Van Rooyen v Minister for Immigration and Border Protection

2. Visa history and summary of further relevant events 5 As noted, on 17 September 2013 the applicant lodged his Visa application. It was sponsored by his partner, Ms Namer. At the time of lodgement, the applicant was held in Villawood Immigration Detention Centre. On 13 November 2013 the application was refused by a delegate of the Minister. 6 On 21 October 2013 the applicant applied for a bridging visa E. This was refused by a delegate on 23 October 2013 on the basis that he was not satisfied that the applicant would comply with the visa conditions if it were granted. The applicant applied to the Migration Review Tribunal (MRT) for a review of this decision. A hearing was conducted on 31 October 2013. The MRT determined the application favourably to the applicant, whereby the application was remitted to the Minister and the applicant returned to the community. 7 Meanwhile, on 13 December 2013 the applicant lodged a request for a review of the decision of the delegate to refuse his partner Visa application with the MRT. On 23 February 2015 the Tribunal affirmed the delegate's decision (MRT decision). However, on 11 May 2015 a judge of the Federal Circuit Court of Australia (FCCA) entered orders by consent quashing the MRT decision. 8 As noted above, on 13 August 2014, the applicant was convicted of a number of offences and sentenced to 18 months imprisonment. 9 On 6 January 2015, the applicant received a Notice of Cancellation of his Visa under the Act, pursuant to s 501. 10 The applicant made submissions for the revocation of that decision which were not successful. He then appealed to the Administrative Appeals Tribunal (AAT). 11 On 21 March 2016, the AAT set aside the decision and the applicant was released into the community. 12 On 10 January 2017, the Minister refused the applicant's application for a Partner Visa under s 501 of the Act.

3. The Decision 13 The Decision of the Minister is set out in a one-page document dated 10 January 2017. It records that the Minister has considered all relevant matters including an assessment of the character test as defined by s 501(6) of the Act, and all information before him provided by or on behalf of the applicant in connection with the possible refusal of his application for the Visa. The reasons for refusing to exercise his discretion under s 501(1) of the Act are set out in a detailed statement of reasons (Reasons). The matters set out below are recorded in the Reasons. 14 On 13 August 2014 the applicant was convicted in the Local Court of New South Wales of offences including dishonestly obtaining property by deception (22 counts) for which he was sentenced to a totality of 18 months imprisonment, with a 12 months non-parole period. A National Police Certificate included in the materials makes reference to the applicant receiving other convictions, but in response to a submission made by the applicant's representative, Mr Turner, the Minister placed no weight upon those additional convictions. 15 As a result of the sentences that the applicant accepted had been imposed, the Minister found that he was not satisfied that the applicant passes the character test by virtue of ss 501(6)(a) and 501(7)(c) of the Act . 16 The Minister then considered whether he should exercise his discretion to refuse the applicant's Visa application. 17 In considering the nature and seriousness of the applicant's criminal conduct, having regard to the submissions made on behalf of the applicant, as well as other documentation, the Minister found that the applicant had been convicted of approximately 51 offences, the majority of which relate to offences of dishonesty. In addition to the 22 counts mentioned above, these included 14 counts of dishonestly obtain financial advantage by deception and the offence of possess identity information to commit indictable offence, for which he was sentenced concurrently to 18 months imprisonment. In addition, he was convicted of goods in personal custody suspected being stolen for which he was sentenced to 6 months imprisonment and two counts of possess prohibited drug for which no further penalty was imposed. 18 The Reasons record that the applicant accepted that his conduct establishes a pattern of offending over a 10 month period, and that in considering this issue the AAT had found that although he had committed a "large number" of offences during a period of 10 months, "it does not appear that the offending escalated" and that "apart from the offences committed during that discrete period of time, there was no pattern of offending". The Minister made findings in conformity with the AAT's observations. 19 The Minister then considered whether the applicant poses a risk to the Australian community through the likelihood of reoffending, having regard to any mitigating or causal factors in his offending. He adopted the finding of the AAT that if the applicant were to engage in similar conduct, members of the community and the banking industry would suffer financial loss and inconvenience which may contribute to feelings of insecurity in relation to the banking system itself. 20 The Minister next considered the circumstances relating to the applicant's criminal conduct and noted the applicant's submission that his criminal conduct arose from his use of illicit drugs in response to stress in his life and more specifically as a response to financial hardship. This led to the applicant and his partner, Ms Namer, spending the money that they had saved for his partner Visa application in order to cover his business expenses. His bridging visa and associated working rights then expired, and he became depressed and felt hopeless. As an unlawful resident in Australia he was not entitled to social security benefits and relied on Ms Namer for financial support. Ms Namer's mother suffered an acute mental breakdown and the applicant struggled to cope with caring for her whilst Ms Namer was at work. Ms Namer then lost her job as a result of taking time off to care for her mother. At this time, Ms Namer and the applicant made the difficult decision to terminate an unplanned pregnancy. This exacerbated the applicant's depression. In a state of despair and deep depression, instead of getting help, the applicant turned to drugs. 21 The applicant had used cannabis from the ages of 16 to 22 and in Sydney he was introduced to the use of methamphetamine, commonly known as "ice", which developed into daily use costing Ms Namer and the applicant $2000 per week by the time of his arrest. The applicant developed a habit of gambling on poker machines in order to finance his drug use. The Minister noted that in the AAT decision the Tribunal had found that the applicant committed a large number of offences to fund his addiction. The Minister accepted the applicant's submission that there was a nexus between his illicit drug use and his criminal offending. 22 The Minister then considered the substance abuse related rehabilitation that the applicant has undertaken. After considering the available materials, including findings made by the AAT, the Minister concluded that the specific rehabilitation undertaken by the applicant, although limited, will reduce his risk of reoffending. The Minister noted that the applicant did not claim to have undertaken any rehabilitation relating to gambling and that the drug rehabilitation which he undertook did not include a residential program, which was recommended to him in 2014. 23 The Reasons then refer to the Minister's consideration of any remorse and insight into his conduct shown by the applicant. He found that the applicant had taken responsibility for his offending and has developed insight into the effect of his conduct upon his victims and the wider community. The Minister accepted that the applicant is genuine in his stated intention to refrain from reoffending. In reaching this conclusion the Minister observed: [50] In a recent letter to the department, [the applicant] stated, "I am very grateful for this second and last chance I was given and I take it very seriously. Since my release I have done nothing but the right thing and will continue to do so". In an earlier statement, [the applicant] writes that every day he regrets his offending conduct. He acknowledges the pain and suffering, inconvenience and "turmoil" he caused by his actions, for which he wishes to attempt to make amends. 24 The Reasons then observe that the applicant's conduct in criminal and immigration detention was without incident and consider the support available to the applicant in the community if he were permitted to reside with Ms Namer and her mother in Sydney. In this part of the Reasons, the Minister refers to [62], [65] and [74] of the MRT decision of 23 February 2015, which are set out in Section 5.1 below and are relevant to ground 1. 25 The Minister concludes, after considering these matters and a number of other aspects of available evidence, that there is an ongoing likelihood, although low, that the applicant will reoffend. 26 The Minister then had regard to the best interests of minors or children (there are none) and the expectations of the Australian community. The Minister refers to the applicant's ties to the Australian community, his positive contributions and the impact on family members in Australia. The Reasons record that the Minister is satisfied that the applicant and Ms Namer share a genuine, ongoing spousal relationship and that the applicant has formed a close bond with Ms Namer's mother. He accepts that due to obligations that Ms Namer owes to her mother to care for her, she would not be able to depart Australia with the applicant. 27 After referring to other considerations, including the extent of impediments that the applicant may face if his Visa is not granted and he is obliged to return to South Africa, the Minister exercised his discretion to refuse to grant the applicant the Visa.

4. The legislation 28 Section 501 of the Act relevantly provides: Refusal or cancellation of visa on character grounds (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. … (5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A). … 29 Sections 54, 55 and 56 of the Act provide: Section 54 Minister must have regard to all information in application (1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. (2) For the purposes of subsection (1), information is in an application if the information is: (a) set out in the application; or (b) in a document attached to the application when it is made; or (c) given under section 55. (3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions. Section 55 Further information may be given (1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. (2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information. Section 56 Further information may be sought (1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa. (2) Without limiting subsection (1) the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.

5.1 Irrelevant Consideration-the MRT decision 30 In ground 1 of his application the applicant contends that the respondent took into account an irrelevant consideration being, broadly, the MRT decision. The error is said to have arisen because on 11 May 2015 a judge of the Federal Circuit Court had, by consent, issued a writ of certiorari quashing that decision. The applicant submits that from that date the decision became a nullity, it could no longer be relied upon or taken into consideration by the Minister for the purposes of exercising his discretion under s 501(1) of the Act. 31 During oral submissions the applicant submitted that the irrelevant information obtained from the MRT decision is contained in the following 3 paragraphs of the Decision; [62] I noted the decision of the MRT, on 23 February 2015. This Tribunal heard evidence that Ms Namer attends drug and alcohol counselling in Bondi Junction. In its decision of 22 September 2015, the MRT also refers to Ms Namer's 'struggles with addiction, which are in addition to those of the applicant'. … [65] I also took into account the evidence of [the applicant] and Ms Namer, to the MRT in February 2015 that, prior to [the applicant's] imprisonment, they 'often' played poker machines at local hotels. … [74] According to a decision of the Migration Review Tribunal (MRT) on 23 February 2015, when he was asked why he had not withdrawn his earlier Partner application, [the applicant's] evidence was that the department had lost his file and, it was not until he made the current Partner application that he was contacted and told he must first withdraw the previous application. [The applicant] told the MRT that he was aware his Bridging visa had expired but he and Ms Namer did not have the money to apply for a Partner visa. He did not take any steps to contact the Department. [The applicant] was placed in immigration detention, from where he lodged the Partner application sponsored by Ms Namer. 32 The applicant submitted that by including this information, the entirety of the Minister's decision is vitiated because he took into account irrelevant considerations. 33 The ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he or she is bound to take into account in making that decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (Peko) at [39] (Mason J). Conversely, where a statute confers a discretion which in its terms is unconfined, the factors which may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision maker may have regard; Peko at [40]. 34 The discretion conferred upon the Minister by s 501(1) is general in its terms and has been described, with approval in numerous cases as 'unfettered'; see, for instance, Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 at [71]-[74] (Kiefel and Bennett JJ). 35 There can be no doubt that the Minister was broadly entitled to have regard to information contained in the MRT decision when considering the exercise of his discretion. The applicant did not suggest otherwise. The only question raised by the applicant is whether the consequence of the issue of the writ of certiorari somehow renders the information to which the Minister referred (at [62], [65] and [74]) legally irrelevant. 36 In my opinion it did not. The effect of the consent orders quashing the MRT decision is that, as far as the applicant's application for the Visa was concerned, the decision was of no legal effect. However, that did not mean that the Minister was bound not to consider the content of the MRT's reasons or the factual matters that were referred to therein. As I have noted, the Minister took into account some limited factual matters recited in the MRT decision. Those matters arose from evidence given by the applicant himself during the course of the MRT hearing. The potential for that information to have a bearing upon the Minister's decision-making process was not impugned by the fact of the issue of the writ of certiorari. 37 This is apparent when one observes that appended to the consent orders and apparently forming a part of them was the following statement: The first respondent accepts that the application must be allowed on the basis that in determining whether there were compelling reasons at the time of the application for now applying the schedule 3 criteria, the second respondent asked itself the wrong question by considering matters in [61] and [67] of its decision that occurred at a later point in time. 38 That statement identifies that the basis for the consent order did not touch upon the accuracy of the information recited in the decision, but rather concerned a legal error reflected in the reasoning (considering matters that occurred at the incorrect point in time) that served to vitiate the decision. 39 The consequence is that the order quashing the decision does not have the effect that the Minister was bound not to take into account information contained within the decision of the MRT and, accordingly, ground 1 of the application must fail.

5.2 Denial of Procedural Fairness 40 In ground 2 the applicant contends that the Minister denied him procedural fairness because in the Reasons he relied upon the decisions of the MRT dated 1 November 2013 and 23 February 2015, and failed to disclose that he would do so, or give the applicant the opportunity to comment upon those decisions. 41 The problem with the applicant's position is that on 14 September 2016 a letter was sent to the applicant entitled "Notice of intention to consider refusal of your visa application under s 501(1) of the Migration Act 1958". In that letter, the applicant was informed that the decision-maker may rely on certain listed documents held by the department in reaching its decision. Included in the list were the two MRT decisions dated 1 November 2013 and 23 February 2015. 42 The applicant attempted to overcome this problem by submitting that whilst the two decisions were included in the letter, there were a number of other documents included in the list that were not taken into account or referred to in the Reasons of the Minister. The applicant was entitled to know precisely which documents would be considered, especially when there was a "reasonable presumption" that the decision of the MRT of 23 February 2015 would not be taken into account because it had been quashed. By failing to identify the precise documents (amongst many), and by taking into account information contained in a decision that had been quashed, the Minister fell into jurisdictional error. 43 This argument is unpersuasive. To the extent that it relies upon the quashing of the 23 February 2015 decision of the MRT, it has been addressed and rejected in my reasons concerning ground 1. To the extent that it relies upon the argument that the Minister referred only to some of the documents listed in the notice provided to the applicant, it reflects a mistaken basis upon which an error concerning failure to accord procedural fairness may arise. The letter of notice gave the applicant an opportunity to comment upon and make submissions in relation to the two decisions of the MRT; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [36]. The notice of the documents which may be taken into account gave the applicant ample opportunity to consider and respond to them. No failure to accord procedural fairness is made out.

5.3 Failure to take account of material advanced 44 In ground 3 the applicant contends that the Minister failed to take into account 4 documents that were provided to him, and accordingly he failed to give consideration to all of the evidence and arguments presented by the applicant. 45 The 4 documents upon which the applicant relies are; (a) a submission dated 17 October 2016 (October 2016 submission); (b) a Local Court order for Report dated 6 November 2016 [sic 11 June 2014] (Order for report); (c) a National Police Certificate dated 6 November 2014; and (d) a letter from the applicant's representative dated 20 February 2015. 46 The Minister does not dispute that he did not have these documents before him in reaching his decision. However, he submits that even so, the jurisdictional error contended for was not made out because the information contained in the documents was in fact before him through other documents which he did take into account. As a consequence, the failure to have regard to those particular documents was not material to the decision and did not sound in jurisdictional error. 47 The decision of Robertson J in Minister for Immigration and Citizenship v SZRKT and anor [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) provides a useful survey of the principles relevant to the determination of a jurisdictional error in this context. He observes that in Craig v South Australia (1995) 184 CLR 163 at [179] the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) said: If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. 48 However, merely to ignore relevant material does not of itself establish jurisdictional error. As Robertson J said: [97] …This is consistent with proper limits on judicial review so that fact-finding is a matter for the tribunal of fact while the Court is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation. … [111] In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error. [112] As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant's claims. To the extent that the Minister's submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal's reasons I do not agree. 49 In this context it is apparent that the fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error. Whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. See also Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 (Katzmann, Griffiths, Wigney JJ) at [50] - [54]. 50 In the present case, the question of whether the Minister fell into jurisdictional error in failing to take into account the 4 listed documents will depend upon the information which, as a matter of substance, was not taken into account by the Minister as a result of this omission. The applicant submits that the question is to some extent influenced by the language of s 54(1) of the Act, by which the Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. The documents identified in ground 3 fall within those identified in s 54(2)(c), being additional information that is deemed to be "in the application" for the purposes of s 54(1). This, he submits, elevates the obligation on the part of the Minister. The applicant relies particularly on the decision of Tracey J in Amoorthum v Minister of Immigration and Border Protection [2016] FCA 277 (Amoorthum) at [12], [21], [24, [29], [30] to found a submission that the material in the 17 October 2016 submissions (at least) is relevant and material, and was not taken into account by the Minister. 51 It is apparent from the language of s 54(1) that the mandatory obligation upon the Minister is to have regard to the information in the application. In order for a failure to be made out, it must be established that there was a failure on the part of the Minister to have regard to the information in the application. This is to be determined as a matter of substance. Accordingly, I now turn to each of the documents identified. 52 The applicant submits that the October 2016 submission contains a number of identified paragraphs that were not present in later submissions made to the Minister, and which the Minister did not have available to him for consideration. The October submission is addressed to the Visa Applicant Character Consideration Unit, and is entitled "Application to the Minister for revocation of notice of intention to consider refusal under s 501(1) of the Migration Act 1958". It is necessary to observe that two further submissions supplied by the applicant are relevant. The first is dated 11 February 2015 (first submission) and following the October 2016 submission is a further submission, which is dated 18 November 2016 (third submission). There is no dispute that the first and third submissions were before the Minister. 53 The October 2016 submission includes a section entitled "Background Information" which includes of a chronology of events concerning the applicant's visa applications. The applicant identifies [10] - [12] as presently relevant. They provide as follows: 10. Pursuant to section 501CA of the Act, Mr Van Rooyen made representations to the Minister seeking a revocation of the cancellation decision. 11. On 29 February 2016, the AAT set aside the Minister's decision not to revoke the cancellation decision. Mr Van Rooyen was subsequently released into the community. 12. In its determination, the AAT acknowledged, and as do we, that it was not in dispute that by reason of his criminal record, Mr Van Rooyen does not past the "character test" as prescribed by the Migration Act, 1958. However, the AAT was satisfied that the risk of Mr Van Rooyen causing future harm to the Australian community was acceptably low when balancing the primary and other considerations such that, Mr Rooyen's ties to the Australian community should outweigh the primary and other considerations. 54 The submission then in [12] refers to and quotes [78] of the AAT decision. 55 The information contained in these paragraphs is largely banal and was plainly known to the Minister. The matters recited at [10], [11] are background facts that were set out on pages 2 - 3 of the Submission to the Minister from the Department, which the Minister signed and dated 10 January 2017 and which he certified that he had considered. The information contained in [12] was plainly known to the Minister. The acknowledgement in the chapeau to [12] was repeated in the first and third submissions and is not in dispute. 56 There can be no doubt that the Minister was aware of and had regard to the contents of the AAT decision. The Minister referred in terms to it in several places, including at [10], [18], [19], [23], [31], [35]. He also quoted parts of that decision. In my view it is plain that all of the information referred to in [10] - [12] of the October 2016 submission was in substance before the Minister. 57 The applicant next relies on [22] of the October 2016 submission, where it quotes [61] of the AAT decision in the following manner (emphasis in the quote is as set out in [22]): 61. On the basis of Mr Jones' evidence I am satisfied that Mr Van Rooyen has overcome his drug addiction and genuinely intends not to revert to using illegal drugs or being involved in criminal activity. Of course, no-one can guarantee that he will maintain his resolve, but taking into account all of the evidence I am satisfied that the risk to the Australian community should Mr Van Rooyen be releas [sic] from detention and remain in Australia, is low. I have reached this conclusion having given due consideration to the Government's commitment to protecting the Australian community from harm." (emphasis added). 78. Notwithstanding Mr Van Rooyen's history of drug-taking and deception, I am satisfied that the risk of future harm being caused by Mr Van Rooyen is an acceptable one. Taking into account all of the considerations required by Direction 65 I am satisfied that, as the risk to the community is acceptable, the consideration of his ties to the Australian community outweigh the other considerations, including the primary considerations." (Emphasis added) 58 Following this quote, the applicant made the submission in [23] that his presence in the community since his release in February 2016 without offending is recent, and that objective evidence that the risk to the Australian community should he remain in Australia on a permanent partner visa is "acceptably low". 59 Notably, the applicant does not contend that the submission in [23] was not brought to the attention of, or considered by the Minister. Rather it is the failure to take into account the quoted passages of the reasons of the AAT that is relied upon. 60 However, in my view the Minister's Reasons specifically considered the substance of these passages from the AAT's reasons. At [45], [46] the Minister said: 45. On the basis of Mr Jones' evidence, the AAT was satisfied that Mr Van Rooyen had overcome his drug addiction. The Tribunal member observed that "of course, no-one can guarantee that he will maintain his resolve" and noted that Mr Van Rooyen had received 'very little professional help' and, while his addiction was in sustained remission, it 'may never be cured', before finding, on balance, that the risk to the Australian community posed by Mr Van Rooyen, was 'low'. 46. I consider that the drug specific rehabilitation undertaken by Mr Van Rooyen, although limited, will reduce his risk of re-offending. However, I am cognisant that Mr Van Rooyen does not claim to have undertaken any rehabilitation related to gambling and, while he attended NA meetings for the six week period of his bail and has seen a counsellor on several occasions, the drug specific rehabilitation he has undertaken does not include the residential program it was recommended in 2014 that he complete. 61 Accordingly, it is quite apparent that the Minister did take into account and consider these matters. 62 Next, the applicant relies on [28]- [30] of the October 2016 submissions, which point out (at [28]) that the AAT set aside the decision not to revoke the cancellation of the applicant's bridging visa, acknowledging that it was associated with his partner visa application. That acknowledgement was said (at [29]) to support the applicant's submission that he does not present any future risk to the Australian community, and that his ties to the community outweigh other considerations. The submissions further contended (at [30]) that it was "at the very least unreasonable if not illogical" that the applicant could now end up back in the AAT appealing the refusal of his partner visa to address "exactly the same offending that the AAT has already considered in overturning the decision cancelling the bridging visa attaching to the partner application". 63 I have pointed out that the Minister in his Reasons made extensive cross-reference to the decision of the AAT. He should be understood to have taken the information set out in that decision into account in his Reasons. Further, in [3] of the applicant's third submissions the applicant made a submission to the same effect as that which he made in [28] - [30] of the October 2016 submissions. Accordingly, the information contained in [28] - [30] of the October 2016 submissions was, in my view, clearly before the Minister. 64 The applicant, rightly in my view, placed less emphasis on the remaining 3 documents. The Order for Report does no more than list the applicant's charges. The Minister accepted the submissions of the applicant as to what charges the applicant had been charged with and convicted of. In this regard the Reasons provide: 9. I find that the National Police Certificate appears to substantially overstate the number of Mr Van Rooyen's convictions and to include offences of which he was not convicted. For this reason, I have placed no weight upon it. Mr Van Rooyen's representative agrees that Mr Van Rooyen has been convicted of offences including 22 counts of dishonestly obtain property by deception, and he does not dispute the sentences imposed for these offences. 65 Accordingly, the information contained in the Local Court Order for Report can have no material bearing upon the exercise of the function of the discretion of the Minister. 66 The same conclusion applies to the National Police Certificate dated 6 November 2014, which was superseded by a further National Police Certificate dated 28 October 2015 and which was before the Minister. Further, as the passage of the Reasons at [9] makes clear, the Minister did not accept the 6 November 2014 Police Certificate as accurate, and placed no weight on it. Instead, the agreed position of the applicant was that he had been convicted of offences including 22 counts of dishonestly obtain property by deception. 67 Finally, the applicant relies on a letter from the applicant's representative dated 20 February 2015. That letter attached a statutory declaration signed by the applicant dated 10 February 2015 that had no substantive content save to annexe a letter from the applicant to the Minister. With the exception of formatting differences, this letter is the same as a letter included within the materials supplied to the Minister, and to which he had regard. Accordingly, this material was taken into account by the Minister. 68 It remains for me to consider the submission made by the applicant that the word "must" in s 54(1) leaves little scope for the court to conclude other than that the applicant has been denied natural justice by reason of the failure of the Minister to have the 4 documents before him, and that the Decision must be set aside. The applicant submits that the ratio of the decision of Tracey J in Amoorthum is to the effect that it does not matter that the information may have been available from other sources that were before the Minister. The applicant must be given the opportunity to put the whole of his case before the court, as he sees fit. 69 In Amoorthum the applicant was a citizen of Mauritius who was self-represented. He had provided a detailed letter to the Minister in response to his receipt of a Notice of Intention to Consider Refusal. That letter was not provided to the Minister. The Minister argued that the information in the letter was available from other sources and so the decision was not vitiated. 70 In rejecting the Minister's argument, Tracey J relevantly said: [26] The Minister correctly submitted that the information contained in the letter was available to her from other material supplied to her by the Department. The letter, however, contained more than information. It contained submissions and assertions by the applicant, many of which were self-serving, but which sought to persuade the Minister that he satisfied the character test and should be granted a visa. He said, for instance, that, whilst in prison on remand, he undertook programs in order to better himself and had developed his religious faith. [27] At another point he said that he extremely regretted his offending "because it has [led me to] having a criminal history resulting in disastrous consequences on my family and me." The issue of whether or not the applicant was remorseful for his criminal conduct was one to which the Minister referred in her reasons. She said (at [18]) that she noted "that the psychologist has stated that [the applicant] was very remorseful for his actions and that he had participated well in counselling after his release from prison, and was now fully rehabilitated." Despite this, in the following paragraph the Minister said that the applicant had "not expressed any remorse for his offending …". The Minister might more readily have accepted that there was less of a risk of the applicant engaging in conduct of the kind referred to in s 501(6)(d) of the Act had he shown remorse. … [29] The exercise of the Minister's power under s 501 of the Act is conditioned by the requirement that it be exercised in accordance with the principles of procedural fairness: see Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 at 56-7 (Gleeson CJ). It is a basic and fundamental requirement of procedural fairness that a person in the applicant's position should be provided with an opportunity to make his or her case to the Minister. The means by which this opportunity was to be afforded in the present case was proposed by the Department. … Unless the Minister read and considered the submissions, as prepared by the applicant, it cannot, in my view, be said that he had been afforded the opportunity to present his case to the Minister. [30] The material which he assembled in his letter or which he attached to it may or may not have had the desired result. It is not, however, for the Court to speculate about what the Minister might have done had she been provided with a copy of the applicant's letter. The letter should, as a matter of procedural fairness, have been placed before her and considered by her. It contained the substance of the applicant's case. It was the means by which he was to be accorded a fair hearing. It was not a matter for the Department to determine (if it did) that the material which it had assembled and provided to the Minister was sufficient to expose to her the substance of the applicant's case such that she did not need to see the letter. I do not overlook the possibility that the letter was not provided to the Minister as a result of some oversight. Whatever the reason be, the failure to place the letter before the Minister deprived the applicant of the opportunity, to which he was entitled, to be heard in support of his application for a visa. 71 In my view Amoorthum is readily distinguished from the present case. In the present case the applicant was legally represented, and the representative supplied extensive submissions to the Minister before and after the October 2016 submissions. The October 2016 submissions presage the delivery of the third submissions, which were to be provided once further medical evidence and statements were obtained. Furthermore, the applicant has not identified any argument in the October 2016 submission that is not addressed in one or other of the submissions before the Minister. In the present case there is no serious question that the applicant did not have an opportunity to be heard in support of his application. Even allowing for the absence of the October 2016 submissions, the applicant had an ample opportunity to present his case, which he did. 72 Accordingly, ground 3 is not made out.

6. Disposition 73 The application is dismissed with costs. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.