The Issues Paper when addressing the "duration and nature of the person's ties to Australia" states:
42. His NSW DCS Conviction, Sentences and Appeals report dated 20 February 2012 (Attachment E) shows he has spent more than four and a half years in custody during his residence in Australia.
20 It is presumed that, after having read the Issues Paper, the Minister thereafter went on to make his decision. It is further presumed that the Minister also read the Statement of Reasons that had been prepared for his consideration.
21 The Statement of Reasons as signed on 17 December 2012 sets forth his reasons why Mr Ruatita did not pass the "character test" and why it was in the "national interest" that his visa should be cancelled. When addressing the "national interest" the Minister's reasons provide in part as follows:
9. I consider crimes involving violence to be serious offences. In Mr RUATITA's criminal history there are many offences in the nature of breaching or contravening domestic violence orders. He has engaged in this type of conduct for many years, with frequent contraventions of apprehended violence orders designed to deter him from committing future acts of violence or harassment. I note the Court's remarks in 2011 that he is a "chronic abuser of the protection which is afforded to a complainant … to protect her from acts of violence."
The reasons then address the exercise of the discretion conferred by s 501A(2). When considering the need to protect the Australian community, the reasons state in part:
13. Mr RUATITA has been convicted of many offences involving or related to domestic violence, which have resulted in many custodial sentences of up to 12 months imprisonment. I consider that violence of any sort is of serious concern and that violence against women is of additional concern in light of the value that the Australian community placed on respect for women and children.
…
15. While Mr RUATITA's offences have not been exceptionally serious individually, the cumulative effect of frequent re-offending and his overall record of offending has imposed a considerable burden on the Australian community.
It is the following part of the reasons which considers "Ties to Australia" that picks up the earlier erroneous statement in the Issues Paper as to the time in which Mr Ruatita was in custody, namely:
Ties to Australia
19. Mr RUATITA has been a resident of Australia for just over 19 years, after arriving from New Zealand as an adult of 30 years on 4 October 1992. He has spent more than four and a half years of that time in criminal custody.
20. Mr RUATITA's offending in Australia commenced in November 1995, just over three years after his arrival, and has continued frequently since then.
21. Mr RUATITA has strong ties to Australia in his two sons who reside in Australia with their mother. I also noted Mr RUATITA has been gainfully employed since he arrived in 1992.
The shift in language from the terms of the Issues Paper - which refers to "custody" - to the terms in which the Statements of Reasons is expressed - "in criminal custody" - received little (if any) attention during the hearing. The focus of argument was directed to the period of time Mr Ruatita had been in custody.
22 There is no exposition in either the Issues Paper or the Statement of Reasons as to how that period of time was calculated or what was intended to be conveyed by the phrases "in custody" or "in criminal custody".
23 Nor is it readily apparent how that period of time was in fact calculated. That period of time does not readily emerge from the table setting forth Mr Ruatita's "criminal history" - indeed, that table would seem to suggest a far longer period. Attachment E, as referred to in the Issues Paper, provides no further enlightenment. And there is no evidence to suggest that the Minister himself gave any independent thought to whether that period was either correct or should be questioned.
24 During the course of submissions, a variety of calculations were explored. On behalf of Mr Ruatita it was contended that he had been "incarcerated for 1,164 days which is 3 years 69 days (or about 3.2 years)".
25 It was common ground that the number of days for which Mr Ruatita had been sentenced to serve, whether by way of imprisonment or periodic detention, was 1,576 days.
26 But there the agreement between the parties ended. On behalf of Mr Ruatita it was submitted that the application of both the Periodic Detention of Prisoners Act 1981 (NSW) and the later Crimes (Administration of Sentences) Act 1999 (NSW) was that a further period of 412 days was to be deducted from the agreed 1,576 days. That was how the calculation of 1,164 days was determined. Counsel on behalf of the Minister accepted that the application of those State statutory provisions had the consequence that there had to be a deduction of a "significant number" of days from the total of 1,576 - but Counsel was unable to confirm that that number was 412 or some other number.
27 On either the approach advocated on behalf of Mr Ruatita or on the approach of Counsel for the Minister, the period of time stated in the Statement of Reasons - i.e., "more than four and a half years … in criminal custody" - was erroneous. Even on the Minister's approach, a "significant" number of days had to be deducted from the agreed 1,576 days.
28 The question to be resolved was the consequence of this erroneous statement.
29 On behalf of the Minister it was submitted that the statement in paragraph [19] of the Statement of Reasons was neither:
misleading; nor
a matter of critical importance to the reasoning of the Minister.
Neither submission is accepted. It is concluded that the erroneous statement as to the number of days Mr Ruatita had been in custody had both the potential to mislead the Minister when making his decision and that it deprived Mr Ruatita of the "possibility" of a favourable exercise of Ministerial discretion.
30 The erroneous statement, it is respectfully considered, vitiates the decision of the Minister. The erroneous statement exposes jurisdictional error such that the Minister's decision should be quashed and set aside.
31 An error in an Issues Paper presented to the Minister for consideration when exercising the power conferred by s 501A was considered by the Full Court in Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340, 141 FCR 346. The Minister had there cancelled a visa on the ground that the visa holder did not pass the character test and that cancellation was in the national interest. The visa holder had been convicted of a number of offences in 1991 and, whilst serving his term of imprisonment, was further convicted of offences relating to the possession and use of marijuana. The Issues Paper stated that it was open to the Minister to find that Mr Lu had "a medium to high risk of recidivism". The Issues Paper did not identify the drug which was the subject of his convictions and erroneously stated (in paragraph [22]) the term of imprisonment imposed. Black CJ and Sackville J concluded that the Minister's decision should be set aside. Sundberg J dissented and would have upheld the decision of the primary judge, Weinberg J.
32 After referring to the erroneous statement, there found in paragraph [22] of the Issues Paper, Black CJ reasoned in part as follows:
[28] Whatever the effect para 23 of the Issues Paper may have had on the conclusion that it was open to the Minister to find that the appellant had a medium to high risk of recidivism, there is no doubting the potential effect of the misstatements in para 22 in contributing to that conclusion. To a reader of the section of the Issues Paper about likelihood of the criminal conduct being repeated, the negative effect of the misstated facts might well be heightened by the description of the offences of "possession of implements for administration" and "self-administration" without any reference to the fact that the drug in question was cannabis. In the absence of any statement that the drug was cannabis, a nine month term of imprisonment, perhaps cumulative and in any event lengthy relative to what was described as "the main sentence", together with the impression that might be created by the elements of some of the offences ("implements of administration" and "self administration") might lead a reader to suppose that the drug or drugs were so-called "hard drugs", of a type commonly associated with recidivism and other very serious long-term problems for the individual and for the community.
[29] Had the sentences for the drug offences been correctly stated and put before the Minister there is a rational possibility that a more favourable assessment of the risk of recidivism would have been made in the Issues Paper or, in any event, by the Minister. There would have been a rational possibility of the risk of recidivism being seen as low and of the case being seen as one in which the Minister's discretion could be exercised favourably to the appellant in all the circumstances. I stress "possibility".
The then Chief Justice concluded:
[32] In these circumstances, despite the strength of the considerations that support the Minister's decision, the force of which must be acknowledged, I have concluded that the erroneous statement in the Issues Paper deprived the appellant of the possibility of a successful outcome. Had the Minister been given the correct information about a matter he was bound to take into account, he may have come to a different conclusion and may have refrained from cancelling the appellant's visa.
33 Sackville J identified the ambit of the argument to be resolved by reference to the following submission of Counsel for the respondent:
[38] [Counsel] also accepted that errors in describing a person's criminal record may result in a decision under s 501A of the Migration Act being affected by jurisdictional error and thus not protected by the so-called privative clause (s 474): cf Craig v South Australia (1995) 184 CLR 163, at 179, per curiam; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, at 351 [82], per McHugh, Gummow and Hayne JJ; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, at 506 [76], per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93, at 107 [45], per curiam. However, [Counsel] submitted that the mere fact that the Issues Paper provided to the Minister misdescribed the appellant's criminal record was not of itself sufficient to constitute a jurisdictional error.
His Honour went on to conclude:
[55] … It must be remembered that s 501A(2) confers a power on the Minister not merely to cancel a visa, but to set aside a decision of the Administrative Appeals Tribunal not to cancel the visa. It is unlikely that Parliament contemplated that the Minister could exercise a power having such drastic consequences for a permanent Australian resident on the basis of incorrect information as to the offences committed by the visa holder and the sentences imposed for those offences. It follows that if the Minister fails to take into account a visa holder's correct criminal record because the Department provides incorrect information, ordinarily the Minister will have failed to act in accordance with the requirements of s 501A(2) and therefore will have acted in excess of jurisdiction.
[56] As I have suggested, it may be that a minor error relating to the convictions or sentences imposed on the visa holder will not in substance result in the Minister failing, in a relevant sense, to take account of that person's criminal record. But I do not think that the errors in this case were consistent with the Minister's statutory obligation to take the appellant's correct criminal record into account.
34 A like conclusion should be reached in the present proceeding.
35 It is not correct, as submitted on behalf of the Minister, that the statement as to the time which Mr Ruatita had served in custody was not "critical" to the reasoning process of the Minister. Paragraph [42] of the Issues Paper, it may be accepted, appears in that part of the submission to the Minister which expresses a conclusion favourable to Mr Ruatita. That part of the submission expresses a view that Mr Ruatita has "strong links to the Australian community" and is addressing (in part) a comparison between the length of time he has been in Australia and the length of time he has served in custody.
36 But to confine the significance of paragraph [42] to the issue of his "links to the Australian Community", it is respectfully concluded, is to impermissibly attempt to parse and analyse a submission and to divorce the potential relevance of observations made in one part of the submission from the entirety. Very much at the forefront of the competing issues to be resolved by the Minister was an assessment as to whether someone with the criminal history of Mr Ruatita should be allowed to remain in Australia. That assessment properly involved an assessment as to the nature of the offences for which Mr Ruatita had been convicted, including those offences being crimes of violence and crimes of violence against his partner, and the period of imprisonment imposed and served. Indeed, the text of the Issues Paper set forth in paragraph [30] a table as to those offences and the sentences imposed.
37 The factually inaccurate statement as to the time that Mr Ruatita had served in custody, it is thus concluded, had the consequence that the Minister had failed to take into account Mr Ruatita's correct criminal record and thereby "failed to act in accordance with the requirements of s 501A(2) and therefore … acted in excess of jurisdiction": Lu [2004] FCAFC 340 at [55] per Sackville J.
38 In the present proceeding it should be noted that Counsel for the Minister correctly accepted that the statement as to the time served in custody was erroneous. It was not sought to be argued that the Minister had in fact performed his own process of calculation and simply made a factual error in that process. A process of calculation undertaken on behalf of the Minister and undertaken after the decision had been made and undertaken solely for the purposes of the present proceeding maintained that a "period in custody" could be calculated as 4 years 116 days. The period of time set forth in paragraph [42] of the Issues Paper and repeated in paragraph [19] of the Statement of Reasons was, accordingly, accepted as factually wrong. No reliance was thus sought to be placed upon those authorities in which it has been concluded that jurisdictional error may be exposed if there is "no evidence" to support a critical finding. Such authorities arise, of course, in both decision-making under the Migration Act (e.g., SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19] - [20], 77 ALD 402 at 407 - 408 per Mansfield, Selway and Bennett JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 at [5] - [13] per Wilcox, French and Finkelstein JJ; SZNKV v Minister for Immigration and Citizenship [2010] FCA 56 at [38], 118 ALD 232 at 243 per Kenny J) and other statutory contexts (e.g., Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 at [16], 241 CLR 390 at 396 per French CJ; Soliman v University of Technology, Sydney [2012] FCAFC 146 at [23], 296 ALR 32 at 38 per Marshall, North and Flick JJ). Nor was it necessary to consider other authorities which have considered the consequences of a Minister being misled by information provided (e.g., GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309).
39 The first Ground of the Fourth Amended Originating Application is thus made out. Jurisdictional error is exposed by the Minister failing to act in accordance with the requirements of s 501A(2).