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[2015] FCA 1430
respondent. The application be dismissed. The applicant pay the respondent's costs of the application.
Colin Picard, a New Zealand citizen living in Australia for many years, went to prison for three years after being caught trafficking the drug ice. While he was inside, his visa was automatically cancelled because of his criminal record. He asked the Immigration Minister to cancel that cancellation and let him stay, pointing to his family ties, long residence, and promises to go straight. The Minister looked at everything, including Picard's 27 years in the Rebels motorcycle club (ten of them as Tasmania president), and decided the risk to the community from possible future drug offending was too high. Picard then went to the Federal Court saying the process was unfair because nobody had specifically told him that the Australian Crime Commission thinks the Rebels are linked to organised crime, or that his plan to keep riding with his club mates after release might look bad for his rehabilitation. Justice Tracey rejected this. He said everyone already knows the Rebels have a bad reputation, Picard had been asked directly about his club connections and future plans, and he had given detailed answers. The Minister did not have to spell out every possible inference before deciding. There was no practical unfairness, so the court dismissed the case and Picard must pay the Minister's costs.
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2,974 words · generated 24/04/2026
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.
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]).
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)).
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.
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 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).
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.
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.
REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the respondent Minister not to revoke a decision of his delegate to cancel Mr Colin Picard's Class TY Subclass 444 Special Category (Temporary) visa. The Minister's decision was made under s 501CA(4) of the Migration Act 1958 (Cth) ("the Act"). 2 The Minister's delegate had determined to cancel Mr Picard's visa under s 501(3A) of the Act. He did so because he was satisfied that Mr Picard did not pass the character test, prescribed under the Act, and because Mr Picard was serving a sentence of imprisonment, on a full time basis, for the offence of trafficking in a controlled substance. 3 On 31 July 2013 Mr Picard had been convicted by the Supreme Court of Tasmania of trafficking the drug "Ice". He had been sentenced to a three year term of imprisonment. 4 It was not disputed that Mr Picard did not pass the character test. 5 The issue for the Minister, under s 501CA(4)(b)(ii) of the Act, was whether he was satisfied that, notwithstanding Mr Picard's failure to pass the character test, other reasons existed which warranted the revocation of the delegate's decision to cancel the visa. 6 The Department prepared a bundle of documents which it considered contained information which was relevant to the Minister's decision. These documents were provided to Mr Picard. He was invited to comment on them and to make any submissions in support of his application to the Minister to revoke the cancellation decision. 7 Having considered all of the material submitted by his Department and submissions and supporting documents forwarded to him by Mr Picard, the Minister determined not to revoke the cancellation decision. He provided detailed reasons for so determining. In the course of those reasons he referred to Mr Picard's "lengthy membership of an outlaw motor cycle gang, and his status as State President for ten years [of that gang]." The "gang" concerned was identified by the Minister as the Rebels Motor Cycle Club. 8 Mr Picard's amended application sought to impugn the Minister's decision on two grounds. The first of those grounds was abandoned prior to the hearing. The only ground that was pressed was that Mr Picard had been denied procedural fairness by the Minister. He complained that it had not been put to him that it was the Australian Crime Commission's opinion that the Rebels Motor Cycle Club had "links to organised crime in Australia" or that a reason for the Minister refusing to revoke the delegate's decision was the possibility that the gang-member "mates" with whom Mr Picard proposed to ride upon his release from gaol had links to organised crime. 9 For the reasons which follow I have concluded that no denial of natural justice occurred.
THE LEGISLATION 10 Section 501(3A) of the Act provides that the Minister must cancel a visa if satisfied that the visa holder does not pass the character test and the person concerned is serving a sentence of imprisonment for an offence against a law of the Commonwealth or a State. A person does not pass the character test if he or she has a substantial criminal record: see s 501(6)(a). A person has such a record if he or she has been sentenced to a term of imprisonment of 12 months or more: see s 501(7)(c). 11 By s 501CA(3) the Minister is required, as soon as practicable after any decision is made under s 501(3A), to: "(a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision." 12 The term "relevant information" is defined in s 501CA(2) as follows: "For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member." 13 Section 501CA(4) provides that the Minister may revoke the cancellation decision if the visa holder makes representations in response to an invitation extended under s 501CA(3) and the Minister is satisfied either that the person passes the character test or "that there is another reason why the original decision should be revoked." 14 If the Minister revokes the original decision to cancel the visa, the original decision is taken not to have been made: see s 501CA(5).
VISA CANCELLATION AND APPLICATION FOR REVOCATION 15 On 7 January 2015 a delegate of the Minister cancelled Mr Picard's visa under s 501(3A) of the Act. Mr Picard was so advised by registered letter dated 8 January 2015. 16 The letter advised Mr Picard of his right to make representations pursuant to s 501CA(4). A copy of the section was provided to him. Mr Picard was advised that: "How to request revocation of the original decision to cancel your visa If you decide to request revocation you can write to us with the reasons why you think the original decision should be revoked using the attached Revocation Request Form. Direction 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction) identifies issues that are relevant to the revocation consideration. You should address each paragraph in PART C of the Direction that is relevant to your circumstances. A copy of the Direction is enclosed for your information. If the decision-maker is a delegate of the Minister, the delegate is bound by the Direction. If the Minister makes a revocation decision personally, he or she is not required to give consideration to the Direction, though it provides a broad indication of the types of issues that he or she may take into account in determining whether or not to revoke the original decision. You can provide any other information that you feel the decision-maker should take into account, including letters of support from your family, friends, employers or others." 17 Direction 65 was a Ministerial Direction given under s 499 of the Act. It identified a range of matters which, if relevant in a particular case, were to be brought into account in determining how the discretion, provided for in s 501CA(4), should be exercised. Delegates exercising the Minister's power under s 501CA(4) were required to comply with the Direction but it did not bind the Minister himself. 18 The Direction identified a number of primary considerations which were to be taken into account in dealing with applications made under s 501CA(4). They included the protection of the Australian community, the nature and seriousness of the criminal conduct engaged in by the visa holder and the risk to the Australian community should the visa holder commit further offences or engage in other serious misconduct. 19 Mr Picard responded to the invitation to apply for revocation of the cancellation decision. He did so in writing on 27 January 2015. He attached a number of character references. 20 In his written submissions he addressed the relevant issues identified in the Ministerial Direction. In doing so he submitted that he did "not constitute an unacceptable risk to the Australian community in terms of reoffending." 21 By letter dated 3 March 2015 the Department acknowledged receipt of Mr Picard's submissions. It advised him that it had obtained some additional information which was potentially relevant to his application. It identified a series of documents including a Prison Conduct Report from the Tasmanian Prison Service dated 7 January 2015. Copies of all these documents (including the Prison Conduct Report) were sent to Mr Picard under cover of the letter. He was "invited to comment on this information and any other matter you want the decision-maker to take into account." 22 Shortly afterwards the Department again wrote to Mr Picard. By letter dated 20 March 2015, Mr Picard was advised that: "In addition, I refer to the Prison Conduct Report from the Tasmania Prison Service, dated 7 January 2015, a copy of which was sent to you by letter dated 3 March 2015. Under a heading of Adverse Alerts, this report states: "Mr Picard is the former State President (Tasmania) of the Rebels motorcycle club and has maintained contact with the club through telephone calls and visits". The department invites your comment on this information and invites you to provide details of any past and current association, and your intended future association, with the motorcycle club and its members." 23 Mr Picard responded by way of written submissions dated 31 March 2015. He acknowledged that he had been a member of the Rebels Motor Cycle Club for 27 years. He had become State President of the club in Tasmania, holding that position for 10 years. He had stepped down from that position when he was charged with the trafficking offence. He had become "a retired member". As a result he didn't go to any meetings and he didn't "have any say in club business". He said that he didn't have "a lot" of friends outside the club and that he could "still associate with my mates in the club". He could "ride around with them and with my mates in other states." He said that the club "doesn't make any member sell drugs. Club money is not made that way. It is something members do themselves." 24 The Department then prepared an issues paper for the Minister. The paper contained the following paragraph: "It is open to you to find, as declared by Mr PICARD in his submissions dated 31 March 2015, that he has been a member of the Rebels Motor Cycle Club for 27 years and he held the post of State President, in Launceston, for 10 years before resigning from the position and becoming a retired member of the club in 2013. Mr PICARD has confirmed that he maintains an association with club members and states that he "can ride around with them and with my mates in other states" (Attachment T). The Rebels Motor Cycle Club is classified by the Australian Crime Commission as an outlaw motor cycle gang (OMCG), with links to organised crime in Australia. Whilst it is open for you to conclude that Mr PICARD is no longer an active member of the Rebels Motor Cycle Club, his continued association with club members may cause you to hold some reservations about his progress to rehabilitation, despite his stated commitment and his age." 25 Attachments to the paper included each submission which had been made by Mr Picard in relation to his application for revocation of the cancellation decision. 26 Having considered the issues paper the Minister determined, on 18 June 2015, not to revoke the cancellation decision. On the same day he published a statement of reasons for his decision. He said that, in making his decision, he had assessed all of the information contained in the paper and the attachments to it. He dealt with each of the reasons, advanced by Mr Picard, in support of his application. Under the heading 'Risk to the Australian community' the Minister said that: "42. Mr PICARD remains in criminal custody and I find that his current ability to refrain from re-offending has not been tested in the community. I also consider that his lengthy membership of an outlaw motor cycle gang, and his status as State President for ten years, casts doubt on his prospects for avoiding further criminal behaviour, notwithstanding his long, largely conviction free residence in Australia. Mr PICARD committed his offending to make money to fund his retirement. Although Mr PICARD's bankruptcy has discharged his debts, the sentencing judge's remarks confirm that he remains without significant assets and without the funds he planned on retiring with. Mr PICARD expressed his intention to resume part-time employment in Tasmania. However, he has since advised of his intention to relocate to Queensland, to be with his family members in Australia. While Mr PICARD has stated his intention and his commitment to lead a law-abiding lifestyle, I am concerned that the financial difficulties which motivated Mr PICARD's serious drug offending may arise in future. 43. I note and accept that Mr PICARD is a retired member of the Rebels Motor Cycle Club, an outlaw motor cycle gang with links to organised crime in Australia. 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. 44. Having regard to all the information before the department, I have formed the view that Mr PICARD poses a low risk of re-offending. That said, in light of the judge's comments regarding the scale of Mr PICARD's drug trafficking operation, I consider that further offending of a similar nature by Mr PICARD could result in great harm to the community in terms of the impact of illicit drugs, especially methylamphetamine, on both individual members of the community, and also the community at large." 27 The Minister then summarised his reasons for refusing to revoke the cancellation decision under the heading 'CONCLUSION'. He acknowledged that there were a number of factors which supported the revocation of the visa cancellation. He then continued: "50. On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the serious nature of the crime committed by Mr PICARD, that of Trafficking in a Controlled Substance. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. 51. Despite the low risk of re-offending posed by Mr PICARD, I cannot rule out the possibility of further offending by him. I consider that the Australian community could be exposed to great harm should Mr PICKARD (sic) re-offend in a similar fashion. 52. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr PICARD represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his grandchildren and other, minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds - employment, volunteer/charity and familial - to Australia, and the hardship Mr PICARD, his family and social networks will endure in the event the original decision is not revoked."
THE APPLICANT'S CASE 28 Mr Picard complained that he should have been, but was not, alerted by the Department to the possibility that two matters, to which the Minister had regard, might be taken into account to his detriment when his application was determined. The first of these matters was that the Rebels Motor Cycle Club had, according to the Australian Crime Commission, "links to organised crime in Australia". The Minister had been so advised in the issues paper which had been sent to him by the Department. 29 The other matter was "that the 'mates' with whom he intended to ride [upon his release from prison] had links to organised crime." This matter, he contended, also arose from the advice provided to the Minister in the issues paper. 30 The failure to put these matters directly to Mr Picard and to give him the opportunity of commenting on them before the Minister made his decision, he submitted, gave rise to a denial of natural justice. 31 There can be no doubt that the Minister, as an administrative decision-maker, was bound to accord procedural fairness to Mr Picard when dealing with Mr Picard's application under s 501CA(4) of the Act. The question for determination, as both parties acknowledged, was "what is required in order to ensure that the decision [was] made fairly in the circumstances having regard to the legal framework within which the decision [was] to be made": see Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [30] (Kiefel, Bell and Keane JJ). 32 Mr Picard contended that both matters had a material bearing on the Minister's decision not to revoke the cancellation of his (Mr Picard's) visa. 33 Mr Picard did not suggest any particular response which he might have been minded to make had he been advised that the Australian Crime Commission considered that the Rebels Motor Cycle Club had links to organised crime. He did, however, suggest that, had he been told that the "mates" with whom he had intended to ride had links to organised crime he would have been able to have provided the Minister with additional information relating to what was involved in "riding" with mates, the names of the "mates" with whom he proposed to associate and whether they had any links with organised crime. He further contended that, when he was asked to respond to the Prison Conduct Report, it was not obvious to him that anything in it relating to riding with his mates could have had any impact on the Minister's assessment of his prospects for rehabilitation and of not re-offending. 34 Mr Picard placed particular reliance on the statement of principle propounded by a Full Court of this Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2 that: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question." This statement has subsequently been endorsed by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 219. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 the High Court expressed agreement with the Full Court's additional observation (at 590-1) that: "It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material." 35 Mr Picard also referred to statements of principle to similar effect in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 119-120 and Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284 at 295-6 (Keely J). 36 Mr Picard submitted that the information which, he said, had not been provided to him constituted adverse conclusions which were not obviously open on the material made available to him and was material adverse to his interests. As a result the Minister was obliged to advise him of this material and to afford him the opportunity of commenting on it.
CONSIDERATION 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). 38 The guiding principle is one of fairness: see VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 566 (Allsop J, with whom Gyles and Conti JJ agreed on this point). Judgments about practical justice and fairness fall to be made in the circumstances of individual cases. As Weinberg J said in Applicants M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309 at [54]: "Whether or not there has been a denial of procedural fairness in any given case is largely dependent upon the particular facts of that case. Where the decision-maker has relied upon adverse information, without providing any opportunity to comment upon it, the question whether the decision is vitiated will depend upon a range of factors. These include the importance of the material to the ultimate decision, as well as the nature of that material. Some information is purely factual and entirely incontrovertible. There may simply be no answer to it. Other information may involve a combination of fact and opinion, and may be contentious. In relation to information of that kind, the denial of the opportunity to comment upon it may give rise to procedural unfairness. Moreover, some matters are so blindingly obvious as not to require any comment or submission. In such cases, the fact that there has been no opportunity to comment will be of little or no significance." 39 The content of the obligation in any given case is to be determined having regard to the statutory context in which the relevant decision falls to be made: see SZBEL at 161, 162. 40 Section 501(3A) of the Act requires the Minister to cancel a visa if he (or his delegate) is satisfied that the holder does not pass the character test and is serving a sentence of imprisonment. As a result the reasons for a cancellation decision can be (as they were in the present case) very shortly stated. There is no need for the decision-maker to have regard to any discretionary considerations. In this context s 501CA is an ameliorative provision: it requires the Minister to invite representations from the person whose visa has been cancelled about the revocation of the cancellation decision and confers on the Minister a discretion to revoke the cancellation. Under s 501CA(3) the Minister is required to provide a person whose visa has been cancelled under s 501(3A) with written notice of the cancellation decision and particulars of "the relevant information" relating to the making of that decision. Such "relevant information" is defined, in s 501CA(2), to be information which the Minister considers "would be the reason, or part of the reason for making the [cancellation] decision" and which "is specifically about the [holder of the visa] or another person and is not just about a class of persons of which the person or other person is a member." 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 given that the cancellation will have occurred because the Minister (or his delegate) will have been satisfied of two objectively ascertainable facts. It may be that the draftsman intended that the Minister should advise the visa holder about information on which he might be minded to rely in deciding to reject an application for revocation. If that was the intention it is not reflected in the language of s 501CA(2). The information must be person-specific rather than general information relating to a class of person of which the visa holder is a member. 41 The content of the obligation, in cases such as the present, will also be influenced by the provisions of Ministerial Direction No. 65, made under s 499 of the Act. The first invitation to Mr Picard to make an application and submissions to the Minister under s 501CA(4) expressly directed Mr Picard's attention to the contents of that directive. As already noted, the directive identified a series of broad considerations which the Minister could, but was not obliged to, take into account when reaching his decision. 42 It does not follow that, in all cases, the Minister will accord procedural fairness simply by complying with the requirements of s 501CA(3). Once the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made. Those representations will be made in the knowledge that the Minister is likely to be guided by some or all of the considerations referred to in Direction 65. The applicant will, therefore, be in a position to provide the Minister with information relating to those considerations, including information which might seek to anticipate and allay concerns which the Minister might harbour relating to the applicant's circumstances and conduct. If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant's case the Minister is bound to consider it. It will be a matter for the Minister to weigh such matters against other relevant considerations, including those mentioned in Direction 65. It will not, normally, be necessary for the Minister to afford a further opportunity to the applicant to deal with particular issues. If, however, the Minister becomes aware of information which is personal to the applicant and which might lead the Minister to disbelieve some critical information supplied by the applicant, it may be necessary for the Minister to expose that information to the applicant and give the applicant the opportunity of responding to it before making a decision. 43 The two matters which Mr Picard contends should have been, but were not, put to him were matters which, he said, had been drawn to the Minister's attention in the issues paper. In that paper the Minister was expressly advised that the Australian Crime Commission classified the Rebels Motor Cycle Club as an outlaw motorcycle gang with links to organised crime in Australia. What is less clear is whether reference to the second matter can be traced to the same source. There was no assertion in the issues paper that the other club members with whom Mr Picard intended to associate upon release from prison had links to organised crime save to the extent that that might be inferred from their membership of the club. This part of the advice to the Minister was followed by the observation that such continued association with club members might cause the Minister "to hold some reservations about [Mr Picard's] progress to rehabilitation …" It was not necessary for this comment to be drawn to Mr Picard's attention: see Palme at 219. The question, for present purposes, is whether there was any obligation, on the Minister, to advise Mr Picard of the Australian Crime Commission's assessment of the Rebels Motor Cycle Club. 44 In my view there was not. That assessment, as the Minister demonstrated, was notorious and well publicised in the public domain. Mr Picard's future association with other members of the club was but one of many matters which might touch on the broad issues of his rehabilitation and risk of recidivism. These issues had been drawn to his attention and his comments on them invited. His attention was also drawn, even more clearly, in the 20 March 2015 letter, to the Prison Conduct Report and he was asked to comment on a range of implications arising from it, including any "intended future association" between him, the club and its members. Mr Picard well understood, as is evident from his response on 31 March 2015, that any future association with club members might be thought, by the Minister, to carry the risk of future offending on his part. He sought to assure the Minister that any such ongoing association would not have any adverse effect on his future conduct. 45 The Minister took this and other information supplied by Mr Picard into account in reaching his decision. 46 As is plain from the Minister's reasons, the matters raised in the issues paper concerning the classification of the Rebels Motor Cycle Club and the link of members of the club to organised crime did not weigh heavily on the Minister's decision. As appears from paragraphs [42], [44] and [50] of his reasons, the considerations which weighed most heavily with him were Mr Picard's lengthy membership of the club, his status as its Tasmanian president for 10 years, the seriousness of his crime, the reasons he committed it, his ongoing need for funds and the risk that any further drug trafficking by Mr Picard could result in great harm to the community. On the other hand, the Minister, at [43], went no further than saying that he had "some reservations about [Mr Picard's] ongoing progress to rehabilitation, in circumstances of his stated intention to continue to ride with an outlaw motor cycle gang". At [44] he assessed Mr Picard's risk of reoffending to be "low". 47 In these circumstances it cannot, in my view, be said, in any practical sense, that Mr Picard was denied procedural fairness by the Minister. 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 and the consequences for the community should any such reoffending occur. It was for the Minister to form a judgment about the risks (if any) of such associations when deciding how to exercise his discretion under s 501CA(4) of the Act. This he did. He was not obliged to expose his assessment to Mr Picard before reaching his decision. His assessment did not, in the event, weigh heavily against Mr Picard's application. 48 No denial of procedural fairness occurred.
DISPOSITION 49 The application must be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.
Picard
Minister for Immigration and Border Protection
(1994) 49 FCR 576
(2003) 214 CLR 1
(2003) 216 CLR 212
(1991) 31 FCR 100
(2006) 228 CLR 152
(1986) 70 ALR 284
The application be dismissed. The applicant pay the respondent's costs of the application.