Puohotaua v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2024-07-15|Before: Derrington J

THE COURT ORDERS THAT:

The application be dismissed.
The applicant pay the respondents' costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SARAH C DERRINGTON J:

INTRODUCTION

This application raises one issue for determination - whether the Administrative Appeals Tribunal denied the applicant, Mr Tea Anaru Puohotaua, procedural fairness by failing to warn him of his right to invoke the privilege against self-incrimination during its review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the cancellation of Mr Puohotaua's Class TY Subclass 444 Special Category (Temporary) visa. It is common ground that the Tribunal did not warn Mr Puohotaua about his right to invoke the privilege against self-incrimination at any stage during the relevant hearing.
In its written Reasons for decision dated 24 July 2024, the Tribunal recorded that Mr Puohotaua is a 25-year old citizen of New Zealand who moved permanently to Australia in 2012 to live with his father (Reasons at [2]). On 1 September 2023, following his sentencing to multiple periods of imprisonment for 12 months or more for a range of offences, Mr Puohotaua's visa was mandatorily cancelled per s 501(3A) of the Migration Act 1958 (Cth).

The alleged jurisdictional error

Although it is beyond doubt that the privilege against self-incrimination is a fundamental common law right (see Sorby v the Commonwealth of Australia [1983] HCA 10; 152 CLR 281 at 294 (Gibbs CJ), 309 (Mason, Wilson and Dawson JJ) and 311 (Murphy J); Reid v Howard [1995] HCA 40; 184 CLR 1 at 11-12 (Toohey, Gaudron, McHugh and Gummow JJ); and Meneses v Directed Electronics OE Pty Ltd [2019] FCAFC 190; 273 FCR 638 at [85]-[87]), the relevant inquiry is whether the alleged breach of procedural fairness entitles Mr Puohotaua to the relief he seeks in the circumstances of the hearing before the Tribunal.
The privilege against self-incrimination is recognised in statute, most particularly in ss 62(3) and 62(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (now repealed, but in force at the time of the hearing). Importantly, s 371(2)(c) of the Migration Act provided that it is an offence for a witness to fail to answer a question of the Tribunal for the purposes of a review under Pt 5 of the Migration Act. Section 371(3), however, provided an exception to this offence where "answering the question might tend to incriminate the person".
That raises the first question: whether answering the questions would expose Mr Puohotaua to a danger of prosecution. The relevant test was explained by the High Court in Deputy Commissioner of Taxation v Shi [2021] HCA 22; 273 CLR 335 at [34], per Gordon J (Kiefel CJ, Gageler and Gleeson JJ agreeing): In assessing whether there are reasonable grounds for the objection, the court must assess whether there is a "real and appreciable risk" of prosecution if the relevant information is disclosed. The gist of the privilege is that disclosure of the information "would tend to expose the claimant to the apprehended consequence". The "reasonable grounds" inquiry requires the court to assess, having regard to the circumstances of the case and the nature of the information which the relevant person is required to disclose, whether there are reasonable grounds to apprehend danger to them from being compelled to disclose the information. This requires consideration of whether information may tend to prove the commission of an offence, as well as the likelihood, or risk, of steps being taken to prosecute that offence. There must be some material upon which the court can be satisfied of these matters. (Emphasis added. Footnotes omitted.)
Whilst it might be accepted generally that a Tribunal should inform an unrepresented litigant of his or her right to claim the privilege against self-incrimination if it appears that a question asked of a person may give rise to a legitimate claim to that privilege (Promposa v Minister for Immigration, Citizenship, Migrant Services and Multi-cultural Affairs [2020] FCA 1480 at [37] per Allsop CJ; SZHMY v Minister for Immigration and Citizenship [2007] FCAFC 64; 159 FCR 1 at [77] per Lander J), a failure to do so does not necessarily lead to a finding of jurisdictional error.
That leads to the second question: was the failure material? As the High Court has recently reiterated, a breach of procedural fairness does not give rise to jurisdictional error unless it is established that the breach was material, the onus being on the applicant to satisfy the Court, on the balance of probabilities, that the alleged error in fact occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [9], [13]. The High Court explained that the question then becomes "whether the decision that was in fact made could, not would, 'realistically' have been different had there been no error" (at [14]). The Court said, at [16]: In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant established that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been difference had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

The alleged assaults

Mr Puohotaua impugns the questioning of him by the Tribunal in relation to two alleged assaults. The first line of questioning related to a complaint of domestic violence made against him on 17 July 2019 which was recorded in a "Solicitors Office Report". The second line of questioning related to, relevantly, an alleged assault on 1 March 2022 whilst he was on remand, which arose out of the Queensland Corrective Services incident reports (QCS Reports) that were in evidence.
In the course of the hearing, the Tribunal told Mr Puohotaua that it was "going to ask [him] about [his] offending now". The Tribunal asked Mr Puohotaua first about conduct relating to an incident on 3 July 2019, for which no further police action was taken. It then asked about conduct relating to an incident on 17 July 2019.
The Tribunal put the following summary to Mr Puohotaua: TRIBUNAL On 17 of July, so that would be about two weeks later, you and her were at home and she said that she had numerous appointments through the morning. You got angry that you were going to be alone for five hours. You said she was shady, and you didn't know where she really was, and she said she'd approved the appointments. You turned and threw a spatula, which hit her knee. She took most of her things and went to leave. The police thought that there was no reason that you would come into contact once the property had been collected and divided, so there was no need for a domestic violence protection order. She said that you'd been in a relationship for the last year and had lived together for that time. Do you remember any of that?---I don't remember that first one with the - Chris was there. But I do the second one.
Mr Puohotaua submitted that the question asked by the Tribunal led to admissions of common assault, threats of violence, and actual violence (the throwing of the spatula). It is not clear that any such admissions were in fact made. At most, Mr Puohotaua has admitted to having some recollection of the circumstances that comprised the incident on 17 July 2019.
Following that exchange, the Tribunal recited that the victim had told police that "since March, which was three months previous, and their return from holiday in New Zealand, [he] had been more aggressive" and that "once [he'd] returned to Australia, [he'd] been accusing her of cheating and [he'd] been checking her phone". The Tribunal asked Mr Puohotaua if he remembered "any of that stuff?", to which he replied, "Yes. Yes, I do."
The Tribunal then asked: TRIBUNAL So what's going on? You've been with her for a while. You go to New Zealand, and suddenly there's domestic violence?---Yes. So that happened in back in New Zealand. Yes?---And then when I come back, we weren't together, I had no contact with - yes, when I was back in New Zealand, I had to complete a - I did a Man Up course back there as well Right?---That was a (indistinct) course, I think. Okay?---It's a bit longer than the one that I'm doing currently. Yes?---And I completed that, and I come back over here, and we did start a relationship again, and I found out when I was in New Zealand that she was seeing someone else, and things were just (audio malfunction). I fully - I was quite aggressive in - towards her because of Was it jealousy?---Yes. Definitely jealousy.
Again, the only admission made by Mr Puohotaua in that exchange is to domestic violence in New Zealand, for which he was required to undertake the Man Up behavioural course. Beyond that, he admits to being aggressive towards his then partner. There is no specificity around that admission. It is not an admission of the commission of any offence.
On the material before the Tribunal, it was tolerably clear that no further action was going to be taken against Mr Puohotaua. The Report had concluded by noting that the aggrieved persons had stated the relationship was over and therefore, "the need for a domestic violence protection order is not required or justified".
Further, following a subsequent incident involving the same aggrieved person that occurred on 2 September 2019, a Protection Order was made by consent, without admissions, against Mr Puohotaua in the Magistrates Court of Queensland on 9 October 2019. The Tribunal asked Mr Puohotaua about that order and whether he was still with the aggrieved person after July. He responded, "I think it just got - I can't fully remember, but I don't know if it - I had been - it had been dealt within the court, or like, if that order had been varied or something like that …".
The Tribunal then moved on to ask him about one of the domestic violence offences for which he had been convicted in the Supreme Court of Queensland in May 2021.
The Protection Order made in 2019 continued in force up to and including 9 October 2024, by which time Mr Puohotaua was serving his sentence for, inter alia, domestic violence offences committed against a different complainant in 2021. In such circumstances, it is difficult to conclude that there was any likelihood, or risk, of any steps being taken to prosecute Mr Puohotaua for his conduct in July 2019, even if his answers to the Tribunal's questions had amounted to admissions of offending. There was no material before the Tribunal to suggest that any such steps were likely. Indeed, the evidence was to the contrary. Not only did the Report state that no further steps were warranted in July 2019, but when it became apparent that there was a need for further action, a Protection Order was made. Moreover, given that Mr Puohotaua has been subsequently punished for domestic violence offences, and that the person aggrieved by the conduct in 2019 has not made any further complaint, it seems most unlikely that a retrospective prosecution would be likely.
Mr Puohotaua was also questioned about alleged assaults that occurred on 1 March, 14 June and 4 August 2022. Ultimately, only the questioning about 1 March remained contentious. The Tribunal asked: TRIBUNAL Okay. There's a report from prison dated 1 March 2022---?---Yes. ---that you were fighting with another prisoner and you were told to stop and you stopped. Do you remember that?---Yes. Yes, I do remember. What was that about?---It was really something that - just sort of like just a disagreement sort of a thing. Like, (indistinct) - I guess, in jail, like, it can go from - like, so I was fresh in jail. I didn't know what was going on, and, yes, so there was just a disagreement between myself and the other person involved, and, yes, it went from just being, like, a heated argument to - turned into an altercation.
It must be observed that there was nothing in that question that required Mr Puohotaua to disclose anything that may have incriminated him.
In cross-examination about the prison altercations, the Minister's solicitor said, "I should probably say you do have a right not to self-incriminate". Mr Puohotaua responded: Well, it's not incriminating myself. Like we obviously - it's in the documents where its says that we had a fight and then when we got told to stop we got told to stop, and so that's what I done. I shouldn't have said a real fight. We had a fight, and then the other one was a play fight.
The Minister's solicitor continued with questions, eventually eliciting from Mr Puohotaua his acceptance that while he was in prison, he "did assault somebody".
As the Tribunal had alluded to in its initial questioning on this topic, the QCS Reports in relation to all three incidents in March 2022 were in evidence. They all stated that the incidents were "closed", with the report with respect to the incident on 1 March 2022 bearing the notation: "The incident has been referred to and returned from [Corrective Services Investigation Unit (CSIU)] for closure with recommendation for internal management". It appeared likely that Mr Puohotaua was dealt with for a breach of discipline in relation to the incident which arose on 1 March 2022. Had there been any desire on the part of the authorities to prosecute Mr Puohotaua in relation to the incident on 1 March 2022, it can be comfortably inferred that those steps would have been taken in 2022. The QCS Report in relation to the incident does not suggest that, at the time, Mr Puohotaua denied his involvement in the fight. An admission before the Tribunal that he assaulted someone in prison cannot realistically be said to be an admission of an offence different from what was observable to the reporting officer and investigated by the CSIU.
It cannot be said that there is any likelihood, or risk, of any steps being taken to prosecute Mr Puohotaua in respect of his conduct on 1 March 2022 on the basis of anything he has said before the Tribunal.

The alleged drug use

Mr Puohotaua complains that the Tribunal questioned him about his personal drug use and involvement in drug trafficking, without limiting the questions to those offences for which he had been charged, convicted and sentenced. He gave as examples the following lines of questions: TRIBUNAL [In relation to a domestic violence incident in June 2021] Were you affected by drugs at that time?---Yes. Which drugs?---Well, yes, just cocaine and --- What about the first one in May [2021]? Were you affected by drugs when you were driving around?---Cocaine as well. Apart from what you were doing to your partner, did you think that it was a bad idea to drive around when you're coked up?---Like, in that point in time, where my headspace was at, I probably wasn't even thinking about what was right and wrong in that moment. … TRIBUNAL I forgot to ask you about your drug trafficking. Tell me about that. How did you get involved in with that?---So I got involved in that due to that addiction that I had. So I started (audio malfunction) to sort of - not to sort of - to feed my habit.
It must be recalled that Mr Puohotaua had been convicted of offences of drug trafficking, supplying Schedule 1 dangerous drugs, and possession of Schedule 1 dangerous drugs committed in 2021 and 2022.
In cross-examination, the Minister's solicitor questioned Mr Puohotaua about being suspected of possessing dangerous drugs whilst in detention. The Minister's solicitor gave a warning about self-incrimination. Mr Puohotaua nevertheless answered the question, adamant that he was not in possession of any drugs whilst in the deportation centre. The Tribunal accepted his denial (Reasons at [38]).
The Tribunal questioned Mr Puohotaua about his history of drug use. Mr Puohotaua submitted that this line of questioning went beyond anything that was already on his criminal record. In the course of this line of questioning, Mr Puohotaua said that he started smoking marijuana when he was 15 or 16 years of age, he was introduced to ecstasy and cocaine "as [he] got older and partying become like a thing", and there was a time when he used cocaine every day after work. The Minister did not dispute that each of these substances constitute "dangerous drugs" within the meaning of the Drugs Misuse Act 1986 (Qld) (s 4) but submitted that it is possession, not use, which is prohibited under that Act (s 9(1)). Although it necessarily follows that one must be in possession of a certain quantity of drug in order to use it, it does not follow from Mr Puohotaua's answers that he has admitted to the possession of any quantity of drug, for personal use, that would incriminate him. In any event, it could not put Mr Puohotaua at any greater risk of prosecution than the admissions he had already made about his drug use, including in his personal statement in support of the revocation of the cancellation decision and at earlier points in his evidence to the Tribunal, which admissions were unsolicited.
There are no reasonable grounds to apprehend that Mr Puohotaua's admissions as to his personal drug use prior to the sentencing for his convictions in 2023 would place him at risk of being prosecuted.
Assuming, contrary to these findings, that Mr Puohotaua was entitled to assert the privilege, it is necessary to consider whether the failure to warn was material to the Tribunal's decision.

Was any failure to warn of the privilege material?

Mr Puohotaua pointed specifically to the findings bolded below in the Tribunal's conclusion in relation to Protection of the Australian Community (Reasons at [56]) as demonstrating that it had made findings along the way to its conclusion on the basis of his answers to questions he was not required to answer: I believe that the Applicant has mentally turned a corner, and he is doing well in custody. However, he does not have access to an intimate partner in custody, so he is not in the sort of situation that is high risk for him. His domestic violence behaviour was quite entrenched, including the incident in 2016 when he was not affected by drugs, the aggression towards Ms D in 2019, and the attacks on Ms T in 2021. He was also very quick to help his cousin beat up a stranger. Abstaining from this sort of conduct in future requires a big, permanent change in attitude, patterns of thinking and patterns of behaviour. I am not persuaded by the evidence before me that the Applicant definitely has, or will, achieve this. That means, there remains a risk that he would re-offend. (Emphasis added.)
Mr Puohotaua submitted further that the Tribunal's conclusion in relation to the Expectations of the Australian Community (Reasons at [64]) was necessarily informed by his answers to questions about the alleged assaults and the alleged drug use: The Applicant repeatedly offended in Australia, including violent offences, and circulating a dangerous drug in the Australian community. He has committed acts of family violence. He has showed lack of regard for the laws, court orders and safety of members of the community in which he wishes to remain.
The Minister submitted, first, that the evidence before the Court does not suggest that Mr Puohotaua would have availed himself of the privilege had the Tribunal explained it to him. That was said to be for two reasons. The first being, that on the couple of occasions when a warning was given, Mr Puohotaua proceeded to answer the questions put to him. Whilst there is some truth to that submission, the reality is that what warnings were given were wholly inadequate and made no attempt to explain to Mr Puohotaua the nature or effect of the privilege. It is noteworthy too that the warnings came only from the Minister's solicitor. The Tribunal did not step in and explain the privilege to Mr Puohotaua. That is what is required of a Tribunal: SZHWY at [77] per Lander J; Bainbridge v Minister for Immigration for Citizenship and Multicultural Affairs [2024] FCA 1080 at [65] per McDonald J.
The second reason postulated by Counsel for the Minister was that, as the Tribunal noted (Reasons at [51]), Mr Puohotaua had been "refreshingly honest in his evidence". Indeed, it may have worked against him to claim the privilege before the Tribunal. Of course, such an inference would tend to render the privilege itself inutile. I am not prepared to speculate as to Mr Puohotaua's likely state of mind and consequent response had he been properly warned of his entitlement to claim the privilege.
There is more substance to the Minister's second submission, being that even if it be assumed that Mr Puohotaua would have refused to answer the questions, the absence of his answers could not have produced a different result because his admissions, so characterised, added nothing to the material already before the Tribunal.
Mr Puohotaua submitted that the following specific findings made by the Tribunal in the course of the Reasons should lead to a finding that they were material to the ultimate adverse conclusion. As to the alleged assaults: [20] In 2019, the Applicant was in a relationship with a lady, "Ms D". During a trip back to New Zealand, there was a domestic violence incident. The Applicant was arrested and made to do an anger management course. The relationship broke up, but when he returned to Australia, it resumed. The Applicant became insecure and jealous, and his aggression increased. Ms D ended up reporting him to the police and ending the relationship. No action was taken at the time, but a few months later a Domestic Violence Order was made by consent without admissions. The Applicant knew, at the time, that Ms D had reported him to the police and broken up with him because of his aggression. He knew he had a problem, and his father told him to wake up to himself, but he did not seek help because he did not know where to go. (Emphasis added.) … [33] When the Applicant was initially on remand, he was involved in a fight. There is a report that he procured a prisoner to assault another prisoner, but he denied it and there is no evidence that the allegation was proven, so I disregard it. (Emphasis added.) … [39] In terms of the nature and seriousness of the Applicant's offending or other conduct, crimes of violence are deemed to be very serious, as are acts of family violence. The fact that there were multiple episodes of violence adds to the seriousness, as does the actual violence involved, which was kicking and punching to the head, strangulation, severe hair pulling, and confining a person against her will, to name a few examples. (Emphasis added.)
As to the alleged drug use: [19] From around 2017, the Applicant used ecstasy and cocaine recreationally and his use increased in mid-2017. He committed two offences of public nuisance/disorderly behaviour in September 2017, for which he was fined. In 2019, he was caught in possession of a dangerous drug. (Emphasis added.) … [21] The Applicant was in another relationship, which he said did not involve any violence, and it ended in 2021. After that, he went back to his drug-using friends, and his drug use increased. He was employed steadily in manual labour since leaving school. He sometimes used marijuana at work. When his cocaine use increased, he was using it after work each day, and during the day when he was not working (Emphasis added.) … [32] The Applicant was affected by cocaine both times he attacked Ms T and when he attacked the other victim. He started dealing in cocaine to pay for his drug addiction. (Emphasis added.) … [44] The Applicant's drug use contributed to some of his offending and other serious conduct. That includes the driving I have referred to, the violence and the drug trafficking, although he was sober when he contravened a Domestic Violence Order and broke a lead-light glass panel. (Emphasis added.)
The Tribunal's conclusion at [56] as set out above cannot be impugned simply by the reference to Mr Puohotaua's aggression towards Ms D, and the explanation he gave for it as recorded in [20]. As, I have already explained, admitting to aggression is not an admission of having committed an offence, still less is admitting to jealousy. There was ample evidence before the Tribunal on which to base its conclusion. Similarly, there was ample evidence before the Tribunal by which it could reach have reached the conclusion in [64] absent any of Mr Puohotaua's answers to the questions related to the Report of the incident on 17 July 2019, the QCS Report of the 1 March 2022 incident, or his personal use of drugs. This included:
- the National Criminal Check Report recording a conviction for domestic violence in 2016 and his three convictions for domestic violence against Ms T in 2021; a conviction for possession of a dangerous drug in 2022; a conviction for supplying dangerous drug in 2021; a conviction for drug trafficking between 2021 and 2022;
- the Report of the incident on 17 July 2019 recording a statement by Ms D of his aggression towards her;
- the sentencing remarks of Ryan J of the Supreme Court of Queensland on 8 August 2023 which record, inter alia: a conviction for breach of a protection order in May 2016; the commission of serious offences of domestic violence in May and June 2021; the commission of the offence of robbery in January 2022 with his co-offender cousin, where he "joined in, kicking and punching the complainant in the head and neck"; and observations that "[his] offending is serious, varied, persistent", "[he] started using cannabis and ecstasy at age 15", "[he]started using cocaine in 2017, what [he] called recreationally first, and then in increasing amounts from 2017", and "there has been no dispute that [he] [was] trafficking at street level in a not insignificant way in cocaine";
- a pre-sentence psychologist's report, dated 3 July 2023, which records, inter alia: "[t]he offences are diverse and seem to present a rather troubling increase in violence"; "Mr Puohotaua started using marijuana and ecstasy in 2015, to fit in with his mates … [h]e started using cocaine recreationally from around 2017, and worse when strain appeared in his relationship in mid-2021"; and
- his Personal Circumstances Form dated 17 April 2024, in which he explains he was addicted to drugs at the time of his offending.
In light of the evidence before the Tribunal, absent Mr Puohotaua's answers to the questions which he has impugned, there is not a realistic possibility that the Tribunal could have reached a different decision if it had warned Mr Puohotaua about his right to invoke the privilege against self-incrimination.

Disposition

For the reasons I have given, the application must be dismissed. There is no reason why the usual costs order should not follow. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington.

Migration Act 1958(Cth)ss 371(2)(c), 371(3), 501(3A), Pt

Drugs Misuse Act 1986(Qld)ss 4, 9(1)

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