Ground 1 and 3 - procedural fairness
75 The applicant and the Minister accepted that the Assistant Minister, as the non-revocation decision-maker, owed a duty to afford procedural fairness to the applicant in the revocation review process, and that the common law principles of procedural fairness applied.
76 The principles for assessing the content of the common law obligation to afford procedural fairness were not in dispute in this proceeding. The key principles may be briefly summarised as follows. Procedural fairness is concerned with, and requires, a fair procedure, and not a fair outcome: SZBEL v Minister for Immigration [2006] HCA 63; 228 CLR 152 at [25] (the Court). The statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires, and the question whether a procedure was fair is necessarily tied to the particular facts of the case: SZBEL at [26]. The obligation to afford procedural fairness includes a general requirement to give a person who is the subject of a decision the opportunity to put information and submissions to the decision-maker in support of an outcome that supports his or her interests, including "to rebut or qualify … adverse material from other sources which is put before the decision maker": Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 at 591-2 (the Court), cited with evident approval in SZBEL at [29] and in BRF038 v Republic of Nauru [2017] HCA 44; 91 ALJR 1197 at [59]. An opportunity should be afforded to comment on any adverse information that is "credible, relevant and significant to the decision to be made": Kioa v West [1985] HCA 81; 159 CLR 550 at 629 (Brennan J). As those passages from Alphaone and Kioa v West suggest, the requirement to provide an opportunity to comment on adverse information is usually limited to adverse information that is before the decision-maker, such that it can be significant to the decision to be made. The Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 considered that general requirement at [83] -
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry.
77 The general requirement to put adverse information, like the obligation to afford procedural fairness more generally, must be assessed and applied in light of the legal and factual setting of the decision under review.
78 In the present case, the question whether the applicant was afforded procedural fairness must be considered in the setting of the statutory framework governing the revocation review process. The relevant provisions of the Migration Act and the Migration Regulations that make up that framework are referred to at [54] and [56] above. As stated above, the Minister drew attention to the comments of Tracey J in Picard at [40]-[42] about the content of the obligation to afford procedural fairness in that statutory setting. In that case, Tracey J observed that under s 501CA(3) of the Act, the Minister is obliged to give to a person whose visa has been cancelled the particulars of information relevant to the cancellation decision, and not information that might be relied upon in deciding whether to revoke the cancellation decision. Tracey J commented that the focus of that obligation was "somewhat strange" given that the cancellation decision would already have been made because the Minister (or a delegate) was satisfied of two objectively ascertainable facts that do not require regard to any discretionary considerations, being that the person had a substantial criminal record causing him or her to fail the character test, and that he or she was serving a sentence of imprisonment. Tracey J went further by suggesting that the drafter of the legislation may have mistakenly made the obligation to provide relevant information referable to the cancellation decision, rather than the revocation review decision. However, Tracey J also stated at [42] that -
It does not follow that, in all cases, the Minister will accord procedural fairness simply by complying with the requirements of s 501CA(3). Once the invitation to make representations is extended to a visa holder it falls to a visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made…It will not, normally, be necessary for the Minister to afford a further opportunity to the applicant to deal with particular issues. 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.
79 I respectfully agree with Tracey J's comment that it is somewhat strange that the Minister's obligation under s 501CA(3) is to provide information relevant to the cancellation decision, rather than the revocation review decision. However, the operation of the provision is clear. I also respectfully agree with Tracey J's statement that it does not follow that procedural fairness will be afforded in a revocation review process simply because the Minister has complied with the requirements of s 501CA(3) and, in particular, the requirement to provide the person whose visa has been cancelled with particulars of information relevant to the cancellation decision. The statutory scheme requires the Minister to notify the person whose visa has been cancelled of that cancellation decision, to provide particulars of information relevant to that cancellation decision, and to invite representations about revocation of that decision. That forms the start of the revocation review process, but not the end. Those requirements do not constitute a complete and exhaustive account of what may be required to ensure a fair and lawful revocation review process. Rather, the legislature may be taken to be aware of common law principles, including the obligation to afford procedural fairness, and to have intended for them to apply to the exercise of the statutory power to revoke the mandatory cancellation of a person's visa: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [12]-[15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). The statutory scheme does not seek to exclude or qualify the application of those common law principles to the revocation review process. So, as discussed above, the common law rules of procedural fairness apply, including the general requirement to grant the person whose visa has been cancelled the opportunity to ascertain the relevant issues and to comment on any adverse information that is credible, relevant and significant to the decision whether to revoke the cancellation of their visa.
80 On the particular facts of the present case, I consider that the applicant was afforded procedural fairness in the revocation review process. I have reached that conclusion by reference to the totality of the circumstances of the revocation review process, summarised above, and in light of the Assistant Minister having recorded his limited consideration of the further criminal charges pending against the applicant in his statement of reasons for making the non-revocation decision.
81 The applicant was put on notice that the pending charges may be taken into account by the person making the decision whether to revoke the cancellation of his visa, and he was provided with an opportunity to comment on all of the adverse information that was before the decision-maker. As detailed above, by a letter dated 30 August 2016 (see [21] above), the Department provided the applicant with a copy of the National Police Certificate and Dr Davis's report, which addressed the applicant's conduct that was the subject of the further pending charges, and advised him that the information contained in those documents, amongst others, "may be taken into account when making the decision whether to revoke the decision to cancel your visa". Further, by a letter dated 19 September 2016 (see [25] above), the Department brought the potential relevance of the pending charges to the applicant's attention, setting out each of the pending charges and noting that they had not yet been determined by the courts, and stated that information in relation to those charges was contained in the National Police Certificate and Dr Davis's report, which had already been provided to the applicant. The subsequent correspondence between the applicant's representative and the Department, summarised above, made clear that the applicant was on notice of the potential relevance of the pending charges. Further, it is not disputed that no additional material in relation to the pending charges was before the Assistant Minister for his consideration in making the non-revocation decision. The evidence of Ms Muscat, the officer of the Department with carriage of the applicant's revocation request, made clear that while the Department obtained a copy of the assault charge police brief during the revocation review process, it was not put before the Assistant Minister for his consideration in making the non-revocation decision. The applicant also made clear during this proceeding that he does not allege that the Assistant Minister did not truly make the non-revocation decision himself, in the sense of impermissibly deferring to anyone else in his fact finding or opinion formation in making the non-revocation decision.
82 It is apparent that in undertaking the revocation review process, the Department formed the view that it was only required to put to the applicant for comment the same material that it would put before the Assistant Minister, and it deliberately did not put the assault charge police brief to the applicant or before the Assistant Minister. That the Department formed that view is understandable. The general requirement to put adverse information, as it is framed in the leading cases of Kioa v West, Alphaone and SZSSJ in the passages referred to above, is limited to a requirement to put adverse information that is before the decision-maker, such that it can be significant to the decision to be made. That general requirement provides guidance to administrative decision-makers and persons who assist those decision-makers, such as the Assistant Minister and the officers of his Department in this case.
83 However, that general requirement is not a comprehensive statement of what will be required in all cases, and the question whether a procedure was fair is necessarily tied to the particular facts of the case. The applicant submitted that in the particular circumstances of this case, it was not sufficient that he was invited to comment on the same material that went before the decision-maker. The applicant submitted that he could not make an informed choice, in light of considerations about his privilege against self-incrimination in potential criminal proceedings, about what comment to make, if any, in relation to the pending charges, until he knew more about the material that Victoria Police proposed to use to prosecute him for those charges. That position is understandable and the applicant's representative conveyed that position to the Department during the revocation review process. However, the applicant's position did not have the effect of indefinitely extending the obligation to afford procedural fairness. In my view, adopting the language of the High Court in SZSSJ at [82], the revocation review process was "reasonable in the circumstances" and it did not "so constrain the opportunity of the [applicant] to propound his … case for a favourable exercise of the power to amount to a practical injustice." The applicant was afforded a sufficient opportunity to comment on the pending charges so as to discharge the obligation to afford procedural fairness.
84 The applicant's submission that outlined three suggested options to avoid procedural unfairness was circular, in that it started from the premise that the procedure was unfair. However, considering those alternative paths that could have been taken does provide a perspective from which to assess the fairness of the procedure that was in fact adopted. In respect of the first suggested option, it is not to the point to suggest that the Assistant Minister could have made the decision whether to revoke the cancellation of the applicant's visa without having regard to the pending charges. The Assistant Minister did have regard to the pending charges, and that suggestion goes to outcome, in the sense of the content of the decision, rather than procedure. In respect of the second suggested option, the applicant conceded that there was no specific obligation for the Department to notify him that it had obtained a copy of the assault charge police brief, or provide him with a copy of it. Dr Davis's report, which was provided to the applicant, referred to the pending assault charge and provided a detailed account of the applicant's alleged conduct, spanning two pages, and his comments including admissions in relation to that alleged conduct, made by the applicant during an interview with Dr Davis. The studied obscurity in the Department's correspondence, by which the Department avoided suggesting that it had a copy of the police brief, but also avoided denying it, did not assist to achieve the overarching objective to afford the applicant a fair procedure. However, it also did not result in procedural fairness being denied. Finally, in respect of the third suggested option, the applicant suggested that he should have been granted more time to obtain a copy of all of the police briefs before any decision whether to revoke the cancellation of his visa was made. Such an assessment about what amount of time was required to provide a fair procedure is necessarily a matter of fact and degree that involves evaluative judgment. As emphasised by the Minister, the applicant was given approximately six months between the issue of the pending charges being raised with the applicant and the matter being determined. The Department granted the applicant several extensions to the deadline to comment on the pending charges and then, after the deadline for the final extension lapsed, the Assistant Minister proceeded to make the non-revocation decision. The reasonableness of that period of time is informed by the statutory setting, which included the ordinary 28 day timeframe for a person to make representations seeking revocation under reg 2.52(2)(b) of the Migration Regulations. In my view, in all of the circumstances, the applicant was afforded sufficient time to comment on the pending charges, and the revocation review process was a fair procedure.
85 Further, even if I had found that there was a breach of the obligation to afford procedural fairness in the revocation review process in the manner alleged by the applicant, I do not consider that any such breach would have been material. The question for the Assistant Minister under s 501CA(4)(b)(ii) of the Act was whether there was "another reason" to revoke the cancellation of the applicant's visa, which carried sufficient weight or significance so as to satisfy the Assistant Minister that the cancellation of the applicant's visa "should be" revoked: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [64] (Colvin J). Assuming that a denial of procedural fairness was established, the applicant would bear the onus of proving as an ordinary question of fact that if procedural fairness had been afforded, that could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]-[46] (Bell, Gageler and Keane JJ). To this end, the applicant submitted that if the revocation review process had been fair, there was a realistic possibility that the Assistant Minister would have revoked the cancellation of his visa. That enquiry requires a hypothetical analysis of what the consequences of a fair procedure would have been, in circumstances where I have found that procedural fairness was afforded. Again, the applicant's suggested options for avoiding procedural unfairness provide a perspective from which to undertake the analysis. As stated above, the applicant's first suggested option is not to the point because it goes to outcome, rather than procedure. Under the applicant's second and third suggested options, even taking the applicant's case on what a fair procedure required at its highest, I do not consider that the applicant proved that there was a realistic possibility that the Assistant Minister would have revoked the cancellation of his visa. On the assumption that the applicant had a copy of the assault charge police brief during the revocation review process, the applicant has not established what representation he would have made in respect of the pending assault charge. Dr Davis's report, which was provided to the applicant for comment and which was before the Assistant Minister, referred to the pending assault charge and contained information in relation to the alleged assault that covered and went beyond the relevant information contained in the police brief. In relation to the pending solicitation charges, the police briefs for those charges are not before the Court. However, as with the assault charge, Dr Davis's report contained a detailed account of the applicant's alleged conduct, and his comments including admissions in relation to that alleged conduct, given during an interview with Dr Davis. Further, the applicant's representative did have access to one of the solicitation charge briefs during the revocation review process. Noting that the police briefs for those charges are not before the Court, I am not satisfied in all of the circumstances that having copies of the two additional briefs could have realistically resulted in a different outcome. It must be emphasised that with respect to all of the pending charges, the Assistant Minister's statement of reasons referred to the fact that those charges were "pending" and that they "have not yet been determined by a court". The Assistant Minister's reasons stated that he gave "limited weight" to the pending solicitation charges and that those pending charges arose from the same circumstances as the applicant's convictions for non-compliance with his supervision order. In relation to the pending assault charge, the Assistant Minister's reasons only went as far as noting that the alleged behaviour was consistent with some of the applicant's earlier violence-related conduct. That reasoning was limited to the fact that there were further charges pending against the applicant, and it was informed by Dr Davis's report that included a detailed account of the alleged conduct. Having regard to the extensive references to the circumstances of the charges in Dr Davis's report that was before the Assistant Minister, and the limited reliance by the Assistant Minister on the fact of the pending charges, which acknowledged that they had not been determined by a court, I am not persuaded that the applicant has established that there was a realistic possibility of a different outcome if, as he contends, the Minister was required to give him more time to pursue enquiries.