to make a response. He did then, in fact, make a written submission for consideration by the Minister. No denial of natural justice occurred. 31 The relevant material said to have been ignored in the third ground was the fact that the appellant pleaded guilty to each of the crimes for which he was sentenced to prison. Although, in some circumstances, the utilitarian value of a plea of guilty is recognised at sentencing, there is no substance in the suggestion that the admission of criminal conduct provides a foundation from which to argue that the conduct should be treated less seriously by the Minister than might otherwise be the case. The Minister came to the view that the risk that the appellant would reoffend, in a way that was prejudicial to the interests of the Australian community, outweighed other factors. That was a judgment for the Minister to make and not the courts. 32 Were leave granted to amend the Notice of Appeal and rely upon the second and third new grounds we would reject those grounds in any event. 33 We would make the following orders:

Leave is granted to the appellant to rely upon Ground 1 in the proposed amended Notice of Appeal attached to the written submissions for the appellant filed on 25 November 2007.
Leave to rely upon Grounds 2 and 3 in the proposed amended Notice of Appeal is refused.
The appeal is dismissed.
The appellant is to pay the respondent's costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Bennett and Buchanan.

Ngaronoa v Minister for Immigration and Citizenship

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