Conclusion
40 An appeal to this Court from a decision of a Federal Magistrate is not an appeal in the strict sense. It is an appeal by way of rehearing: Western Australia v Ward (2002) 191 ALR 1. See also Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. This Court is obliged "to give the judgment which in its opinion ought to have been given in the first instance": Fox v Percy (2003) 197 ALR 201.
41 The principles that govern the resolution of this appeal are not in doubt. Once it is clear that there was a breach of natural justice, the applicant is entitled to have the decision under review set aside unless the Court is confident that the breach did not affect the making of the decision.
42 In Aala, the various members of the High Court who addressed this issue all made it clear that the threshold for refusing relief in such a case is a substantial one.
43 Gleeson CJ approached the matter on the basis that the RRT, having inadvertently misled the applicant as to the material before it, deprived him of an opportunity to answer, by evidence and argument, adverse inferences that might be drawn. Had he been given an opportunity to correct the misunderstanding, "a different view might have been taken as to his credibility". His Honour concluded that, in accordance with the principles enunciated in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, no one could be "sure" that the RRT's ultimate conclusion would have been the same.
44 Gaudron and Gummow JJ at 116-117 referred to a different passage in Stead, at 147, saying that it was sufficient that "the denial of natural justice deprived [the prosecutor] of the possibility of a successful outcome".
45 McHugh J at 122 accepted that not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach, or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Importantly, as the Federal Magistrate noted, his Honour said:
"Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because '[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome'." (footnote omitted)
46 Kirby J at 130-131 also referred to Stead. His Honour drew from that case the following statement of principle:
"Once the applicable breach is proved, the victim of the breach is ordinarily entitled to relief. It is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness 'could have made no difference' to the result, that relief will be withheld. This Court has emphasised that such an outcome will be a rarity. It will be 'no easy task' to convince a court to adopt it." (footnotes omitted)
47 His Honour said that the reason for the stringent principle of the common law was plain. Departure from the requirements of a fair hearing involves a derogation from the assumptions inherent in the grant to the Tribunal by the Parliament of the decision-making power. Those who enjoy such power must conform to the conditions of the grant. If they do not, they have not exercised the power in accordance with law but instead in accordance with some "personal predilection".
48 It may be thought that there are strong parallels between the approach taken by the High Court in Aala, and that adopted in relation to the exercise of the proviso in criminal appeals. See generally Wilde v The Queen (1988) 164 CLR 365.
49 The Federal Magistrate concluded that there was nothing that the applicant could usefully have done to respond to the CORE letter, even if its contents had been made known to her. There was no dispute about the fact that the incidents set out in that letter had all occurred. They related to her first term of imprisonment. Plainly, she had been difficult to manage during that term, and clearly the respondent was entitled to have regard to that fact when considering whether she was likely to re-offend.
50 It was of course theoretically open to the Federal Magistrate to approach the matter in this way. However, as indicated earlier, there are several aspects of his Honour's reasoning that seem to me to be doubtful. The CORE letter implied that not only had the applicant been "difficult to manage" during her first term of imprisonment, but that she continued to be troublesome right up to, and including, the date on which that letter was written.
51 Equally troubling is the fact that two of the incidents attributed to the applicant are described as having been "finalised" when, in truth, that was not the case. The allegations of "assault prisoner" and "assault officer" were, at the time the letter was written, just that - allegations that were unproved, and not yet even the subject of criminal charges. Charges were in fact laid in relation to the August 2001 incident in July 2002, approximately two months after the CORE letter was written. However, those charges had not been determined by the time the respondent decided to cancel the applicant's visa.
52 It is true that the decision record issued by the respondent on 19 December 2002 contained a reference at par [24] to various events that had occurred in August 2001, and to charges that were laid in July 2002. It noted that a hearing date for the charges had been set for April 2003. However, in my opinion, it cannot safely be assumed that the respondent would have appreciated that the charges to which reference was made in par [24] of the decision record were the August 2001 matters that had been described as "finalised" in the CORE letter, even assuming that that was so. It appears that no charges were laid in relation to the "assault prisoner" allegation, relating to 26 May 2001, and it is unclear what, if anything, was meant by the statement in the CORE letter that this matter had been "finalised". It must be remembered that the CORE letter plainly implied that the applicant had been found guilty of both these allegations.
53 If the onus rested upon the applicant to demonstrate that the failure to make the CORE letter available to her had affected the manner in which she had approached the issue of her possible re-offending, and might possibly have influenced the respondent's decision, I would probably agree with the Federal Magistrate's conclusion that the breach was of no significance in the context of this case. However, the High Court has made it clear, in both Stead and Aala, that once a breach of natural justice has been shown to have occurred, the onus rests upon the tribunal, or decision-maker, responsible for the breach, to demonstrate that the breach did not affect the decision.
54 If the Minister's failure to provide the applicant with the adverse material could reasonably have prevented her from correcting what might have been a misapprehension on his part, and thereby caused him to arrive at a different conclusion, the authorities suggest that the decision must be set aside.
55 Had the applicant been provided with the CORE letter, or told of its contents, she could have addressed at least some of the adverse inferences that might otherwise have been drawn from it. For example, she could have pointed out that the "assault prisoner" and "assault officer" allegations had not been "finalised". She could have provided material in support of her claim that she was innocent of any wrongdoing in relation to those matters.
56 Perhaps of equal importance, had the applicant been aware of the implication that she was still proving to be "difficult to manage", as at 10 May 2002, she could have addressed that issue directly. The fact that she alluded to her behaviour in prison during the course of the 28 August 2002 interview does not mean that she suffered no prejudice by being kept in ignorance of what the CORE letter contained. She could, theoretically at least, have produced evidence or other material to show that she had been a model prisoner during her second term of imprisonment. It is impossible to tell from the Minister's reasons for decision what weight he accorded to any of the individual matters that he took into account in deciding to cancel the applicant's visa. One cannot conclude, therefore, that providing the applicant with the relevant material could not have led to the Minister being persuaded that his concerns regarding her risk of recidivism were misplaced.
57 It was submitted on behalf of the respondent that the applicant had dealt with these issues as well as could be expected by calling in aid, for example, the positive report provided by Caraniche in November 2002. I am unable to accept that submission. However positive the report may have been, the possibility that stronger evidence of rehabilitation may have been provided, had the CORE letter been shown to the applicant, cannot be excluded.
58 In John v Rees [1970] Ch 345, Megarry J said at 402, in terms that I would respectfully adopt:
"[a]s everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."
59 It is for these reasons that I have concluded that this appeal must be allowed. It was agreed by the parties that in the event that I came to that conclusion, the appropriate order would simply be to set aside the decision of the respondent to cancel the applicant's visa. There will be an order to that effect. There is no reason why costs should not follow the event. Accordingly, the respondent must pay the applicant's costs of the proceeding before the Federal Magistrates Court, as well as the costs of this appeal.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg J.