Ground 4 - The Respondent failed to accord with procedural fairness when considering the length of time during which the Applicant has made a positive contribution to Australia.
69 As developed in submissions, this ground also, in part, alleged a further breach by the Minister of s 54 of the Act in the making of his decision. Dr Ogawa submitted that the Minister's acknowledgement in paragraph 43 of his reasons of her contribution to the community was "limited solely to her academic and educational pursuits" and "[did] not include her contribution to the tourism and export industry in general through her exposure to the Japanese mass media". She referred to documents given to the Minister by her which contained information on these subjects.
70 A difficulty for Dr Ogawa in relation to this part of her development of ground 4 is that the subject of contribution to the Australian community, however long, though permissibly introduced by the Minister as one for his consideration, is not mandated, either expressly or by implication, by the Act as a subject which must be considered by him. Rather, such is the generality of language employed in the conferral of the power to refuse to grant a visa to a person it admits of this subject being lawfully introduced voluntarily by the Minister. The precise limits of the subject are a matter for the Minister. He was entitled to regard academic and educational pursuits as a contribution to the community. His obligation to "have regard" to the information given to him by Dr Ogawa did not require him overtly to advert to and consider every type of employment followed by Dr Ogawa since her arrival in Australia, much less to consider whether each such employment constituted a contribution to the community. Put another way and having regard to the observations of Sackville J in Singh, referred to above, this was not a "fundamental element".
71 To this extent, ground 4 as developed in submissions has no merit. No breach of s 54 of the Act on this additional basis is disclosed.
72 Unrelated to this aspect of Dr Ogawa's ground 4 submissions was a submission that the Minister had breached s 57 of the Act by failing to give to her a copy of the "Immigration History", being a summary of the various visas granted to her and related decisions concerning the same on and from the initial grant of a visa to her for the purpose of entering Australia. That section provides:
57. Certain information must be given to applicant
(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or part of the reason:
(i) for refusing to grant a visa; or
(ii) for deciding that the applicant is an excluded fast track review applicant; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
Note: Excluded fast track review applicant is defined in subsection 5(1).
(2) The Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) iinvite the applicant to comment on it.
73 Dr Ogawa submitted that the immigration history contained false or misleading information and that, in compliance with s 57 of the Act, it ought to have been put to her so as to give her an opportunity to comment on it. In particular, at paragraph 49 of her supplementary written submissions, she submitted:
The Applicant lost her student visa in 2003 as a result of the Department's error which resulted in her arbitrary detention in 2006. This resulted in the Applicant accumulating a large Commonwealth debt which prevented the Applicant from obtaining another student visa ; a skilled migration visa (a permanent visa) in 2007; and a regional sponsored migration visa (a permanent visa) in 2008 . Had the Department not erroneously cancelled the Applicant's student visa in 2003, the Applicant would have become a permanent resident in 2007 as a skilled independent migrant or 2008 as a regional sponsored migrant and an Australian citizen in 2008 or 2009.
[Footnotes omitted]
74 As was observed of s 57 of the Act in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 261 [20], certain of the requirements found in s 57(1) and (2) are similar to those arising under the general law. Under the general law and in respect of information sourced from other than the affected person, procedural fairness may dictate that a decision-maker bring to the attention of the affected person the critical information upon which a decision is likely to turn: Kioa v West (1985) 159 CLR 550 at 587.
75 The requirements found in s 57 in respect of "relevant information" as defined are materially engaged only if the Minister considers that the information "would be the reason, or part of the reason ... for refusing to grant a visa". One difficulty with Dr Ogawa's submission is that there is nothing to show that the Minister ever considered that anything in the immigration history would provide such a reason or part of such a reason for refusing Dr Ogawa's visa application. Given this, the requirements of s 57 were not engaged. Even under the general law those requirements would not have been engaged by the bare recitation of Dr Ogawa's immigration history.
76 It was always open to Dr Ogawa to highlight to the Minister by submission, prior to the making of his decision, the practical consequences for her of the initial, flawed decision to cancel her student visa. The factual premises upon which paragraph 49 of her supplementary written submissions (quoted above) are based were known to her at that time. Though the subject is mentioned in her Petition to the Governor-General, that she did not, in her submission to the Minister, do so to an extent which she might otherwise have done, had she been reminded of the detail of her immigration history by prior service of a summary of it on her, does not mean that s 57 was breached by a failure to provide her with an opportunity to comment upon that history, any more than it means that there would have been, were it applicable, a breach of a common law duty to afford procedural fairness by the extension of a prior opportunity to be heard. As it happens, she was afforded such an opportunity. What she made of it in terms of her immigration history was a matter for her.
77 The language of s 57 of the Act is analogous to that found in s 424A of the Act. As to the latter, it has been that the term "information" does not extend to "subjective appraisals, thought processes or determinations": SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at 1196 [18]. The same conclusion must follow by analogy in relation to s 57 of the Act. So a failure to disclose these to a visa applicant, prior to the making of a decision under s 501(1) of the Act, does not constitute a breach of s 57 and, with that, a jurisdictional error. That does not mean that the Minister's subsequent "subjective appraisals, thought processes or determinations", or lack thereof, having regard to his statement of reasons, may not be productive of separate jurisdictional error. As Dr Ogawa's oral submissions touching on her prior immigration history progressed, it emerged that her particular complaint was that, had the ramifications of that history after her offending conduct been taken into account, the Minister would necessarily have to have concluded that it was unreasonable to refuse her the visa for which she had applied. The merits of that submission are best considered in relation to her unreasonableness ground of challenge. As to ground 4, the conclusion must be that it is without merit.
78 Ground 5 - The decision is legally unreasonable.
79 As developed in Dr Ogawa's submissions, there were a number of separate bases upon which she submitted that the Minister's decision was unreasonable.
80 One basis of submission was that the Minister had failed to consider the legal consequence of making a refusal decision at a time when a petition to His Excellency the Governor-General for a pardon in respect of the offences which she had committed was pending. Another basis was that it was unreasonable, given that the petition was pending, to determine the visa application. Yet another basis was that, having regard to the various visas which she had been granted in the period of about 11 years which had elapsed between her original offending conduct and the date when the Minister made his decision and to the ability of the Minister under s 501 to refuse or cancel visas on character grounds, it was inconsistent and inexplicable and thus unreasonable for the Minister now to refuse to grant her a visa on character grounds.
81 As to the first basis and at a general level of abstraction, it was common ground that the Minister was obliged to consider the legal consequences of the making of a refusal decision. In this the parties were not mistaken: Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 at [46] (in relation to the refusal of a protection visa, but the same must follow in relation to the refusal of the visa sought by Dr Ogawa). The Minister expressly adverted (at paragraph 2 of his reasons) to the consequence, already described, visited by s 501F of the Act on Dr Ogawa by his refusal decision and, related to that, that she no longer held any valid visa. It is also patent from the Minister's reasons that he was well aware that a further consequence of his refusal decision would be Dr Ogawa's deportation. Dr Ogawa's contention was that the Minister was additionally required to consider the legal effect which her removal from Australia would have were she to be granted a pardon.
82 As an initial observation, a failure to consider the legal consequence of the refusal of a visa would be to commit the jurisdictional error of failing to take into account a relevant consideration. It is a failure to give "adequate weight to a relevant factor of great importance" which is better characterised as the jurisdictional error of unreasonableness: Peko-Wallsend, at 41. But that is not the case advanced by Dr Ogawa. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [72] it was observed that, "The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness." That observation offers some support for Dr Ogawa's characterisation of this basis of her ground 5 but, in the end, it is not necessary further to consider the subject of characterisation. That is because, quite properly, the Minister did not quibble with the way in which Dr Ogawa had characterised the asserted error but rather with whether it was ever relevant for the Minister to take the consideration asserted by her into account.
83 Further consideration of the first basis requires that s 501(10) of the Act be set out:
(10) For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:
(a) the conviction concerned has been quashed or otherwise nullified; or
(b) both:
(i) the person has been pardoned in relation to the conviction concerned; and
(ii) the effect of that pardon is that the person is taken never to have been convicted of the offence.
84 The text of s 501(10) of the Act makes explicit that it is not just the fact of the granting of a pardon but its legal effect which yields the result that a particular sentence is to be disregarded.
85 In identifying in s 501(10)(b) of the Act, a particular type of pardon, it seems to me that Parliament had in mind the type of pardon which s 85ZR of the Crimes Act 1914 (Cth) terms a "free and absolute pardon". Another term used for such a pardon is "free pardon". In Reg. v. Foster [1985] Q.B. 115, 130 Watkins LJ observed of such a pardon, "the effect of a free pardon is such as, in the words of the pardon itself, to remove from the subject of the pardon, 'all pains penalties and punishments whatsoever that from the said conviction may ensue,' but not to eliminate the conviction itself." A later judgment of a Queen's Bench Divisional Court, in which Watkins LJ delivered the judgement of the court, R v Secretary of State for the Home Department ex p. Bentley [1994] QB 349 (Bentley) contains an illuminating account of the history of the Royal Prerogative of mercy, which includes, but is not limited to, the power to grant such a pardon. Nor is the power limited in its exercise to cases where a person is morally and technically innocent. Pardons may take a more limited form and be conditional, as, for example, where a convicted person is relieved from the penalty imposed on condition that he or she undergo some lesser penalty. Further, the fact that the sentence imposed after conviction has been carried into effect or served in full does not mean that either a free or conditional pardon cannot be granted. As was observed in Bentley at 365, "The prerogative is a flexible power and its exercise can and should be adapted to meet the circumstances of the particular case." In Australia, that power is exercisable by the Governor-General in respect of federal offences and by a State Governor in respect of offences against the laws of the State concerned, in each instance as the local representative of Her Majesty the Queen.
86 That there is such a bifurcation provokes an interesting question which it is presently unnecessary to resolve. In respect of the offences against the Commonwealth Code, Dr Ogawa's petition is undoubtedly correctly directed to the Governor-General. The contempt conviction was in respect of an offence against a State Act. At first blush, that might suggest that the exercise of the prerogative in respect of that offence is one for the Queensland Governor but the District Court was, at all material times, exercising federal jurisdiction, because it was dealing with offences against the Commonwealth Code: 68(2), Judiciary Act. Thus the contempt was of a court exercising the judicial power of the Commonwealth. Though it is not necessary finally to resolve the question, that would suggest that all aspects of any exercise of the prerogative power in relation to Dr Ogawa are for the Governor-General if so advised.
87 The Minister's reasons evidence that he did advert both to the existence of a petition for a pardon and to the fact that the application had yet to be determined (paragraphs 8 and 10): At paragraph 10 of his reasons, the Minister started:
While I acknowledge that a Petition for a Pardon was made to the Governor-General of Australia in 2014, at present there is no evidence that … an appeal of Dr Ogawa's convictions [is] underway or that such an appeal, or a pardon, is likely.
88 In context, the Minister's reference in this paragraph to "such an appeal" appears to me to have been intended to be a reference by the Attorney with his subsequent reference to "likely" then to be regarded as a finding that there is no evidence that it is likely that a reference appeal would be made or that a pardon would be granted.
89 The Minister's reference both to an appeal and to a pardon is apt. As I explained in Martens v Commonwealth of Australia (2009) 174 FCR 114 and as was accepted by the majority of the Court of Appeal in the latter, consequential reference to that court, R v. Martens (No 2) [2011] 1 Qd R 575, s 68 of the Judiciary Act 1903 (Cth) has an ambulatory effect, operating by analogy to pick up and to apply, mutatis mutandis, to Commonwealth offences committed in Queensland s 672A of the Criminal Code (Qld). Such an operation was later described by the Full Court as at first blush "curious" : Nudd v Minister for Home Affairs (2011) 122 ALD 529 at [10] but it was unnecessary for the Full Court further to consider the issue as the appeal proceeded on the assumption that s 68 of the Judiciary Act did indeed have such an operation. As in that case, that s 68 of the Judiciary Act operated so as to pick up s 672A of the Criminal Code was assumed by the parties in this case. It is not therefore necessary to give the point any detailed consideration. I do no more than observe that such an operation seems to me a necessary consequence of the reasoning of Dixon J in Williams v The King [No. 2] (1934) 50 CLR 551, as taken up by the majority in Peel v The Queen (1971) 125 CLR 447, a view shared by Chesterman JA (and, albeit with some hesitation, by Muir JA) in R v Martens (No 2). In R v Martens (No 2), at [84] - [85], Chesterman JA (Muir JA agreeing) characterised the hearing of a reference under s 672A of the Criminal Code as an appeal. No issue was made by the parties in the present case as to the correctness of that characterisation. It serves to explain why the Minister's reference to an appeal in his reasons was apt.
90 Were there to be an Attorney-General's reference under s 672A of the Criminal Code, as applied by s 68 of the Judiciary Act, one result of the resultant appeal might be that the convictions concerned were quashed (as, for example, occurred in R v Martens (No 2)). In that event, s 501(10)(a) of the Act would be applicable. That outcome would, for reasons already given, be in contrast to the outcome were a free pardon granted.
91 The Minister's reference to the lodgement of a petition in 2014 is factually correct. A petition was first lodged during the tenure in office of the previous Governor-General and renewed afresh and in like terms during the present Vice-Regal incumbency. The Minister's reference to the present Governor-General in his statement of reasons attests to his awareness of this position.
92 Each petition is primarily directed to the subject of Dr Ogawa's conviction in respect of the Commonwealth Code offences but a reference to the Court of Appeal in respect of her conviction and sentence in respect of both those offences and the contempt of court offence is sought. The submissions made in the current petition in relation to Dr Ogawa's conviction in respect of the Commonwealth Code offences, which take up those made in the earlier petition, are detailed and forensically sophisticated. Neither petition is but a bare request for a pardon or a reference appeal. As to clemency, each contains a detailed submission, proceeding from the initial flawed departmental decision in 2003 to cancel Dr Ogawa's student visa and a victory on merits review in 2004 rendered pyrrhic by a failure on the part of the then Migration Review Tribunal to hand down its decision prior to the expiry of the visa the decision in respect of which was the subject of the review. As to the seeking of a reference appeal, each petition contains a scholarly rationale for why it is submitted that the Commonwealth Code offence convictions should be quashed. The petitions themselves therefore contain evidence by reference to which a likelihood that they might receive favourable consideration, if only to the extent of persuading the Commonwealth Attorney-General that there ought to be a reference, might be measured. Neither petition is hardly frivolous.
93 However this may be, the precise point presently at issue concerns an alleged failure to consider, as a further legal consequence of the refusal of the visa sought, its effect on Dr Ogawa's petition and, were a pardon to be granted or a reference appeal to succeed in the quashing of convictions, on her ability to obtain a visa enabling her to return to Australia.
94 As to this point, the Minister's submissions should be accepted. Neither the refusal decision itself nor subsequent, consequential deportation would preclude the Commonwealth Attorney-General from referring the current petition to the Queensland Court of Appeal, nor on such a reference appeal preclude that court from quashing her convictions, nor preclude His Excellency the Governor-General, on the advice of the Federal Executive Council, from granting Dr Ogawa a pardon. Further and as the Minister also submitted, in the event that the Commonwealth Code convictions were quashed or a pardon having the effect described in s 510(10)(b) granted, the effect of s 48 of the Act and reg 2.12 of the Migration Regulations 1994 (Cth) is that Dr Ogawa could again apply for a partner visa of the kind which the Minister has refused.
95 For these reasons, there is no substance in the first basis upon which Dr Ogawa cast her "unreasonableness" submission.
96 One of the submissions made to the Minister by Dr Ogawa before he made his refusal decision was, "in light of s 501(10) [of the Act], it is premature to decide that the Visa Applicant does not pass the character test prior to the final disposition of the petition submitted by the Visa Applicant": submission of 8 April 2017, paragraph 6 (Court Book, p 169).
97 I accept the Minister's submission that it is implicit in paragraph 10 (already quoted) of his reasons that he considered the possibility of deferring the making of his decision because of the pendency of the petition and determined not to do so for the reasons set out in that paragraph.
98 The difficulty about those reasons is that they do not engage at all with the contents of the current petition in circumstances where that petition itself, for reasons already given, contains evidence by reference to which likelihood of success might be measured. Under the Administrative Arrangements, the Minister had no portfolio responsibility for the consideration of the petition. Administration of s 68 of the Judiciary Act was consigned to the Attorney-General. The Minister was explicitly informed by his department in the submission made to him (paragraph 49, Court Book, p 8) that there had been neither internal nor external consultation in relation to the visa application. Inferentially, neither the Attorney-General nor any officer of the latter's department was consulted by an officer of the Minister's department. The Minister's reasons do not evidence that he did this personally before making his decision. There is no other evidence that there was any such consultation either by the Minister personally or an officer of his department prior to the making of his refusal decision.
99 The Minister's reasons do not disclose any analysis by him of the submissions made in the petition which would warrant any conclusion as to the likelihood that, either a reference would be made at all, or by reference appeal outcome or pardon, at least the Commonwealth Code offences might have to be disregarded. No such analysis was offered to him by his department. Yet Dr Ogawa's submission of 8 April 2017 could only reasonably be read as a submission that the merits of her petition were such that the Minister should defer the making of his decision. As I have observed, the petition was hardly frivolous. Of course, as the Minister submitted, he was obliged to determine the visa application by reference to prevailing circumstances. But Dr Ogawa's request was that this should be done at a time when one of those prevailing circumstances was the known disposition of her petition. In the particular circumstances, it was unreasonable for the Minister to have proceeded to refuse her deferral request and to make his decision without any basis for his assessment of its likelihood of persuading the Attorney-General to make a reference. Even if, in light of the particular content of the petition's submissions, only the Commonwealth Code offences were quashed or the subject of a relevant pardon, the effect of s 501(10) of the Act would be that the sentence in respect of those offences would have to be disregarded. In that circumstance, the remaining contempt sentence could not, by definition, yield satisfaction that Dr Ogawa had a "substantial criminal record".
100 The Minister's submission that there was not, at the time of the decision, either a relevant pardon or any quashed conviction such that any sentence for any offence had to be disregarded is correct but it begs the question as to whether to make the decision in October 2017 or, as requested, defer it was unreasonable. The refusal was, in the circumstances of an unreasonable decline of a deferral request, a decision which was unreasonable in outcome, which is one of the two ways in which the jurisdictional error of unreasonableness can be found: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [6]-[9] per Allsop CJ, [6l(c)] per Griffiths J and [91]-[92] per Wigney J. In outcome and because it entailed an unreasonable refusal of a deferral request, the Minister's decision was "unreasonable or plainly unjust": Minister for Immigration and Citizenship v Li at [76].
101 For this reason also, the Minister's decision should be quashed.
102 As developed in her submissions, the further basis upon which Dr Ogawa submitted that the Minister's decision was unreasonable was that it was inconsistent with an earlier pattern of granting her visas which might have been refused on character grounds. That was not, in terms, a submission put by her to the Minister prior to the making of his decision. Materially, her submission was put at a more general level of abstraction, which was that, in the eight years which had passed following her 2009 convictions, her behaviour was unblemished. That behaviour occurred in Australia and occurred when she was subject to various visas but Dr Ogawa did not by submission put to the Minister that some or all of these could have been refused on character grounds. Neither did Dr Ogawa, in terms, put to the Minister that a decision made personally by a predecessor in office in 2007 might, even though she had not at that stage been convicted of any offence, have been refused on character grounds on the basis of administrative findings as to her conduct in 2006.
103 In Peko-Wallsend, at 45, Mason J observed:
It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.
104 The presence of the immigration history evidences that the Minister had at least constructive knowledge of the various visas granted to Dr Ogawa. Further, as Dr Ogawa correctly submitted, and subject to the qualification that s 65 is "satisfaction" based, whatever might be particularly made a criterion for consideration in relation to a particular visa by the Migration Regulations, under "s 65(1)(a)(iii) of the Migration Act 1958, the character test under s 501 is a requirement for all visas". But the analysis or lack thereof in the department's submission to the Minister and in his reasons in respect of the immigration history of the consistency or otherwise of a refusal on character grounds of the partner visa for which Dr Ogawa had applied was reactive to the submissions which she had made to the Minister.
105 In light of the conclusions which I have already reached as to the presence of jurisdictional error, the Minister's decision will have to be quashed in any event. It will then fall to the Minister either to make a fresh decision personally or to consign that task to a delegate. In either event, given the particular submission made by Dr Ogawa in this proceeding, the question of consistency with earlier character and risk assessments will be at large in relation to the making of a fresh decision in a way in which it was not overtly when the Minister made his decision in October 2017. In these circumstances, it seems to me preferable that the subject first (and perhaps last) be considered administratively rather than that there be some judicial pronouncement at this stage on the subject of any unreasonableness on this basis. That is not to say that I do not accept that unreasonableness may not be found in inconsistency in administrative decision-making, only that I consider it inappropriate in the present circumstances to make a judicial pronouncement in respect of what is, for the reasons given, an academic question.
Conclusion
106 For these reasons, the Minister's decision must be quashed. It necessary follows that there is no basis for Dr Ogawa's continued immigration detention.
107 The Minister's reasons also disclose he formed views as to the possibility of Dr Ogawa's reoffending, what those effects might be and countervailing considerations arising from Dr Ogawa's post-conviction conduct and testaments as to her character. As I observed at the outset, subject to legality, the making of value judgements under s 501(1) as to whether or not to refuse to grant a visa for which a person has applied is for the Minister, not the judiciary. In that role Parliament has given the Minister a large "zone of discretion". Within that zone, it is nothing to the point that in outcome the Minister's decision might to some appear harsh. Submissions as to miscarriage of justice aside, there is certainly an eloquent case for a conclusion of harshness advanced in Dr Ogawa's petition but in the context of a visa application decision, whether to reach such a conclusion is one for Ministerial value judgement, not that of the Court. In the context of whether or not to grant a pardon, the conclusion is one for the value judgement of the Governor-General on the advice of the Federal Executive Council not, again, the Court.
108 In his reasons (at paragraph 28) and in respect of Dr Ogawa's offending conduct against the Commonwealth Code, the Minister has expressed agreement with the sentiment voiced by the sentencing judge, which was that the conduct was "unforgivable". Viewed as a colourful way of emphasising the seriousness of offending conduct, the adoption of that description is unremarkable. Evaluation of the seriousness of offending conduct for the purpose of the exercise of his discretion under s 501(1) is, subject to questions of legality, one for the Minister alone. However, the adoption of such a description is, with respect, unfortunate in relation to a person who has an unresolved petition for a pardon. That is because, as regard to the history of the prerogative in Bentley discloses, the granting of a pardon can evidence forgiveness and may be granted even when there is no acceptance that a person is technically or morally innocent. The formulation of advice in relation to the granting of a petition is for the Attorney-General, not for the Minister.
109 To quash the Minister's decision on the basis of the jurisdictional errors identified above says nothing about what ought to be concluded on the merits of either the visa application or the petition.
110 There will be orders accordingly.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.