What happened
Colin David Picard, a New Zealand citizen who had lived in Australia for decades, was convicted in the Supreme Court of Tasmania on 31 July 2013 of trafficking in methylamphetamine ("Ice"). He received a three-year sentence of imprisonment. While serving that sentence, a delegate of the Minister for Immigration and Border Protection cancelled his Class TY Subclass 444 Special Category (Temporary) visa on 7 January 2015 pursuant to the mandatory cancellation power in s 501(3A) of the Migration Act 1958 (Cth). The delegate was satisfied that Mr Picard did not pass the character test because he had a substantial criminal record (s 501(6)(a) and s 501(7)(c)) and was serving a full-time sentence of imprisonment.
The Department wrote to Mr Picard on 8 January 2015 notifying him of the cancellation and inviting him to make representations under s 501CA(4) seeking revocation. The letter expressly directed his attention to Ministerial Direction No 65, which identifies primary considerations including protection of the Australian community, the nature and seriousness of the conduct, and the risk of re-offending. Mr Picard responded on 27 January 2015 with written submissions and character references, asserting that he did not constitute an unacceptable risk to the community.
On 3 March 2015 the Department wrote again, enclosing additional material including a Prison Conduct Report dated 7 January 2015 which noted that Mr Picard was the former State President of the Rebels motorcycle club and had maintained contact through calls and visits. A further letter of 20 March 2015 specifically invited comment on "any past and current association, and your intended future association, with the motorcycle club and its members". Mr Picard replied on 31 March 2015. He acknowledged 27 years' membership, ten years as State President in Launceston, his resignation upon being charged, and his current status as a "retired member". He stated that he could "still associate with my mates in the club", could "ride around with them and with my mates in other states", and assured the Minister that the club did not require members to sell drugs.
An issues paper was prepared for the Minister which recorded Mr Picard's admissions, noted that the Rebels are classified by the Australian Crime Commission as an outlaw motorcycle gang (OMCG) "with links to organised crime in Australia", and observed that his continued association "may cause you to hold some reservations about his progress to rehabilitation". The Minister personally considered the paper and all attachments. On 18 June 2015 he decided not to revoke the cancellation. His statement of reasons placed significant weight on the objective seriousness of the trafficking offence (conducted on a commercial scale to fund retirement), Mr Picard's lengthy and senior membership of the Rebels, his ongoing financial pressures, and the potential harm to the community from further methylamphetamine trafficking. At [43] the Minister noted Mr Picard's retired status and intention to continue riding with Rebels associates but recorded only "some reservations" about rehabilitation. Overall the Minister assessed the risk of re-offending as low ([44]) but concluded that Mr Picard represented an unacceptable risk of harm to the Australian community and that community protection outweighed the best interests of his grandchildren and other countervailing considerations ([52]).
Mr Picard commenced judicial review proceedings in the Federal Court. The sole ground ultimately pressed was that he had been denied procedural fairness because the Department had not expressly drawn to his attention either the Australian Crime Commission's opinion concerning the Rebels' links to organised crime or the proposition that his "mates" with whom he intended to ride had such links. Tracey J dismissed the application, holding that the ACC view was notorious and well publicised, that Mr Picard had been given a sufficient opportunity to address the relevance of his associations, and that no practical injustice had arisen.
Why the court decided this way
Tracey J's reasoning is grounded in the High Court's emphasis on "practical injustice" (Lam at 14, cited at [37]) and the context-specific content of procedural fairness (WZARH at [30], cited at [31]). The judge accepted that the Minister was bound to accord procedural fairness but held that the obligation had been satisfied.
First, the statutory scheme itself shapes the content of fairness. The mandatory cancellation under s 501(3A) turns on two objectively ascertainable facts; s 501CA(3) requires provision of "relevant information" limited to material that was the reason or part of the reason for the original cancellation and that is specifically about the person (s 501CA(2)). The judge noted at [40] that this obligation does not, on its face, extend to information relevant only to the revocation stage. Once the invitation to make representations is given, the visa holder is expected to anticipate and address the broad considerations in Direction 65, including community protection and risk of re-offending.
Second, Mr Picard had in fact been put on express notice. The 20 March 2015 letter specifically invited comment on the Prison Conduct Report and on "any intended future association" with the club and its members. His 31 March response demonstrated that he understood the potential significance of that association for the Minister's assessment of rehabilitation and recidivism risk. He sought to allay those concerns by explaining his retired status and denying any club involvement in drug trafficking. The judge held at [44] that Mr Picard "well understood... that any future association with club members might be thought, by the Minister, to carry the risk of future offending on his part".
Third, the ACC opinion was "notorious and well publicised in the public domain" and therefore "entirely incontrovertible" ([47]). Relying on the Alphaone principle (cited at [34]), the judge held that a decision-maker is not required to expose every possible adverse inference or provisional view. The issues paper's reference to the ACC classification was general information about a class of persons (members of the Rebels) rather than new, person-specific adverse material that had to be put back to Mr Picard.
Fourth, the matters complained of did not weigh heavily in the Minister's decision. The decisive considerations were the scale of the drug trafficking, Mr Picard's financial motivations, his long criminal-history-free but club-heavy residence, and the potential community harm from further offending ([42], [50]-[52]). The "some reservations" expressed at [43] did not alter the ultimate low-risk finding at [44]. In these circumstances there was no practical injustice.
The judgment repeatedly returns to the factual context: Mr Picard had supplied the critical information himself, had been invited to expand upon it, and had done so in full knowledge of the stakes. To require the Minister to put back every possible inference would convert procedural fairness into an unrealistic requirement to expose mental processes (Palme at 219, cited at [34]).
Before and after state of the law
Prior to Picard the law on procedural fairness in visa cancellation and revocation decisions was already settled in broad terms. SZBEL (2006) 228 CLR 152 had clarified that applicants must be given an opportunity to ascertain the real issues and comment on adverse material not obviously open on the known material. Alphaone (1994) 49 FCR 576 supplied the often-quoted formulation that a decision-maker must identify critical issues not apparent from the statute or the nature of the decision and must allow rebuttal of adverse material from other sources, but need not expose provisional views. Lam had anchored the entire inquiry in the avoidance of practical injustice rather than abstract rules. WZARH (decided only weeks before Picard) reinforced that the content of fairness is determined by the legal framework within which the decision is made.
What Picard added was a concrete application of those principles to the then-new mandatory cancellation and revocation regime introduced by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). The judgment is one of the earliest Federal Court authorities to grapple with the interaction between the narrow "relevant information" obligation in s 501CA(3) and the broader requirements of common-law procedural fairness once representations are invited. It confirmed that the Minister is not required to treat every piece of general background material (such as the ACC's long-standing assessment of OMCGs) as fresh adverse material that must be put to the applicant a second time. It also illustrated that a specific invitation to comment on a Prison Conduct Report that flags club membership can satisfy the obligation to allow comment on the rehabilitation implications of ongoing associations.
Subsequent amendments to the Migration Act and new Directions (Direction 79, then Direction 90, now Direction 99) have not altered the core procedural fairness principles articulated in Picard. The decision remains authoritative for the proposition that notorious facts about outlaw motorcycle gangs need not be laboured where the applicant has already been invited to address his or her own association with such a group. Courts continue to cite Picard for the proposition that the revocation process is not a dialogue in which every possible inference must be put back to the former visa holder (see, for example, later authorities applying the same "practical injustice" lens to ministerial decisions under s 501CA(4)).
Key passages with plain-English translation
Paragraph [37]: "The purpose served by the imposition, on decision-makers, of an obligation to accord procedural fairness to those who may be affected by their decisions is the avoidance of 'practical injustice': see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 (Gleeson CJ)."
Plain English: The whole point of natural justice rules is to stop real unfairness happening in practice, not to create technical hurdles. If the person had a fair chance to say what mattered, the court will not overturn the decision just because a particular document was not copied to them.
Paragraph [40]: "The obligation thus relates to information bearing on the decision to cancel, not information on which the Minister might rely in deciding whether or not to revoke the cancellation decision. This is a somewhat strange provision..."
Plain English: The Act only forces the Department to give you the information that led to the original cancellation. It does not expressly require them to give you everything that might influence the later decision whether to let you stay. The judge thinks this drafting is odd, but the court must apply the words Parliament used.
Paragraph [43] of the Minister's reasons (extracted and discussed at [26] and [46]): "I also note Mr PICARD's stated intentions of continuing to ride with his Rebels associates in Tasmania and other states. While I acknowledge that there is no information to indicate that Mr PICARD committed his drug offences due to his membership of the Rebels Motor Cycle Club, I nevertheless have some reservations about ongoing progress to rehabilitation, in circumstances of his stated intention to continue to ride with an outlaw motor cycle gang."
Plain English: The Minister is saying, "I accept you have stepped down, but the fact you still want to ride with the same crowd makes me worry you haven't fully moved on from that lifestyle." The judge treated this as a limited observation, not a decisive adverse finding that required a further round of submissions.
Paragraph [47]: "The Australian Crime Commission's views about the Rebels Motor Cycle Club are well known. The fact that the Commission holds such views is 'entirely incontrovertible.' Mr Picard himself told the Minister that he intended to continue riding with members of the Club. He did so well knowing that his response might have an impact on the Minister's assessment of the possibility of him reoffending... It was for the Minister to form a judgment about the risks (if any) of such associations..."
Plain English: Everyone knows the Rebels have a bad reputation according to the Crime Commission. Picard volunteered that he planned to keep hanging out with them. He cannot now complain that he was not warned that this might look bad. The Minister was entitled to weigh that information without sending it back for yet another comment.
What fact patterns trigger this precedent
Picard is routinely cited in cases where a former visa holder challenges a non-revocation decision on procedural fairness grounds and the alleged unfairness concerns general or notorious information about criminal organisations, risk factors, or country information. It is particularly engaged where:
- the applicant has been invited under s 501CA(3) and Direction 65 (or its successors) to address protection of the Australian community, risk of re-offending, and rehabilitation;
- the applicant has supplied information about past or intended future associations with outlaw motorcycle gangs, criminal networks, or other groups with known reputations;
- the Minister or delegate relies on the known character of that group rather than new, person-specific intelligence that has never been mentioned;
- the applicant complains that a particular adverse inference or piece of background material (ACC assessments, police intelligence summaries, or media reports) was not expressly put to him or her before the decision was made.
The precedent is triggered most strongly when the applicant has already made detailed submissions on the very topic (as Mr Picard did on 31 March 2015) and later claims he or she did not realise the Minister might draw an adverse inference from those submissions. It has less force where the material is both new and centrally decisive, or where the applicant can show that he or she could have supplied specific rebuttal evidence had the point been raised (contrast the hypothetical response Mr Picard said he could have given about the precise nature of "riding" with named individuals).
How later courts have treated it
Later courts have treated Picard as correctly stating the law. It has been followed in numerous single-judge decisions of the Federal Court and by the Full Court. For example, in Suleiman v Minister for Immigration and Border Protection [2018] FCAFC 52 the Full Court cited Picard with approval for the proposition that notorious facts about criminal associations need not be put where the applicant has already addressed the substance of the association. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, the Court applied Picard to hold that generalised country information on risk did not have to be put back to the applicant who had already made representations on risk.
The decision has been distinguished in cases where the Minister relied on fresh, person-specific intelligence that had never been disclosed at all (see Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216). It has not been overruled or criticised. In the decade since delivery, Picard has become a standard citation in ministerial non-revocation cases involving OMCG members. Judges continue to quote the passages at [37], [44] and [47] when emphasising the practical injustice test and the limits of any duty to expose mental processes. The High Court's subsequent decisions in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 and NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 have not disturbed the procedural fairness analysis in Picard; they address different issues.
Still-open questions
Several questions remain live after Picard. First, how far does the "notorious facts" exception extend? Would an updated, more specific intelligence assessment (for example, a recent ACC report naming particular chapters or individuals) still be treated as incontrovertible, or would it cross into material that must be disclosed? The judgment does not address that nuance.
Second, the judge noted at [40] that the drafting of s 501CA(2) is "somewhat strange" because it ties the disclosure obligation to the original cancellation rather than the revocation stage. Whether Parliament intended a broader disclosure obligation and whether future legislative amendment will clarify the point remains open. Current practice papers and s 501CA(3) letters now routinely enclose far more material than the strict statutory minimum, but the legal minimum has not changed.
Third, the interaction between Picard and the evolving content of Ministerial Directions (Direction 99 now contains more explicit paragraphs on criminal associations and rehabilitation) is not fully resolved. If a Direction expressly lists "association with organised crime groups" as a primary consideration, does that make the ACC view more obviously "apparent from the nature of the statute" (Alphaone) and therefore less likely to require separate disclosure? Picard suggests the answer is yes, but a future court may need to decide the point squarely.
Finally, the judgment leaves open what would constitute "practical injustice" in a case where the applicant can point to concrete additional evidence he or she would have supplied had the precise inference been drawn to their attention. Mr Picard suggested he could have given names and details of "riding" activities; the Court was not satisfied that this would have altered the outcome. In a future case with stronger evidence of materiality, the result might differ. Until the High Court revisits the content of fairness in the s 501CA(4) context, Picard remains the leading Federal Court statement of principle.
Gotchas
Most practitioners assume that once the Department sends an issues paper or briefing to the Minister they must, as a matter of course, send a copy to the applicant with an invitation to comment on every adverse paragraph. Picard shows this is wrong. The statutory obligation is narrower, and common-law fairness does not require the Minister to conduct a running commentary on every possible inference. Many lawyers still over-disclose, creating unnecessary work and sometimes inadvertently highlighting damaging material the applicant had not previously focused upon. The real forensic risk is failing to recognise when truly new, person-specific adverse material has emerged after the applicant's last submission; that is the point at which a further invitation to comment may become mandatory. Most people do not realise that the Minister's ultimate weighing of risk can include drawing inferences from the applicant's own words without giving the applicant a further chance to re-argue the same point. That is the hidden value of the Picard analysis for those who advise clients in the revocation space.