Stowers v Minister for Immigration and Border Protection

Federal Court of Australia|2018-04-11|Before: Farrell J

The application is dismissed.
The applicant must pay the respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

FARRELL J: 1 Mr Stowers is a citizen of New Zealand who was born in 1986. He came to Australia in 2005 and was granted a Class TY Subclass 444 Special Category (Temporary) visa. His visa was cancelled on 23 December 2016 by a delegate of the Minister for Immigration and Border Protection under s 501(3A) of the Migration Act 1958 (Cth) (cancellation decision). On 9 August 2017, the Assistant Minister for Immigration and Border Protection, the Honourable Alex Hawke MP (Minister), decided not to revoke the cancellation decision under s 501CA(4) of the Migration Act. 2 This is an application for judicial review of the Minister's decision not to revoke the cancellation decision. These are my reasons for dismissing the application with costs.

Grounds 7 The amended application filed on 27 November 2017 relied on two grounds. The first is not now pressed having regard to the decision of the High Court in Falzon v Minister for Immigration and Border Protection (2018) 92 ALJR 201; HCA 2. 8 Accordingly, the sole ground of this application is that the Minister denied Mr Stowers procedural fairness. The particulars of this ground are as follows: (1) On 30 May 2017, the Minister sent a letter to Mr Stowers informing him that the Minister had information which may be taken into account when making his decision whether to revoke the cancellation decision. That information included a National Police Certificate dated 19 December 2016. (2) The Minister failed to put Mr Stowers on notice of the potential adverse effect of the National Police Certificate. (3) At [44] of the decision record, the Minister relied expressly on "convictions for breaches of judicial orders and non-custodial dispositions" in causing him to "pause in accepting unquestioningly that Mr Stowers will not reoffend if returned to the community". (4) The adverse inference drawn by the Minister from the information in his possession, including the National Police Certificate, was not an obvious inference or a conclusion obviously open on the known material. Mr Stowers was denied an opportunity to comment on the information in the Minister's possession. The denial of procedural fairness may have affected the outcome of the Minister's consideration of the exercise of power under s 501CA(4). 9 The Minister's decision record dealt with "Risk to the Australian community" at [38]-[45]. In paragraphs [38]-[43], the Minister took into account mitigating circumstances and rehabilitation. This included remarks made by a Judge hearing the appeal on 9 August 2016 regarding Mr Stowers' dysfunctional childhood and exposure to violence and domestic violence as a child, that he suffered from bipolar disorder and depression at the time he committed the assault offences for which he was sentenced, that Mr Stowers appeared committed to pursuing treatment for his mental health and that he loves his partner and his children and wants to be a good committed father and not carry the issues of his own dysfunctional childhood through his life. The Minister also took into account Mr Stowers' statement that, while in prison, he has done a lot of learning about his illness and role as a father and that was supported by a statement from his partner. The Minister noted that while Mr Stowers has made efforts to remain medicated during his time in custody, a return to the community would test his ability to manage his ongoing mental health issues and deal with his psychological issues in an unsupported environment where he would be exposed to external stressors. The Minister concluded this part of the decision record at [44] and [45] as follows: 44. I have considered Mr STOWERS' convictions for breaches of judicial orders and non-custodial dispositions, as well as his false declaration on an incoming passenger card on which he indicated that he had no criminal convictions at the time when he held a criminal conviction in New Zealand. I find that Mr STOWERS' prior conduct displays a disregard for judicial orders and gives me pause in accepting unquestioningly that he will not reoffend if returned to the community. 45. I cannot rule out the likelihood of Mr STOWERS reoffending in future, particularly if exposed to external stressors and/or if he neglects to manage his mental health issues. I find that there is an ongoing likelihood that Mr STOWERS will reoffend, albeit a low one and should he offend in a similar manner, it would result [in] physical and psychological harm to a member or members of the Australian community.

Submissions concerning the evidence 10 In their submissions, Mr Stowers and the Minister refer to aspects of material in the letters dated 23 December 2016 and 30 May 2017 to Mr Stowers from the Department of Immigration and Border Protection and to documents which accompanied those letters. It is useful to set out some of that material.

23 December 2016 letter and attachments 11 The Department's letter dated 23 December 2016 advised Mr Stowers of the cancellation decision and of his opportunity to apply to the Minister for its revocation. At pages 2-3 of its 6 pages it included the following information (bold emphasis added): Opportunity to seek revocation of the cancellation decision While your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations about revoking the decision to cancel your visa. You are hereby invited to make representations to the Minister about revoking the decision to cancel your visa. The representations must be made in accordance with the instructions outlined below, under the headings entitled "How to make representations about revocation of the decision to cancel your visa" and "Timeframe to make representations about revocation". The decision to cancel your visa may be revoked by the Minister under s501CA(4) of the Act if you make representations in accordance with the specified instructions and the Minister is satisfied that: • you pass the character test (as defined by s501 of the Act); or • there is another reason why the decision to cancel your visa should be revoked. The full text of s501CA of the Act is also included in Attachment 1. How to make representations about revocation of the decision to cancel your visa If you decide to make representations about the revocation of the decision to cancel your visa, you can write to us using the attached Revocation Request Form. Under s499 of the Act which permits the Minister to issue written directions about the exercise of powers under the Act, the Minister has issued Direction 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which identifies issues that are relevant to the revocation consideration. A copy of Direction 65 is enclosed for your information. You should address each paragraph in PART C of the Direction that is relevant to your circumstances. Please note that if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow Direction 65. If, however, the Minister makes a revocation decision personally, he or she is not bound by Direction 65, although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa. A copy of the following document, which contains information in the possession of the department at the time the mandatory decision to cancel your visa was made, is also enclosed for your information. • Conviction, Sentence and Appeals report from the New South Wales Department of Corrective Services dated 16 December 2016 • File note dated 23 December 2016 No further action will be taken in relation to the enclosed information as it will not alter the mandatory decision to cancel. However, if you make representations about revocation of the cancellation decision according to the instructions in this letter as outlined below, then the enclosed information will also be taken into consideration when deciding whether or not to revoke the mandatory cancellation decision. As some of the enclosed information is adverse information that may undermine the possible revocation of the decision to cancel your visa, if you decide to make representations in support of revocation of the decision to cancel your visa, you may also wish to provide specific comments regarding the enclosed information, in particular the adverse information. You can provide any other information that you feel the decision-maker should take into account. This can include, but is not limited to, letters of support from your family, friends, employers or others. … 12 There were 11 documents listed as being attached to the 23 December 2016 letter. Those documents comprised 86 pages in all. They included: (1) The Conviction, Sentence and Appeals document referred to in the extract from the 23 December 2016 letter above. This was a document of 3 pages. It set out details of his sentence on 22 July 2016 as amended on appeal under "Current Sentence Details". Under "Conviction Sentences and Appeals Details" it noted details of the items for which he was convicted on 22 July 2016 and the outcome of the appeal on 9 August 2016. None of Mr Stowers' other convictions or matters on which he had appeared before a court were set out in it. (2) The "File note" of one page which confirms that on 23 December 2016 Mr Stowers was serving a sentence on a full time basis in Grafton Corrections Centre in New South Wales and the details of Mr Stowers' conviction and sentence to 14 months imprisonment on 22 July 2016. It noted that the 14 months sentence was confirmed on appeal. (3) A four page form headed "Request for revocation of a mandatory visa cancellation under s501(3A)". Counsel for the Minister noted that Part A on page 3 of that form draws Direction 65 to the applicant's attention above the space provided for a statement of reasons for revocation of the cancellation decision. It notes that, if the decision is made by a delegate of the Minister, the delegate must use the Direction to guide his or her decision-making and if the Minister considers the case personally, it "provides a broad indication of the types of issues he/she may take into account. For this reason, you may wish to address the elements of the Direction in your response." (4) There is a form of 11 pages headed "Personal Circumstances Form". The Minister noted that: On page 8 of the form there is a heading of "Criminal History and Risk of Reoffending". That part of the form specifically asks "Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?" "What do you think is the likelihood that you may re-offend now? Please give reasons for your answer." The last page is headed "Suggested documents to support your claims". The Minister drew attention to a box headed "Conduct and rehabilitation" which calls for a number of reports related to the applicant's conduct in prison and while he was on parole, including information as to his psychological and medical condition, assessment of his rehabilitation prospects, details of courses undertaken and employment. (5) The Direction is a document of 44 pages including attachments. As noted in the Department's letter of 23 December 2016, Part C deals with decisions by the Minister whether to revoke a cancellation decision. Part C commences on page 15 at cl 13. Clause 13(2) states the three primary considerations which a decision-maker must take into account. The first of those, set out in subparagraph a) is the protection of the Australian community from criminal or other serious conduct. Clause 13.1(2) states matters that decision makers should give consideration to in relation to the protection of the Australian community. Clause 13.1(2)(b) relates to the risk to the Austalian community should the non-citizen commit further offences or engage in other serious conduct. Clause 13.1.2(2) states that in considering the risk to the Australian community, a decision-maker must have regard cumulatively to: a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending. The Minister drew attention to material in "Annex A" which deals with the application of the character test and noted the terms of cl 5.1 (emphasis added in accordance with the Minister's submissions): (1) In considering whether a person is not of good character on the basis of past or present criminal conduct, the following factors are to be considered: a) The nature and severity of the criminal conduct; b) The frequency of the person's offending and whether there is any trend of increasing seriousness; c) The cumulative effect of repeated offending; d) Any circumstances surrounding the criminal conduct which may explain the conduct such as may be evident from judges' comments, parole reports and similar authoritative documents; and e) The conduct of the person since the most recent offence, including: i. The length of time since the person last engaged in criminal conduct; ii. Any evidence of recidivism or continuing association with criminals; iii. Any pattern of criminal conduct; iv. Any pattern of continued or blatant disregard or contempt for the law; and v. Any conduct which may indicate character reform. 13 The Minister submitted that by the warning on page 3 of the 23 December 2016 letter, the material in the "Request for revocation of a mandatory visa cancellation under s501(3A)" form and the inclusion of the Direction in the materials provided, Mr Stowers was put on notice of the framework in which the Minister would make the decision on whether the cancellation of his visa should be revoked. Counsel submitted further that cl 13 of Part C of the Direction put Mr Stowers on notice that the seriousness of his offending and the likelihood of his offending in the future and the questions in the "Personal Circumstances Form" provided guidance to Mr Stowers in relation to the nature of the material he would be required to provide on those issues. While I accept this submission generally, I do not accept the submission that cl 5.1 had any relevance in the circumstances.

30 May 2017 letter and attachments 14 The Department again wrote to Mr Stowers by letter dated 30 May 2017. The letter relevantly stated as follows (bold emphasis added): Further information regarding possible revocation of visa cancellation, under s501CA of the Migration Act 1958 In a notice dated 23 December 2016 you are notified that your Class TY Subclass 444 Special Category (Temporary) visa was cancelled under s501(3A) of the Migration Act. Included in the notice were particulars of the information that the decision-maker considered was the reason, or part of the reason, for making the cancellation decision. You are invited to make representations about revocation of the cancellation decision. Your response to the invitation has been received. The Department has information which has been received and which may be taken into account when making the decision whether to revoke the decision to cancel your visa under s501CA of the Migration Act. The information consists of • National Police Certificate dated 19 December 2016 • Transcript of Judgement by the Gosford District Court on 9 August 2016 • Sentencing remarks of the Gosford Local Court on 22 July 2016 • New Zealand Police in Confidence dated 29 March 2017 • Incoming Passenger Cards dated 16 September 2005 and 5 August 2006 where you have indicated you have no criminal convictions. (Note: According to our records the actual arrival date in 2006 was 6 August 2006) A copy of this information is enclosed. You are invited to comment on this information. Your response must be in writing and may be sent by mail, email or fax. It can be sent to any immigration office, but it is preferred that you send it to the address shown below. 15 Counsel for Mr Stowers submitted that the 30 May 2017 letter identified the documents attached only by broad description, as opposed to any information that might be contained in them. He acknowledged that there was no statutory obligation on the Minister to include language in the 30 May 2017 letter noting expressly that some of the material attached to the letter may be adverse, being language of the kind which was included in the 23 December 2016 letter. Counsel acknowledged that Mr Stowers could be taken to presume that the documents attached to the 30 May 2017 letter might hold matters which might be taken to be adverse to him but he was not put on notice of how it might be adverse to him. He submitted that any issue that the Minister had with the contents of the National Police Certificate should have been highlighted in the same way as the emphasised words above put Mr Stowers on notice of the issue with the way he had completed the incoming passenger cards. 16 The National Police Certificate is a document of three pages in date order from most recent to earliest offences. It showed: (1) At 9 August 2016, convictions for: (a) common assault (five months prison); (b) stalk/intimidate intend fear physical etc harm (six months prison); (c) two counts of assault occasioning actual bodily harm (14 months prison, one with a non-parole period of six months); and (d) armed with intent to commit indictable offence (six months prison). (2) At 22 July 2016, the same convictions, noting that a severity appeal had been lodged; (3) At 25 July 2014, in Gosford Local Court, a conviction for driving while disqualified from holding a licence (four months prison); (4) At 26 June 2013, in Gosford Local Court, convictions for common assault (an 18 month bond with supervision) and driving while disqualified from holding a licence (a mandatory 100 hour community service order). The third conviction (for which no penalty was recorded) was: Fail to appear in accordance with Bail Granted undertaking (5) At 1 April 2010, in Liverpool Local Court convictions for: (a) using an uninsured motor vehicle ($200 fine); (b) using an unregistered registrable class a motor vehicle ($200 fine); (c) two counts of driving with a high range prescribed concentration of alcohol (the first count with a fine of $1,200 and three years disqualification commencing 9 December 2010, and the second with a fine of $2,000 with a 16 month suspended sentence on entering into a 16 month bond and a five years disqualification commencing 1 April 2010 (habitual offender): quashed traffic offenders program); (d) using an uninsured motor vehicle and using an unregistered registrable class a motor vehicle ($300 fine for each count); (e) not stopping at a red arrow ($100 fine and traffic offenders program); and (f) drive on road etc while license suspended ($600 fine with a two year bond and two years disqualification commencing on 9 December 2013 (habitual offender) quashed traffic offenders program); in each case with court costs of $76. (6) At 6 February 2008, in Penrith Local Court, breaking and entering a building (steal) to a value of less than or equal to $15,000 (a two year bond). 17 Counsel for Mr Stowers submitted that the National Police Certificate might have been used by the Minister in any number of ways. For instance, it might have been used in focussing on whether Mr Stowers passed the character test or there might just have been an oversight in giving it to him previously or it might have gone to discretionary considerations relevant to whether the cancellation decision should be revoked. Counsel submitted that Mr Stowers had no notice that the Minister might focus on those aspects of the National Police Certificate relating to "breaches of judicial orders and non-custodial dispositions" which gave rise to a finding that his "prior conduct displays a disregard for judicial orders" which would give the Minister "pause in accepting unquestioningly that he will not reoffend if returned to the community" as set out at [44] of the decision record. Counsel concluded that this finding related to the part of the National Police Certificate referring to 26 June 2013: see [16(4)] above. 18 When it was put to counsel that there were a number of non-custodial dispositions, he submitted that this only made his point stronger. Notwithstanding that response, counsel submitted that the Minister's focus was on Mr Stowers' conviction on 26 June 2013 for breaching the bail undertaking. He says that there may well have been an explanation for why Mr Stowers did not appear in accordance with the bail undertaking. That explanation might have led the Minister to conclude differently concerning whether he had reason to "pause in accepting unquestioningly" that Mr Stowers would not reoffend. 19 Counsel for Mr Stowers submitted that: When Mr Stowers received the National Police Certificate, he knew that the Minister knew that he had a long list of convictions, some more serious than others. What he did not have an opportunity to comment specifically on was that the breach of bail undertaking or the non-custodial orders would or might lead to a conclusion that he had a particular characteristic about him that was adverse. That characteristic is that he displays a disregard for judicial orders. A finding that Mr Stowers had a disregard for judicial orders is a powerful one going to a central feature of his character in relation to a prediction of how he might behave in the future in respect of further offending. This should have been put to him with enough particularity to allow Mr Stowers to comment on it. The purpose of the obligation to afford procedural fairness to a person who may be affected by an adverse decision is to avoid the "practical injustice" which may occur when an opportunity to explain is lost, relying on Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; HCA 6 at [38] per Gleeson CJ. In the context of a decision under s 501CA(4), counsel also relied on the dictum of Tracey J in Picard v Minister for Immigration and Border Protection [2015] FCA 1430, at [42] that: … 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. 20 The Minister's counsel submitted that: Mr Stowers was on notice of how his criminal history would or might be read and used because of the sentencing remarks made in the Local Court on 22 July 2016, a copy of which was included with the 30 May 2017 letter. Mr Stowers' submission that the Minister's conclusions drawn from his history of offending set out in the National Police Certificate were not "obvious" or "obviously open on the known material" cannot be sustained. The ground is the equivalent of suggesting that procedural fairness requires an applicant for revocation of a cancellation decision to be provided with submissions prepared by the Department for the Minister explaining how the evidence might be reviewed, a contention which was rejected in M238 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 at [54]: Procedural fairness in these circumstances did not require the Departmental submission to be provided to the appellant. Natural justice or procedural fairness is to be equated with fairness in all the circumstances: Kioa v West (1985) 159 CLR 550, 583. What are required are fair and flexible procedures, bearing in mind the circumstances of the case, the issues involved, and the nature of the enquiry and the decision: Kioa v West at 583-85. There is no rule that the person the subject of decision must be given any departmental submission given to the decision maker: cf Local Government Board v Arlidge [1915] AC 120. The submission was a balanced and measured collection and distillation of voluminous material. It contained no adverse matter to which the appellant had not otherwise been alerted by Direction No 21, the apparent nature of the power and common sense. The appellant had had made known to him the questions relevant for him to address and he had an adequate opportunity to do so. 21 The Minister also relied on the reasoning in Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112; FCA 674 at [76]-[88] per Mortimer J and in particular her Honour's analysis of the reasoning in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. 22 The copy of the sentencing remarks made in the Gosford Local Court on 22 July 2016 included with the 30 May 2017 letter describe the circumstances of Mr Stowers' offences. The Judge said (as written, bold emphasis added): The accused is a person who is not unknown to the Court. He has got a history of offending albeit in different matters at some stage; break, enter or steal, driving matters, high range drink driving, driving while suspended. But importantly in 2011, he was put on a good behaviour bond for an assault - a domestic related assault. And now he has these offences. The Court indicated on the last occasion that a gaol term was the appropriate penalty and as a request from the accused, he wished to be assessed for an intensive correction order. The report [an unfavourable intensive correctional order assessment] reads this way. That his previous community service was revoked for non-completion. He demonstrated .. (not transcribable) .. getting information in this report. He was telephoned, didn't turn up, telephoned again, said he could not .. (not transcribable) .. because he had work commitments. It was 7 July he turned up, this information was given, but he has not been in contact with the community people since that time. It has been urged on me that I should impose a term of imprisonment, but that should be suspended. Why it should be a suspended, I am not quite sure. I would have thought every indication at the moment if I was to suspended a sentence, he would not comply with, he could not comply with a direction to attend by the Probation and Parole in the past, he has not been able to comply with community service orders he has been given in the past. My view is that a term of full-time imprisonment is the only appropriate penalty.

Consideration 23 At the time Mr Stowers received notification of cancellation of his visa, he was given 89 pages of material. I accept that this would be daunting to an unrepresented litigant who has only 28 days to lodge his application to seek to persuade the Minister that he should be allowed to remain in Australia. Although he received the Direction which set out considerations which the Minister might take into account, Mr Stowers was also given the Conviction, Sentence and Appeals report and the File note on 23 December 2016, and these documents focussed only on the most recent and most serious convictions. Had that been all of the material which Mr Stowers received, then it is likely that I would have been persuaded that the Minister's findings at [44] of the decision record were not "obviously open on the known material" despite the terms of the Direction. It is unsurprising that, in completing the "Personal Circumstances Form" and the "Request for revocation of a mandatory visa cancellation under s501(3A)" form, which he returned to the Minister on 25 January 2017, Mr Stowers did not address the "lesser" (albeit serious) driving offences or Mr Stowers' failure to comply with the bail undertaking or community service orders, referred to in the National Police Certificate given to him on 30 May 2017. 24 I also accept that there are a number of uses to which the National Police Certificate might have been put. While it would clearly have been desirable for the Certificate to have been given to Mr Stowers on 23 December 2016 (since it predated the delegate's decision), it would have been unsafe for Mr Stowers to consider that it had been given to him merely to address an oversight when he received it with the 30 May 2017 letter. It could have been relevant to character, although Mr Stowers failed the "character" test under ss 501(6)(a) and (7)(c) by reason of the 22 July 2016 convictions alone. The submissions which Mr Stowers might make to the Minister had to be directed to persuading him that there was "some other reason" for the cancellation decision to be revoked under s 501CA(4)(b)(ii). 25 The 30 May 2017 letter contained not only the more extensive National Police Certificate but also the sentencing remarks made upon Mr Stowers' conviction on 22 July 2016 in which the issue of his pattern of offending and the sentencing Judge's dissatisfaction with his compliance with non-custodial orders were clearly raised. That the Minister might consider these materials relevant to the question of the likelihood of his reoffending was "obviously open" on this material when taken with Part C of the Direction. Mr Stowers was invited to respond to these materials. 26 Counsel for Mr Stowers focussed his argument on his conviction (without penalty) on 23 June 2013 for his failure to comply with a bail undertaking. However, as a matter of grammar and the sense of the paragraph, I do not accept that the Minister's remarks at [44] of the decision record were addressed only to that matter. The National Police Certificate taken with the 22 July 2016 sentencing remarks raise clearly the issue that Mr Stowers has failed to comply not only with the bail undertaking but with other non-custodial dispositions of his convictions: for instance, driving while disqualified. 27 I agree that it would have been preferable if the Department had made reference to his failure to company with judicial orders in the 30 May 2017 letter, as was done with the issue concerning the failure of disclosure in the incoming passenger cards. However, it was obvious that the National Police Certificate contained more information than the Conviction, Sentence and Appeals report and File note which had been included with the documents on 23 December 2016. As Counsel for Mr Stowers conceded, it might be presumed that the National Police Certificate contained material adverse to Mr Stowers. The sentencing Judge's remarks included with the 30 May 2017 letter were plainly critical and directed to the issue of compliance. The relevance of Part C of the Direction had been drawn to his attention in more than one place in the materials given to Mr Stowers on 23 December 2016. It is clear from cl 13.1(2)(b) and 13.1.2(2)(b) of the Direction that the likelihood of re-offending would be taken into account and both the National Police Certificate and the sentencing remarks went to that issue.

Conclusion 28 Having regard to the reasons set out above, the sole ground of Mr Stowers' application has not been made out. Accordingly the application should be dismissed with costs. 29 The Court notes with appreciation that Mr Johnson appeared pro bono on this application. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Migration Act 1958(Cth)ss 499, 501, 501CA

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