Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FCA 1080
•18 September 2024
FEDERAL COURT OF AUSTRALIA
Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080
Review of: Bainbridge and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 4184 File number(s): WAD 337 of 2023 Judgment of: MCDONALD J Date of judgment: 18 September 2024 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – non-revocation of visa cancellation – failure to satisfy character test – Tribunal bound by Ministerial Direction 99 issued under s 499 of the Migration Act 1958 (Cth) to consider best interests of minor child affected by decision – identification of minor children affected by decision – whether Tribunal erred by failing to determine whether revocation of visa cancellation was in best interests of applicant’s niece and nephew – whether error material
MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – non-revocation of visa cancellation – failure to satisfy character test –
where applicant self-represented – where applicant questioned about potential breaches of law during cross-examination – whether Tribunal should have informed applicant of privilege against self-incrimination – whether Tribunal failed to afford applicant procedural fairness – whether error materialLegislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 39, 62
Migration Act 1958 (Cth) ss 234, 499, 500, 501, 501CA
Cases cited: AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103
Downes v Minister for Home Affairs (2020) 168 ALD 498; [2020] FCA 54
Griffin v Sogelease Australia Ltd (2003) 57 NSWLR 257; [2003] NSWCA 158
Hamilton v Oades (1989) 166 CLR 486
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196; [2024] HCA 2
KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15; [2022] FCAFC 111
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Lucas v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1653
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480
Reid v Howard (1995) 184 CLR 1
RZMW v Minister for Home Affairs (2019) 168 ALD 176; [2019] FCA 1761
SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1; [2007] FCAFC 64
TPTN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 82
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15
Verrill v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 802
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 128 Date of hearing: 5 September 2024 Counsel for the Applicant: Dr J D Donnelly Solicitor for the Applicant: Zarifi Lawyers Counsel for the First Respondent: Ms C E McKay Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice. ORDERS
WAD 337 of 2023 BETWEEN: WILLIAM ROBERT BAINBRIDGE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
MCDONALD J
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue to the second respondent, quashing the decision dated 19 December 2023.
2.A writ of mandamus issue to the second respondent, requiring it to determine the applicant’s application for review of the decision of the delegate of the first respondent dated 25 September 2023 in accordance with the law.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCDONALD J:
INTRODUCTION
The applicant, William Bainbridge, is a citizen of New Zealand who arrived in Australia in 2006, just before his 20th birthday. Between 2013 and 2022, he was the holder of a Special Category (Class TY) (Subclass 444) visa. On 14 November 2022, that visa was cancelled by a delegate of the first respondent (Minister) under s 501(3A) of the Migration Act 1958 (Cth), on the basis that Mr Bainbridge failed the character test because of his substantial criminal record (due to his having been sentenced to a term of imprisonment of 12 months or more) and that he was, at that time, serving a sentence of imprisonment on a full-time basis in a custodial institution. On 25 September 2023, a delegate of the Minister decided not to revoke the cancellation of Mr Bainbridge’s visa.
Mr Bainbridge applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision and, on 19 December 2023, the Tribunal affirmed the decision not to revoke the visa cancellation decision. The aspects of the Tribunal’s decision and reasons that are relevant to each of Mr Bainbridge’s grounds of judicial review are discussed below in the context of considering each ground.
Mr Bainbridge seeks judicial review of the decision of the Tribunal on three grounds. First, he contends that the Tribunal failed to consider whether non-revocation of his visa would (or would not) be in the best interests of his niece and nephew, as children affected by the decision. Mr Bainbridge contends that the Tribunal consequently failed to comply with the requirements of Ministerial Direction 99, as it was bound to do by virtue of s 499(2A) of the Migration Act.
Secondly, Mr Bainbridge contends that the Tribunal denied him procedural fairness by failing to inform him of his privilege against self-incrimination in circumstances where he was cross-examined about allegations that he provided false and misleading information on two incoming passenger cards.
Thirdly, Mr Bainbridge alleges that the Tribunal denied him procedural fairness by failing to inform him of his privilege against self-incrimination in circumstances where he was questioned and gave oral evidence in relation to his history of illicit drug use in Australia.
For the reasons that follow, I would uphold the first and third grounds of judicial review. I would reject the second ground on the basis that, although the Tribunal should have ensured that Mr Bainbridge was aware of his privilege against self-incrimination, Mr Bainbridge has not established that the Tribunal’s failure to do so in relation to the provision of false and misleading information on passenger cards could realistically have made a difference to the decision.
GROUND 1: FAILURE TO CONSIDER THE INTERESTS OF THE MINOR CHILDREN J AND S
By his first ground of judicial review, Mr Bainbridge contends that the Tribunal failed to consider whether revoking the mandatory cancellation decision would be in the best interests of his nephew, J, and his niece, S. The Tribunal did consider the interests of Mr Bainbridge’s own children, A and M, as well as the interests of H, the daughter of his former partner, Ms M. Mr Bainbridge contends that there was material before the Tribunal that identified J and S as additional minor children who might be affected by the decision; that the Tribunal was therefore required to consider whether the revocation was in the best interests of J and S in accordance with cl 8.4 of Direction 99; and that the Tribunal failed to do so.
J and S are the children of Mr Bainbridge’s brother, MB, and were, at the time of the Tribunal’s decision, aged 16 and 14 respectively. MB, J and S have not lived in the same state as Mr Bainbridge since 2014 but would previously visit Mr Bainbridge in Western Australia once or twice a year. J and S currently live in Queensland with MB. In the proceedings before the Tribunal, MB provided a written statement and gave evidence at the hearing, including evidence regarding Mr Bainbridge’s relationship with J and S.
Relevant provisions in Direction 99
The Ministerial Direction which bound the Tribunal in the present case was Direction 99. Clause 6 of Direction 99 states that a decision-maker “must take into account the considerations identified in sections 8 and 9, where relevant to the decision”. Clause 8 of Direction 99 relevantly provides that, in making a decision under s 501CA(4) of the Migration Act, there are five considerations that are “primary considerations”. The fourth of those is “the best interests of minor children in Australia”. Clause 8.4 provides:
8.4 Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Two relevant observations may be made about cl 8.4. First, cl 8.4(1) refers to “a child affected by the decision”. It uses imperative language (“must”) and requires that decision-makers make a determination about whether non-revocation under s 501CA is, or is not, in the best interests of each child who meets that description. The question of whether cl 8.4 must be considered in relation to a particular child depends on whether that child is under the age of 18 years and is a child “affected by the decision”.
Secondly, cl 8.1(4)(a) states that “less weight” should ordinarily be given to the best interests of a child where (among other things) the relationship between the child and the non-citizen is “non-parental”. This confirms that the class of children who may be “affected by the decision” is not limited to children for whom the non-citizen is in a “parental” relationship.
The obligations of the Tribunal in assessing the best interests of minor children
The obligations of the Tribunal in relation to the requirement to consider the best interests of minor children in Australia were considered and explained by the High Court in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15 (Uelese).
The Ministerial Direction that applied to the Tribunal decision under consideration in Uelese was Direction 55. That Direction required the Tribunal “to consider the best interests of any minor children in Australia affected by the decision” and to have regard to factors including “[t]he likely effect that any separation from the person would have on the child”: Uelese at 211 [19]. It was not submitted that the terms of Direction 55 relating to considering the best interests of children differed in any material respect from the terms of Direction 99.
The applicant in Uelese had five children. The applicant’s case before the Tribunal focussed on the relationship with his partner and his three older children, the mother of whom was the applicant’s partner. The applicant’s two youngest children, born to a different mother during a period of separation from his partner, were aged four and five at the time of the Tribunal hearing. There was evidence before the Tribunal that those children existed and had visited the applicant while he was in prison: Uelese at 212 [22].
A factual difference between the present case and Uelese is that the children in Uelese whose interests it was said should have been considered were the applicant’s own children, whereas in the present case, J and S are not Mr Bainbridge’s own children but rather his nephew and niece. That consideration is relevant to the assessment of the weight a decision-maker might put on the best interests of a particular child, but it does not, by itself, lead to the conclusion that the child’s interests need not be considered. References in Uelese to “the appellant’s children” reflect the factual scenario that was presented in that case; the requirement to consider the best interests of children is not limited only to children of the visa holder or visa applicant. That would be inconsistent with the terms of both Direction 55 (applicable in Uelese) and Direction 99 (which bound the Tribunal in this case).
Direction 99 required the Tribunal to consider, as a primary consideration, the best interests of any minor children in Australia “affected by the decision”. As with the former Direction 55 considered in Uelese, that requirement “is imposed on decision-makers in terms which are not dependent on whether an applicant for review argues that those interests are relevant as part of his or her ‘case’”: Uelese at 221 [64].
It was said in Uelese (at 221 [64]) that the Tribunal was “obliged … to take into account the interests of any minor children of which it was aware in determining his application for review” (emphasis added). In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196; [2024] HCA 2 (Ismail), the High Court further explained (at 202 [23]):
The observation in Uelese that “the best interests of an applicant’s minor children in Australia are ‘relevant’ if such children exist and that fact is known to the [decision-maker]” is conditioned on the decision-maker in fact knowing of the existence of a minor child who might be affected by the decision.
The Court in Ismail later repeated (at 202 [24]) that “a ‘child affected by the decision’ is one whom the decision-maker in fact knows to exist as a minor child who might be affected by the decision”. On both occasions, the Court used the expression “might be affected by the decision”. I understand this to mean that the Tribunal is required to consider whether the decision is in the best interests of a particular child if the facts known to the Tribunal are such as to raise a realistic question as to whether the decision will affect that child.
The Tribunal is required to make a “determination” “about” whether cancellation of the visa (or revocation of the cancellation of the visa) is, or is not, in the best interests of the child. As was pointed out in Uelese (at 222 [67]):
There may … be cases where the evidence is such that the only determination which can be made in obedience to cl 9.3(1) of Direction 55 is that cancellation is neutral so far as the best interests of any minor child are concerned. In this regard, it is to be noted that cl 9.3(1) requires a “determination about whether cancellation is, or is not, in the best interests of the child” [emphasis added by the Court in Uelese]. Sometimes the best decision “about” whether cancellation is, or is not, in the best interests of the child may be that it is neither.
The Tribunal in the present case did not make a determination that the decision was neutral so far as the best interests of J and S were concerned. It did not make any determination about whether the decision not to revoke the decision was, or was not, in the interests of each of J and S. It was required to do so if, but only if, J and S were children who “might be affected by the decision” of the Tribunal.
The material before the Tribunal relating to J and S
The only references to J and S in the written material before the Tribunal were as follows.
First, in Mr Bainbridge’s Personal Circumstances Form, in response to the question “Number of nieces/nephews”, Mr Bainbridge answered “2”. They were not identified by name in the form and no information was provided in the form about their ages or the nature of their relationships (if any) with Mr Bainbridge. It is relevant to note that the Personal Circumstances Form also included a table in which Mr Bainbridge was asked to “List below all other minor children in your life (including grandchildren, nieces/nephews, foster children, etc)” (underlining in original). The only child identified in that part of the form was H, who was the child of Mr Bainbridge’s partner, Ms M. Had the Personal Circumstances Form been the only information before the Tribunal regarding J and S, the most obvious interpretation of it would have been that, although Mr Bainbridge had two nieces or nephews, they were not minor children “in his life” who would be “affected” by a decision not to revoke the cancellation of his visa.
Secondly, in a support letter to the Tribunal from Mr Bainbridge’s brother, MB, he said (among other things):
… I bring to your attention the profound impact William’s deportation would have not only on him but also on our entire family, including his three beloved children [H], [A], [M] and our community.
William, or Will as we fondly call him, has been a steadfast pillar of support for me and my family throughout the years. His kindness, love, and unwavering commitment have been invaluable, especially during my trials, tribulations, and triumphs. Will has been an integral part of my life, providing emotional and moral support. Moreover, he has been an exceptional uncle to my children, [J] and [S], who adore him deeply.
… Will’s absence would create an irreparable void in our family, affecting the emotional well-being of his children and all of us who love him dearly.
…
Australia has become our home, a place where we have built strong bonds with our community. Will has a lot of family and friends here who care deeply for him …
… We implore the Administrative Appeals Tribunal to recognize the transformative journey he has undertaken and allow him the opportunity to rebuild his life with his family in the place he calls home—Australia. Please consider the well-being of his children, our family, and our community as you make this decision.
…
(Emphasis added.)
As the Minister submitted, the information regarding J and S in the written material was quite general and vague. The clearest reference to a relationship with Mr Bainbridge and any possible effect on them of the decision was in the statement, “he has been an exceptional uncle to my children, [J] and [S], who adore him deeply”. It may be doubted whether the references in the written material, taken alone, would have sufficed to make the Tribunal “aware” of J and S as children affected by the decision. It may be noted, however, that even the limited information in MB’s letter went beyond that which was considered in Ismail which, as the High Court found (at 202 [23]), “did not identify MC as a minor child or any relationship between the plaintiff and MC”.
At the hearing before the Tribunal, MB gave evidence via audio-link. Under cross-examination by counsel for the Minister, he testified that he had two children, J (aged 16) and S (aged 14). MB had last seen Mr Bainbridge in person two or three years before the Tribunal hearing. They had not kept in much contact since then until Mr Bainbridge “popped up on Messenger” around eight months before the Tribunal hearing. They had been in contact on Messenger for the past eight months. No other evidence of Mr Bainbridge’s relationship with J or S was elicited in cross-examination by counsel for the Minister.
The Tribunal then questioned MB. Insofar as it related to J and S, the questioning from the Tribunal and MB’s answers were as follows:
Q:When, in your statement, you refer to [J] and [S], it’d be fair to say, wouldn’t it, that they have had not much contact with your brother, William?
A:No, we’re always talking about William and he’s always been on the phone when they’re talking to him. And when he was mum’s and dad’s, we visited a lot. Obviously, because my mother and father are in WA, so we would – we were making trips back to WA all the time.
Q:But you’ve never lived – well, after 2014, you and your children have not lived in the same location as William?
A:No.
Q:So how often would you come back to visit your parents and, when you did that, see William?
A:Look, it was at least twice a year we would come back. I felt like we were seeing him a lot more than what we – maybe what it sounds like on paper.
Q:Did William ever come and visit you and [J] and [S] in Queensland or Victoria?
A:No.
Q:In your letter, you make the following comment. You say, ‘Will’s absence would create an irreparable void in our family, affecting the emotional wellbeing of his children and all of us who love him dearly.’ Can you perhaps expand on that, because it’d be fair to say, wouldn’t it, that William has played very minimal direct role in your children’s lives?
A:I wouldn’t say that. Yes, maybe being absent quite a bit there in the later years. He was – he was there the whole time when we were in WA. So that’s 10 years he was there. Well, not – sorry, not the 10 years, because he’s come a little bit later. I shouldn’t say the 10 years, but he was a big part of the kids’ lives, so.
Q:But for the last 10 years, he hasn’t been. Would that be a fair assessment?
A:The last 10 years, look, off and on, yes. Yes, fair enough, three or four years. Probably not as much as we’d like.
Q:I think, isn’t the case, other than the visits, your children haven’t seen the applicant?
A:No, no. Besides the visits, no.
This evidence was not contradicted and MB was not further cross-examined about it.
In relation to the evidence given by MB, the Minister submitted that his evidence included “an acceptance that the applicant had not been ‘a big part’ of the children’s lives for the last 10 years”. MB’s evidence is somewhat ambiguous in that regard. I read his evidence as accepting that characterisation – the applicant not being a “big part” of the children’s lives – as “fair enough” in relation to the last “three or four years” while contrasting that with the earlier part of the last ten years; MB appears to have maintained that Mr Bainbridge had played a significant role in the lives of J and S, albeit “on and off”, during that period. Although Mr Bainbridge himself did not positively advance a case to the Tribunal that the best interests of J and S provided a reason why the visa cancellation decision should be revoked, it is apparent that MB, through his evidence, tried to emphasise the significance of Mr Bainbridge’s relationship with his children.
The Tribunal’s reasons in relation to J and S
The Tribunal’s consideration of the fourth primary consideration, the best interests of minor children in Australia affected by the decision, appears at [84]-[93] of its reasons. At [84], the Tribunal set out paragraph 8.4 of Direction 99. At [85] the Tribunal said:
The Applicant’s submissions identify his two children and H, the daughter of Ms [M], as being relevant to this consideration. Similarly, in the Personal Circumstances Form provided to the Department, the Applicant identified those three children as relevant to this consideration. While that [sic] Applicant identified that he had two nieces/nephews, neither his submissions in these proceedings nor the Personal Circumstances Form identified his brother [M]’s two children, or any other children as being relevant to this consideration.
The “two nieces/nephews” referred to in this paragraph were J (Mr Bainbridge’s nephew) and S (his niece), both of whom were children of Mr Bainbridge’s brother MB.
At [86], the Tribunal summarised submissions made by Mr Bainbridge relevant to his own two children and H. At [87], the Tribunal summarised the submissions of the Minister with respect to those three children. At [88]-[91], the Tribunal identified aspects of the evidence relating to those three children and Mr Bainbridge’s relationship with them. At [92], the Tribunal considered the factors identified in paragraph 8.4(4) of Direction 99 with respect to those three children. At [93], the Tribunal stated its conclusion in relation to the fourth primary consideration in the following terms:
I find that the best interests of the Applicant’s two natural children and H, would be served by the Applicant being allowed to remain in Australia. However, given that the relationship with H is non-parental, given that others presently fulfil the parental role for the three children and given the question over whether the Applicant would play a positive role in the lives of all three children, only moderate weight should be given to this consideration.
The Tribunal’s reasoning at [85] effectively disregarded J and S as irrelevant to its task, on the basis that Mr Bainbridge had not “identified” them “as being relevant to” the fourth primary consideration. The better reading of the Tribunal’s reasons at [85] is not that it found that J and S would not be “affected”, or that the material before it (including the evidence of MB) was too scant to allow it to determine whether cancellation was, or was not, in the best interests of J and S. That is because, first, the Tribunal dealt with J and S only in its introductory paragraph, the evident purpose of which was to identify which children it would and would not consider; and, secondly, the Tribunal did not refer to the evidence of MB in relation to J and S at all in this part of its reasons, which is what one would expect if the Tribunal was considering how (if at all) the interests of J and S would be affected by the decision.
The Tribunal had knowledge of J and S and was required to consider their interests
The fact that an applicant has not identified a particular child as one who will be “affected by the decision” may, in some cases, suggest that that child could not be so affected; or it may contribute to a finding by the Tribunal that the child’s interests would not be adversely affected.
However, as Uelese demonstrates, the failure of an applicant for review – especially an unrepresented applicant – to advance the interests of a particular child as part of their “case” is not conclusive of whether the Tribunal has an obligation to consider the best interests of that child: see also Downes v Minister for Home Affairs (2020) 168 ALD 498; [2020] FCA 54 at 509-10 [53].
A mere reference in the material to the bare existence of J and S and the fact that they were the nephew and niece, respectively, of Mr Bainbridge would not have been a sufficient basis to infer that they were children who would be “affected by the decision”: Ismail at 202 [24]. Had the evidence before the Tribunal gone no further than that, Direction 99 would not have obliged the Tribunal to make a determination about whether the revocation of the cancellation decision was in J and S’s best interests. But if there is information before the Tribunal that is capable of supporting the view that a particular child might be affected by the decision, the proper discharge of the Tribunal’s function requires it at least to consider whether those children would, in fact, be so affected.
In this case, the evidence before the Tribunal did contain more information about J and S. In particular, MB’s evidence identified J and S as children who had a relationship with Mr Bainbridge, and as children who (his evidence suggested) would be affected by the decision not to revoke the cancellation of his visa. His evidence was to the effect that, while they had not had a relationship with him in the last three to four years, they had enjoyed such a relationship prior to Mr Bainbridge’s incarceration. The situation is similar to that described by Jackson J in RZMW v Minister for Home Affairs (2019) 168 ALD 176; [2019] FCA 1761 at 183 [33]:
But the material before the Tribunal about the nature of the relationship when the applicant was not incarcerated required the Tribunal to treat S as a relevant child and for the Tribunal to make a determination about whether revocation was, or was not, in her best interests. If, after conducting that exercise, the Tribunal determined that the current nature and strength of the relationship meant that her interests would not be adversely affected if the applicant were removed to Liberia, then so be it. But the Tribunal did not consider the question at all.
The consequence of MB’s evidence was that the tribunal was “aware” of, or had “knowledge” of, J and S as children whose interests “might” be affected by the decision: Uelese at 221 [64]; Ismail at 202 [23]. The evidence was not especially detailed or strong, but it did disclose the existence of J and S and the fact of a relationship with Mr Bainbridge which MB, at least, claimed was important to J and S: cf KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15; [2022] FCAFC 111 at 26 [44].
For these reasons, the material before the Tribunal established that each of J and S was a child who “might” be “affected by the decision” in the relevant sense.
The Minister advanced a submission that s 500(6H) of the Migration Act prohibited the Tribunal from considering whether it was in the best interests of J and S for the visa cancellation decision to be revoked. The Minister submitted that the references in the written material to J and S “did not record in writing the substance of what [MB] would say when he gave oral testimony to the Tribunal”. It was submitted that “no written statement containing the substance of what [MB] would say when he gave oral testimony to the Tribunal had been provided to the Minister 2 days beforehand, as s 500(6H) requires”.
Section 500(6H) provides:
If:
(a)an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b)the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
However, the statutory concept of “information presented orally in support of a person’s case” does not include responsive answers given by a witness under cross-examination by counsel for the Minister: Uelese at 217 [43]-[45], 219-20 [54]-[59] (French CJ, Kiefel, Bell and Keane JJ). “[T]he the preclusory effect of s 500(6H) is confined to information presented by or on behalf of the applicant for review in support of his or her case”: Uelese at 220 [59].
Mr Bainbridge did not adduce, or seek to adduce, oral evidence from MB before the Tribunal which went beyond what was recorded in writing. All of MB’s substantive evidence regarding J and S and their relationship with Mr Bainbridge was given in response to questioning by the Tribunal. Section 500(6H) therefore did not preclude the Tribunal having regard to that evidence, irrespective of whether the content of MB’s oral evidence was reflected in the written material before the Tribunal. I reject the Minister’s submission based on s 500(6H).
Materiality
The Minister submitted that, if the Tribunal did err by failing to have regard to the interests of J and S, any such error was not material “in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”, and did not, therefore, constitute jurisdictional error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 (LPDT) at 614 [7], 615 [14]. “[I]t is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with ‘as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined’”: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at 103 [32] (Kiefel CJ, Keane and Gleeson JJ). In assessing whether an error could have made a difference to the decision, the Court “must be careful not to assume the function of the decision-maker”: LPDT at 616 [15].
This is a case where the Tribunal’s error is perhaps close to the borderline of the threshold of materiality. However, for the reasons that follow, I accept Mr Bainbridge’s submission that the Tribunal’s failure to consider the interests of J and S was material in the relevant sense.
The factual issue of whether J’s and S’s interests would in fact be affected and, if so, what weight should be given to that consideration, was a matter for the Tribunal. While it would have been open for the Tribunal to decide that the non-revocation of the cancellation of Mr Bainbridge’s visa was neutral as regards the interests of J and S, or that the information about J and S was insufficient to enable the Tribunal to make a finding as to whether their interests weighed in favour of revoking the visa cancellation decision, I do not think it can be said that it was inevitable that the Tribunal would have done so.
Similarly, the Tribunal might potentially have taken the view that, even taking into account the interests of J and S, it should not attribute any additional weight to the “best interests of minor children”, given that it was already taking into account the interests of Mr Bainbridge’s own biological children and the other child of his partner, Ms M, who were closer to him and likely to be more seriously affected by the cancellation of his visa than either J or S. But again, that is a matter going to the merits and is properly a matter for the Tribunal. It is not inevitable that the Tribunal would have given no greater weight overall to the interests of minor children if it had found that there were additional minor children whose interests would be affected by the decision.
Once it is accepted that, had the Tribunal considered the interests of J and S, it could have given greater weight to the interests of minor children as a matter in favour of revoking the visa cancellation decision, it cannot be said that the failure to consider the best interests of J and S was immaterial. The conclusion reached by the Tribunal was the result of weighing competing considerations. The Tribunal did not express how finely balanced it considered its conclusion to be and it is possible that any additional weight given to a factor in favour of revocation could have tipped the balance or led to a different overall assessment.
Conclusion in relation to ground 1
For these reasons, I would uphold the first ground of judicial review.
GROUND 2: PROCEDURAL FAIRNESS, PRIVILEGE AGAINST SELF-INCRIMINATION, AND PASSENGER CARDS
Mr Bainbridge submits that the Tribunal denied him procedural fairness by failing to inform him of his privilege against self-incrimination, in circumstances where he was unrepresented at the hearing and he was asked questions in cross-examination about the answers he had provided on two incoming passenger cards in 2012 and 2013. He points out that s 234 of the Migration Act relevantly provides:
False documents and false or misleading information etc. relating to non-citizens
(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non - citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non - citizen (including that person himself or herself) to remain in Australia:
(a)present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b)make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c)deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
…
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
It follows that evidence that a person filled in or furnished a passenger card containing information that was false or misleading is evidence tending to incriminate the person in the commission of an offence.
The evidence before the Tribunal in relation to passenger cards
Photocopies of two passenger cards relating to Mr Bainbridge, one dated 2 June 2012 and one dated 24 May 2013, formed Attachment M to the material before the Minister’s delegate. Each of the passenger cards included the question, “If you are NOT an Australian citizen: … Do you have any criminal conviction/s?”
The delegate’s reasons (at [29]-[30]) included the following passages relating to the passenger cards:
Furthermore, I find that Mr BAINBRIDGE had provided false or misleading information to the Department, when he failed [to] disclose his prior criminal offending on his most recent incoming passenger cards dated 24 May 2013 and 2 June 2012 Attachment M.
Mr BAINBRIDGE explained that his niece passed away unexpectedly on 15 May 2012 and he and his family had to rush back to New Zealand with her body for burial. Mr BAINBRIDGE contended that his ‘headspace wasn’t good at the time’ so he failed to provide the correct information of his criminal convictions on the incoming passenger card. I am prepared to accept that he was grieving and had overlooked the declaration to the Department on his arrival on 2 June 2012, after the funeral; but it does not explain why he did not declare his criminal offending on his most recent arrival of 24 May 2013. I find that Mr BAINBRIDGE had intentionally provided incorrect information to the Department to contravene the immigration system which is designed to protect the border. I find Mr BAINBRIDGE’s failure to declare his convictions on his incoming passenger card adds to the seriousness of his conduct overall.
During the hearing before the Tribunal, Mr Bainbridge was cross-examined by counsel for the Minister in relation to the topic of whether he had provided false and misleading information on the passenger cards. The cross-examination on this topic was as follows:
Q:… You’ve completed two incoming passenger cards. Is that correct?
A:Yes, I have.
Q:You’ve provided false and misleading information on those cards? Would you accept that?
A:Yes.
Q:At page 80 - - -?
A:Well, yes.
Q:- - - of the bundle, we have your incoming passenger card dated 2 June 2012. So this is at the G document bundle?
A:Yes.
Q:That’s your name and signature on the card there?
A:Yes.
Q:The question you were asked in June 2012 was, ‘Do you have’ – sorry, ‘By signing that form, you declare the information on it was true and correct.’ Is that accurate?
A:Yes.
Q:You were asked, ‘Do you have any criminal convictions?’ You’ve marked ‘no’ on the form. Is that correct so far?
A:(No audible response.)
Q:In fact, in 2012, you had 19 convictions at that time. Would you accept that?
A:Yes.
Q:If I can take you to page 79 of the G documents. Again, if you can just confirm for the tribunal that’s your name and signature on the passenger card dated 20 May 2013?
A:It is.
Q:‘By signing that form, you declare the information was true and correct.’ Is that correct?
A:Yes.
Q:At that time, you also had 19 convictions, didn’t you?
A:Yes, I think I did.
Q:Sorry, if I can just make sure I get those numbers correct. Yes. Yes, at 2012 and 2013. In both times. Okay. Jumping back to the card in 2012, you completed that form on 2 June 2012, and just a few months prior to that, you were convicted of four offences on 16 March 2012, weren’t you?
A:In New Zealand?
Q:No, in Australia?
A:In Australia.
Q:If I can take you to page – if I can jump back to that page 212 of the history of court?
A:Yes.
Q:And specifically, page 216 and 215. So on 16 March 2012, you were convicted of those four offences. Three months later, you fill in the incoming passenger card and you mark ‘no’. Is that an accurate description of the timeline there?
A:That is.
Q:At the time you fill in that form - - -?
A:Yes.
Q:- - - you knew you’d had those convictions, didn’t you?
A:At the time I filled in those forms?
Q:Yes?
A:I wasn’t thinking about convictions at the time. I had just buried my niece and I just wanted to get home, so I wasn’t thinking about convictions or anything like that. I was – I was grieving when I filled those out, so - - -
Q:Your niece passed away in 2012? Is that correct?
A:Yes.
In submissions before the Tribunal, the Minister’s counsel submitted that Mr Bainbridge had accepted in his evidence to the Tribunal that he had “provided false and misleading information on his incoming passenger card”. That submission was made in connection with a submission that Mr Bainbridge’s offending should be viewed very seriously. No other reference to the passenger cards was made in the submissions to the Tribunal.
In its reasons at [40], the Tribunal identified matters to which it had regard in “assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 99”. The Tribunal made the following finding at [40(e)]:
[T]he Applicant has provided false information to the Department on two occasions, on 2 June 2012 and 24 May 2013. On each occasion the Applicant had signed a declaration on an incoming passenger card that he had no criminal convictions. Both declarations were false. At the time that he made the declarations on the incoming passenger cards in June 2012 and May 2013, the Applicant had 19 criminal convictions. The Applicant sought to explain the false statement in 2012 as him grieving for his niece who had, at that time, recently passed away. Even if one were to accept that as an explanation for providing a false declaration on the June 2012 incoming passenger card, it cannot be taken as an explanation for making a similar false statement on the May 2013 passenger card. The fact is that the Applicant has provided false information to the Department on two occasions.
No evidence was led to the effect that Mr Bainbridge was unaware of the privilege against self-incrimination or that, had he been made aware of the privilege, he would not have answered questions about the passenger cards, or would have answered them any differently.
Procedural fairness and the privilege against self-incrimination
The rules of procedural fairness apply in connection with the conduct of a review by the Tribunal under s 500 of the Migration Act: see Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), s 39.
The privilege against self-incrimination is a “basic and substantive common law right”: X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at 136-7 [104] (Hayne and Bell JJ; Keifel J agreeing); Reid v Howard (1995) 184 CLR 1 at 11 (Toohey, Gaudron, McHugh and Gummow JJ). It is also reflected in the terms of s 62(4) of the AAT Act. The privilege applies not only to evidence that amounts to a complete and clear confession to a particular offence but to evidence that “may tend to incriminate the person asked” or may tend to prove that a person has committed an offence: see, eg, Hamilton v Oades (1989) 166 CLR 486 at 494 (Mason CJ); Evidence Act 1995 (Cth), s 128.
In Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 (Promsopa), Allsop CJ accepted that a tribunal may deny an unrepresented party procedural fairness if its questioning strays into matters about which the unrepresented party could invoke the privilege against self-incrimination without warning the person (at [37]). Chief Justice Allsop also rejected submissions advanced by the Minister in Promsopa that the failure of the Tribunal to advise the applicant of her right to invoke the privilege against self-incrimination occasioned her no practical injustice and did not amount to jurisdictional error (at [42]). Those submissions were rejected on the basis that, in that case, the Tribunal’s questioning of the applicant, and the answers which that questioning elicited from her, “allowed the Tribunal to conclude” that she had committed what the Tribunal found to be a serious breach of the law.
Chief Justice Allsop’s reasoning in Promsopa was accepted and applied by Meagher J in Lucas v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1653 at [50]-[51].
In Verrill v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 802 (Verrill), Thawley J made the following relevant observations (at [35]-[38]), with which I agree:
Jurisdictional error (a breach of procedural fairness) may be established where a Tribunal, or a cross-examiner, asks a question in circumstances which give rise to a right to refuse to answer on the basis of the privilege against self-incrimination and a sufficient explanation of the existence of the right to refuse to answer is not given.
A careful analysis of the facts in any given case might be required to assess whether the privilege actually arises. Questioning about events which have been the subject of charges and convictions might not give rise to the possibility of self-incrimination, such that the right to refuse to answer the question does not arise – see: Sorby v Commonwealth of Australia [1983] HCA 10; 152 CLR 280 at 290 (Gibbs CJ), citing In re Genese; Ex parte Gilbert (1886) 3 Morr 223.
It is also relevant to inquire whether the evidence is something more than what was already known on the available material. A breach of procedural fairness does not give rise to jurisdictional error unless the breach is material: Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 at [1]
In cases such as the present, which necessarily involve an examination of past criminal conduct and the likelihood of such conduct recurring, it would generally be desirable to inform an unrepresented litigant of the existence of the privilege.
Justice Thawley did not decide whether there had been a breach of procedural fairness in Verrill.
Procedural fairness in this case
In the present case, the questioning of Mr Bainbridge about the provision of false and misleading information on his incoming passenger cards was apt to lead him to provide answers that would tend to incriminate him in connection with the commission, on two separate occasions, of criminal offences against s 234 of the Migration Act.
The existence of the privilege did not depend upon a prediction about the likelihood that Mr Bainbridge would in fact be charged with an offence: cf Griffin v Sogelease Australia Ltd (2003) 57 NSWLR 257; [2003] NSWCA 158 at 266 [38] (Tobias JA; Meagher and McColl JJA agreeing). And, from the point of view of the Tribunal’s function, the potential procedural unfairness to Mr Bainbridge lay in his proceeding on the understanding that he was required to answer particular questions asked of him by the Minister’s counsel in cross-examination when, in fact, despite having subjected himself generally to questioning on oath, he had a right to decline to answer those particular questions.
In circumstances where Mr Bainbridge was unrepresented and where it is not apparent that the Tribunal had any basis to believe that he was aware of or understood the privilege, the Tribunal should have informed him of his rights. That is, the Tribunal should have ensured that it was explained to Mr Bainbridge that he had the right to decline to answer questions on the ground that the answers would tend to incriminate him and that, if he did answer the questions, any admissions against his interests could potentially be used against him: see SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1; [2007] FCAFC 64 at 16 [77] (Lander J).
I note that Allsop CJ in Promsopa stated (at [37]) that a failure by the Tribunal to inform an unrepresented applicant of their right to self-incrimination may amount to a denial of procedural fairness. The authorities have not explored whether that will always be so in every case where an unrepresented person is asked questions the answers to which may incriminate them, or in what particular circumstances the failure to warn a person of their rights will or will not amount to a denial of procedural fairness.
The precise relationship between denial of procedural fairness and materiality in a case like the present is somewhat unclear. In Nathanson, Kiefel CJ, Keane and Gleeson JJ said (at 103 [33]):
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration … .
(Citation omitted.)
However, the kind of denial of procedural fairness that has been held to arise when a person is not informed of their privilege against self-incrimination is somewhat atypical. In such a case, the person has been deprived of an informed opportunity to exercise their right to decline to answer certain questions. The opportunity denied is not an opportunity to present evidence or make submissions on an issue that required consideration; if anything, the person is likely to have given additional evidence that they might not have given had they been made aware of the privilege (and, in some cases, this may give rise to a need to address that additional evidence in additional submissions). On one view, the denial of that opportunity itself should be characterised as amounting to a denial of procedural fairness, with the question of the materiality of that denial to the decision under review being a distinct question. On the other hand, although there is a broader sense in which it can be said that a person has been treated unfairly if they have been denied the practical opportunity to exercise their legal rights, it might be thought that there will only be a denial of procedural fairness in relation to the decision under review if it is shown that the denial of that right could possibly have affected the decision. On the latter view, the question of whether there has been a denial of procedural fairness at all may effectively be the same as the question of whether what occurred was “material”. It is unnecessary to resolve this question because, on either approach, the second ground of judicial review can succeed only if the failure of the Tribunal to inform Mr Bainbridge of his privilege against self-incrimination could have made a difference to the Tribunal’s decision.
Materiality
I have referred to the relevant principles applicable to the assessment of materiality at [43] above.
I accept that the Tribunal’s assessment of the seriousness of Mr Bainbridge’s conduct was in fact affected by its consideration of his conduct in relation to the passenger cards. I accept that, had the Tribunal not taken that conduct into account at all, or had the Tribunal not proceeded on the basis that the conduct was established to have occurred, that could have made a difference to its decision in the sense relevant to materiality.
However, for the reasons that follow, I do not accept that the failure of the Tribunal to explain the privilege against self-incrimination to Mr Bainbridge could realistically have altered its conclusion in relation to the passenger cards: for that reason, the Tribunal’s failure was immaterial to its decision.
The Tribunal already had before it copies of the two passenger cards. The information in the passenger cards about Mr Bainbridge’s criminal convictions was inconsistent with the undisputed evidence before the Tribunal which established that, at the time of submitting each of the cards, Mr Bainbridge in fact had 19 criminal convictions. The Tribunal’s finding that the passenger cards contained false and misleading information was inevitable.
The person who had completed the passenger cards had included personal information about Mr Bainbridge including his date of birth, passport number, address, email address and telephone number. These details were consistent across the two passenger cards. The address was the residential address of Mr Bainbridge which appeared in multiple places on many other documents in the evidence before the Tribunal. The signatures on the two cards matched each other, and matched Mr Bainbridge’s signature as it appeared on other documents in evidence before the Tribunal. The natural and, in the absence of evidence to the contrary, inevitable, inference was that Mr Bainbridge had personally completed each of the two passenger cards.
In the absence of any evidence to the contrary, it was inevitable that the Tribunal would draw the inference not only that Mr Bainbridge had personally completed the two passenger cards but also that he must have been aware that he had multiple criminal convictions and that the answers he provided were inconsistent with the true position. The pre-hearing written submissions of the Minister and the cross-examination of Mr Bainbridge by the Minister’s counsel demonstrate that the passenger cards were an issue on which the Minister’s counsel always intended to rely. So, although the submission in fact made by the Minister about this issue referred to the admissions made by Mr Bainbridge in cross-examination, it can safely be concluded that the Minister’s counsel would have asked the Tribunal to make adverse findings about the provision of false and misleading information in the passenger cards in any event.
I note that the issue of providing false or misleading information on the two passenger cards had also previously been raised with Mr Bainbridge by the delegate. In his response to the delegate, he had admitted that the 2 June 2012 passenger card contained false information and, and least implicitly, that he had provided that information. That submission was before the Tribunal.
If the Tribunal had informed Mr Bainbridge that he was not required to answer the two questions about the passenger cards, as Mr Bainbridge submits it was obliged to do in order to provide him with procedural fairness, then there are two, or possibly three, things that could have occurred.
First, Mr Bainbridge might have answered the questions as he did anyway, accepting that he had completed the passenger cards and acknowledging the obvious fact that he had provided false and misleading information. He might well have done so both because that was the true position and because to refuse to answer questions or to deny those facts might have caused him to appear unreasonable or disingenuous.
Secondly, Mr Bainbridge might have declined to answer the questions, relying on his privilege against self-incrimination. Had that happened, the Tribunal would inevitably have accepted the obvious and uncontradicted inferences arising from the objective evidence before it, that Mr Bainbridge had completed both passenger cards and, in doing so, had provided false or misleading evidence. The Tribunal was required, by cl 8.1.1(f) of Direction 99, to consider “whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending”. In my view it is quite unrealistic to suppose that the Tribunal might not have reached the conclusion that Mr Bainbridge had done so, even in the absence of his admissions. Further, I find that the Tribunal would inevitably have drawn that conclusion even if it had not had regard to Mr Bainbridge’s submission to the delegate.
Mr Bainbridge submitted that the concept of “false and misleading” information meant information that was knowingly or intentionally false or misleading. There might be some cases where it is possible that a person completing a passenger card might overlook the fact that they had been convicted of an offence. But Mr Bainbridge had a large number of convictions for a range of different offences, imposed by courts on several distinct occasions; it is implausible that he genuinely believed, at the time of completing the passenger cards, that he had never been convicted of any criminal offence. It is inevitable that the Tribunal would have concluded not merely that the statement on the passenger cards was incorrect but that Mr Bainbridge had knowingly provided false and misleading information.
A third theoretical, though remote, possibility is that, had Mr Bainbridge been informed of his privilege against self-incrimination, he could have chosen to answer the questions but could have given evidence that he did not complete the passenger cards. I think that possibility can be disregarded as unrealistic. In any event, again, even had he done so, I do not consider that there is any reasonable possibility that the Tribunal would have made a different finding nor that a denial on oath of the obvious facts in relation to the passenger cards could have assisted Mr Bainbridge before the Tribunal.
For these reasons, I do not consider that there is a realistic possibility that the Tribunal’s decision could have been different as a matter of reasonable conjecture within the parameters set by the historical facts, had the Tribunal informed Mr Bainbridge of his privilege against self-incrimination in connection with the passenger cards.
Conclusion in relation to ground 2
For these reasons, the second ground of judicial review is not established.
GROUND 3: PROCEDURAL FAIRNESS, PRIVILEGE AGAINST SELF-INCRIMINATION AND DRUG USE
Mr Bainbridge submits that the Tribunal denied him procedural fairness by failing to warn him of his privilege against self-incrimination in connection with the answers he gave in response to questioning about his use of cannabis and methylamphetamine. In each jurisdiction of Australia, the possession of cannabis and the possession of methylamphetamine are criminal offences. Evidence of a person’s history of addiction to or use of those drugs is therefore evidence of a kind that has a tendency to incriminate the person in the commission of one or more criminal offences.
The evidential material before the Tribunal relating to Mr Bainbridge’s drug use
The evidential material before the Tribunal included a copy of a criminal history check in relation to Mr Bainbridge, records of various Western Australian Magistrates Courts and statements of material facts recorded by WA Police in relation to various offences. Those documents identified that Mr Bainbridge had committed (among other offences) two offences (in 2016 and 2018) of possessing drug paraphernalia in which there was present a drug (in one case cannabis and in one case cannabis and amphetamine), two offences (in 2018 and 2021) of possessing a prohibited drug (in one case cannabis, in the other methylamphetamine), and three offences (in 2018, 2020 and 2021) of driving with a prescribed illicit drug present in his oral fluid (in each case methylamphetamine). Mr Bainbridge’s criminal record also included four offences of stealing and four offences of burglary in the period between 2020 and 2022.
The Tribunal also had before it copies of the sentencing remarks for sentences imposed on Mr Bainbridge on 11 March 2020, 24 March 2021 and 23 May 2022. The most relevant of those are the remarks of 11 March 2020 relating to several offences including burglary and other offences, in which the sentencing Magistrate said:
I accept your position that at the time you were subject to a – well, you were operating under a drug addiction to methylamphetamine. That’s not unlike any other person that comes before the court for a similar type of charge. And it’s accepted by me, of course, from submissions of Mr Hunter that this is really a serious escalation in your offending behaviour, predicated of course by the – on the basis that you were, at the time, addicted to methylamphetamine.
…
You are a man who clearly was struggling with a methylamphetamine addiction.
Mr Bainbridge’s former partner, Ms M, gave evidence before the Tribunal via audio-link. She was cross-examined by counsel for the Minister. The cross-examination included the following regarding Mr Bainbridge’s drug use:
Q:What’s your understanding of his criminal offences? Is it just the burglary and stealing or is there anything else you’re aware of?
A:No, I think it went more deeper into that with, like, you know, the reason why he was stealing and stuff was he had a bad drug habit. So I wouldn’t – and I believe from hearing from him and seeing his, like, kids on video time that, you know, he has learnt his lesson, I believe, I truly believe. And I probably know William quite well, so - - -
Q:You said ‘a bad drug habit’. When did you become aware of the bad drug habit?
A:Probably when I first met him, but it wasn’t as – yes, was not – it was just a recreational thing at first, but then it got – when we broke up, that’s when it got bad. Well, from my knowledge anyway. I don’t – I – yes, I believe he went downhill from, yes, when we broke up.
Q:Are you aware of what drugs he was using?
A:Yes, yes.
Q:What was that?
A:Methamphetamine.
Q:Anything else?
A:No, not that I know of, no.
Q:Are you aware of how often he would use?
A:Not to – no, not to my – not after we broke up, no. Used to always being – like, being a real good dad, though. Like, he’s always been there for his kids and that’s, I think, the biggest impact that it’s had, like, on all of us, not just him, like, and just – yes.
Q:Sorry, you said you don’t know how often he would use after you broke up?
A:Yes.
Later Ms M was asked whether she was aware of the frequency of Mr Bainbridge’s drug use during the period of time when they were in a relationship, to which she responded, “I was aware that he did do it, but, yes, not as bad as he got got [sic] doing it, I guess.”
Mr Bainbridge’s brother, MB, gave evidence that he was aware that Mr Bainbridge had been in gaol. He was asked whether he knew why he was in gaol, to which MB responded that he was not aware of the actual charges, but had assumed that it was “for the same thing” as the first time he had been to gaol, namely “theft or drug-related” offences. MB’s evidence included the following regarding Mr Bainbridge’s drug use:
Q:You say ‘drug-related’. Do you understand William to be somebody who uses drugs?
A:He has in – has in the past.
Q:What has he used?
A:Yes, marijuana and methamphetamine.
Q:How did you come to know this? Was that through your mother?
A:Through me just being his brother and I – and I know him and – yes, and it was a bit of a bad area that he was in, bad situation.
Q:How long do you understand him to be using marijuana and methamphetamine?
A:Look, off and on for a number of years there.
Q:Okay?
A:Can’t really pinpoint the time because I don’t – yes, I’m not sure myself. But, you know, a good – be eight years – eight years back.
MB’s evidence was to the effect that he, MB, had lived in Western Australia between 2004 and 2014, before moving to Darwin, then in around 2019 to Victoria and eventually in 2022 to Queensland. Mr Bainbridge had worked as a scaffolder with MB in Darwin for two years between about 2016 and 2018. Mr Bainbridge had then returned to Western Australia and MB believed that was when he had “gotten back into his troubles again”. In the context, this seems to have been a reference to drug use and criminal activity relating to drug use.
The questioning of Mr Bainbridge about his drug use before the Tribunal
Mr Bainbridge relied upon various passages from the evidence he gave before the Tribunal. The following seem to me to be the most relevant to the present issue.
After referring to the fact that his criminal record included “quite a few drug-related offences plus possession of drugs and driving while under the influence of alcohol”, the Tribunal asked Mr Bainbridge, “What role did drugs and alcohol play in the offending?” Mr Bainbridge answered:
The drugs played a little bit in the offending and – I can actually say that played a lot in the offending – a lot of them – because I would have those moments of slipping back into it and then I would offend. Most of the time when I was clean or something like that and I was working I wouldn’t offend. I wouldn’t – you know, it was – I could say that yes, it had a role to play in it.
Later, after identifying a period of three years between January 2009 and January 2012 when Mr Bainbridge’s record did not disclose that he had committed any offences, the Tribunal asked whether he was using drugs during that time. The questioning specifically related to Mr Bainbridge’s drug use during a period when the evidence before the Tribunal otherwise suggested that he had not been committing any offences. The answer he gave tended to incriminate him in relation to the use of drugs “off and on” during this period.
The Tribunal’s questioning worked through Mr Bainbridge’s record of convictions, linking their timing with his work history, periods in prison and other events in his life. In the course of that questioning, the Tribunal asked him about his drug use during various periods. A fair reading of his evidence is that he admitted habitually using drugs in the period around July to September 2019 and started using methylamphetamine again in around March 2021. The questioning related not merely to the possession of methylamphetamine that was the subject of a charge in March 2021 but also to Mr Bainbridge’s drug use generally around that time.
Mr Bainbridge was then cross-examined by the Minister’s counsel. He was asked about a home burglary he had committed in September 2019. After inviting Mr Bainbridge to look at a particular page of the sentencing remarks for that offence, the following exchange occurred:
Q:… Would you accept that you were operating under what the sentencing judge described as a drug addiction to methylamphetamine at the time? Would you accept that?
A:Yes. Drug addiction and – that was the same time as I’d broken up with the mother of my kids and moved out, so it was heartache, or.
A little later, the Minister’s counsel questioned Mr Bainbridge at length (over almost four pages of the transcript) about his history of methylamphetamine and cannabis use over his whole adult life. Mr Bainbridge was questioned in detail about periods in which he used and abstained from using methylamphetamine, how frequently he used methylamphetamine during particular periods, how much money he would spend on it, and how he obtained his supply of the drug.
In written submissions, the Minister disputed Mr Bainbridge’s characterisation of the questioning as “extend[ing] well beyond the offences [of] which he was convicted”. However, as can be seen, the questioning was not restricted to the particular drug-related offences of which he had been convicted. It extended to questioning Mr Bainbridge generally about his drug use, including in relation to periods generally surrounding and outside the dates of the commission of offences of which he had been convicted. Mr Bainbridge’s privilege against self-incrimination entitled him to refuse to answer those questions if (as turned out to be the case) the answers would tend to incriminate him in the commission of criminal offences.
The Minister submitted that the Tribunal was required to make an assessment of, among other things, the risk to the Australian community associated with the prospect of Mr Bainbridge reoffending, and that an understanding of his history of drug use and its relationship to the offences he had committed was critical to that assessment. The Minister submitted that, given that Mr Bainbridge had a criminal record that included drug-related offences and burglary offences committed under the influence of methylamphetamine, the Tribunal was entitled to ask him about, and make findings about, his drug use more generally. There can be no doubt that evidence about the nature and extent of Mr Bainbridge’s drug use – including the evidence given by Mr Bainbridge – was relevant to several of the considerations bearing on the Tribunal’s decision, and there can be no criticism of the Minister’s counsel before the Tribunal for exploring these relevant issues in cross-examination. I accept that it was entirely appropriate for the Tribunal to ask questions of Mr Bainbridge on this topic. But the issue is not whether the questioning was relevant or appropriate; it is whether the Tribunal should have ensured that he understood his privilege against self-incrimination before the questions were asked.
While some of the questions related specifically to offences of which Mr Bainbridge had been convicted, some of the questions about his drug use were much broader. The issue of whether Mr Bainbridge should have been informed of the privilege does not depend on whether the answers given by him were, or were likely to be, particularly damaging to him, but on whether the questions asked invited answers that could implicate him in the commission of offences.
The Tribunal’s findings in relation to Mr Bainbridge’s drug use
At [38] of its reasons, the Tribunal set out an extract from sentencing remarks relating to Mr Bainbridge’s conviction for home burglary on 25 September 2019. The sentencing Magistrate accepted that Mr Bainbridge was “operating under a drug addiction to methylamphetamine” and described him as “a man who clearly was struggling with a methylamphetamine addiction”.
The Tribunal found at [40(c)]:
There were periods in which the Applicant did not offend, or at least was not convicted. In particular, in the period from February 2009 to March 2012 no convictions were recorded against the Applicant. I asked the Applicant what changed in that period for the Applicant not to offend. His evidence was that he was working in Karratha and Port Hedland on a fly-in-fly-out basis in that period. He was during this period subject to drug testing at work, so he reduced his methamphetamine use.
The Tribunal included a footnote identifying Mr Bainbridge’s oral evidence to this effect as the source of this finding.
In discussing “[t]he nature of harm to individuals or the Australia community”, the Tribunal at [46(d)] referred in general terms to “the health, social and economic harms of methamphetamine”.
Under the heading “The likelihood of the non-citizen engaging in further criminal or other serious conduct”, at [52(f)] the Tribunal referred to the fact that Mr Bainbridge had undertaken various courses including a course relating to alcohol and drug addictions, but stated: “There is no evidence as to the outcome of these courses in relation to the Applicant, how the courses mitigate the risk of future offending from these factors or how the above courses have mitigated the risk of future drug use.”
At [55], the Tribunal referred to Mr Bainbridge’s evidence, including about his drug use, in the following terms:
The Applicant’s evidence was that he started using methamphetamine when he was 19 or 20, shortly after he arrived in Australia (the Applicant arrived in Australia in August 2006), and that he continued using methamphetamine up to shortly before he went to prison in March 2022. In relation to his methamphetamine use, his evidence was that he could go for months without using but then he would “go a few months with it” during which periods he would use every second or third day. His cannabis use was similar and was also impacted by his working as he would be subject to drug testing at work. His evidence was that when he was released from prison in March 2020, he lived with his parents during which time he did not use methamphetamine. He did, however, return to using methamphetamine and committed the home burglary offences in February and March 2022 when he was using methamphetamine.
Although it was not expressly stated, it appears clear that the Tribunal accepted and acted upon Mr Bainbridge’s evidence about the nature and extent of his drug use.
At [61]-[62], the Tribunal set out its conclusions as to Mr Banbridge’s rehabilitation and the risk that he would reoffend, in terms that included a reference to his drug use:
The Applicant’s rehabilitation has been scant. Perhaps with the exception of the single online session with SMART Recovery Australia, the Applicant has not undertaken relevant, recognised programs which could be accepted as reducing his risk of offending as he has in the past to any significant degree. The Applicant has a serious criminal record and a long-standing issue with drugs, in particular, methamphetamine. He has had numerous warnings and “second chances”. The warning that Magistrate Coleman gave the Applicant in March 2020 … could not have been any clearer. Notwithstanding that warning, the Applicant reoffended multiple times. The community and family supports and incentives that the Applicant points to as lessening his risk of reoffending, were all present when the Applicant offended. There is nothing to indicate that those supports and incentives will be of any greater effect than they were in the past in preventing the Applicant from offending.
I assess the Applicant as a high risk of re-offending.
(Emphasis added.)
Under the heading “Fourth Primary Consideration: Best interests of minor children in Australia affected by the decision (para 8.4)”, in the course of a fairly long discussion, the Tribunal made further brief reference to Mr Bainbridge’s drug use in [92(b)] and [92(c)], stating by reference to cll 8.4(4)(b) and (c) of Direction 99:
(b) Subparagraph (b) – given the Applicant’s serious criminal record and long-standing history of drug abuse and my assessment that he is a high risk of reoffending and returning to drug abuse, it is difficult to see the Applicant playing a positive parental role. I do accept, however, that the children would still benefit from the Applicant having the same, or similar, contact with them that he had before his arrest. I also accept that it is likely that [Ms M] would benefit from the Applicant sharing, albeit only occasionally, the parenting role.
(c)Subparagraph (c) – there is no evidence that, other than absences caused by the Applicant’s imprisonment and visa cancellation, his prior conduct has had an adverse impact on the children. If the Applicant were to return to the same level of drug abuse (and offending) that he has in the past, it is likely that there would be an adverse impact on the children by, as a minimum, further absences due to imprisonment/detention.
(Emphasis added.)
Under the heading “Extent of impediments if removed (para 9.2)”, the Tribunal referred to a number of considerations including, at [114], Mr Bainbridge’s problems with methylamphetamine:
… While the Applicant did not raise it as a possible impediment, I am conscious that the Applicant’s problems with methamphetamine, of which I have found there to be a risk of recurrence, may be an impediment to the Applicant establishing and maintaining a basic living standard. …
This was a respect in which Mr Bainbridge’s difficulties with methylamphetamine ultimately contributed to a factor which the Tribunal weighed in his favour – the “extent of impediments” if Mr Bainbridge were removed from Australia – though the Tribunal only gave “minor weight” to that consideration.
In summary, the Tribunal had regard to the evidence about Mr Bainbridge’s drug use in a number of ways. The evidence which the Tribunal took into account included the evidence Mr Bainbridge himself had given in response to questioning by the Tribunal and by counsel for the Minister. That evidence provided additional information about the history, extent and circumstances of Mr Bainbridge’s drug use that was not otherwise known from the material and other oral evidence before the Tribunal. It amounted to “something more than what was already known on the available material”: cf Verrill at [37].
Procedural fairness
I have referred at [57]-[60] above to the principles relevant to the privilege against self-incrimination. For the same reasons already discussed in relation to the passenger cards, in my view the Tribunal should have informed Mr Bainbridge of his right to decline to answer questions on the topic of his previous drug use, insofar as those questions extended beyond the commission of the specific drug-related offences of which he had been convicted, and the fact that, if he elected to answer questions, any admissions he made could potentially be used against him.
The failure of the Tribunal to inform Mr Bainbridge about these rights in connection with his drug use will have amounted to both a denial of procedural fairness and a jurisdictional error if it was material to the Tribunal’s decision. It is unnecessary to decide whether it would have amounted to a denial of procedural fairness even if it was not material to the Tribunal’s decision and therefore did not constitute jurisdictional error: see [68] above.
Materiality
This is not a situation where failure of the Tribunal to inform Mr Bainbridge of his privilege against self-incrimination amounted to a failure to put him on notice of a relevant fact or issue, such that the Court can readily infer that, had he been fairly put on notice of the fact or issue, he might have addressed it by way of further evidence or submissions. It is necessary to consider in a practical way what could have occurred had the Tribunal informed Mr Bainbridge of his privilege against self-incrimination. That requires consideration of the other evidence that was before the Tribunal and an assessment, in light of the findings and reasons of the Tribunal, of whether there is a realistic possibility that the Tribunal’s decision could have been different had Mr Bainbridge been informed of his rights.
In undertaking that exercise, the Court should not make assumptions about how the Tribunal would have undertaken the weighing process required by Direction 99. “A reviewing court does not engage in a review of the merits of the decision, reconstruct a decision‑making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision”: LPDT at 618 [29] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); see also TPTN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 82 at [63]; AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103 at [51].
I accept that the findings which the Tribunal did in fact make about Mr Bainbridge’s drug use were based not only on the written material and the evidence of Ms M and MB but also on Mr Bainbridge’s own evidence of his drug use. In describing the use to which it put its findings as to Mr Bainbridge’s drug use, the Tribunal referred in general terms to his “long-standing history of drug abuse”. However, that must be understood as a shorthand expression that reflected the overall view or impression of Mr Bainbridge’s history of drug use, formed by the Tribunal on all the evidence before it, including the more detailed understanding attained through the consideration of Mr Bainbridge’s evidence which it had set out at [55].
The other evidence before the Tribunal relating to Mr Bainbridge’s drug use has been identified at [84]-[89] above. That evidence clearly established a significant history, since at least 2016, of drug possession and use by Mr Bainbridge, involving both cannabis and methylamphetamine. It also indicated that he had had a methylamphetamine addiction and provided a basis to conclude that the commission of at least one of the burglary offences was linked to that addiction.
If the Tribunal had informed Mr Bainbridge that he was not required to answer any questions about his drug use then there are two realistic things that could have occurred.
First, Mr Bainbridge might well have elected to answer those questions as he in fact did, acknowledging the extent of his drug use and its relationship with his offending, and providing a fair degree of detail about the history of his drug addiction and use over his adult life. He might well have chosen to do that because he wanted to be, and to appear, frank and forthright with the Tribunal about his previous drug use; because there was already substantial evidence of his drug use in the material before the Tribunal; because the Tribunal evidently regarded it as relevant; and because it would assist the Tribunal in understanding one of the possible causes of his offending. Mr Bainbridge might also have considered that it was in his interests to point out that there had been periods, particularly when he was in work, when he had been able to reduce or avoid drug use, and that his circumstances at the time of the Tribunal hearing differed from those existing at the time when he had committed his most serious offences. However, it is not inevitable that Mr Bainbridge would have elected to answer the questions.
Secondly, Mr Bainbridge might have declined to answer questions about his drug use insofar as they went beyond the specific offences of which he had been convicted, relying on his privilege against self-incrimination.
Had that occurred, the Tribunal’s reasons would necessarily have been different from the reasons it actually gave. It could not have set out the evidence at [55] of its reasons, which it took into account in reaching its conclusions. It could not have made the observations recorded at [40(c)] of its reasons, to which it evidently had regard. Those observations were potentially of some influence in the Tribunal’s assessment of Mr Bainbridge because, for example, they highlighted that there had been periods in the past when he had refrained from using methylamphetamine but that he had later relapsed into drug use and related offending. That could plausibly have contributed to the Tribunal’s view of the risk that Mr Bainbridge would reoffend in the future, which it assessed as “high” (at [62]).
I accept that, had Mr Bainbridge not provided evidence about his history of drug use, the Tribunal would have accepted, based on the uncontradicted evidence before it, that Mr Bainbridge had, for at least some period in the past, been a user of cannabis and methylamphetamine, and that his use of methylamphetamine had been a factor in the most serious offences he committed. The Tribunal would have been considering the circumstances of a man who clearly had used methylamphetamine and cannabis, but with little detail about the full period over which he had used those drugs; the extent to which he had been able to refrain from using them at various points in the past; the fact that there had been substantial periods when he had abstained from drug use but then later returned to using drugs; or the particular events in his life that caused him to resort to drug use.
In the absence of Mr Bainbridge’s evidence about his drug use, the Tribunal might have formed a different overall impression of the risk of his reoffending. His evidence was in fact taken into account by the Tribunal in its overall assessment of the risk that Mr Bainbridge would reoffend, his prospects of rehabilitation, and his likely future relationship with his children.
While it is inevitable that, even without Mr Bainbridge’s evidence, the Tribunal would have given substantial weight to the risk of reoffending in its exercise of the power, I do not think it is possible to say that its assessment of the weight to be given to that consideration, and its ultimate weighing up of all the considerations, could not have been any different had Mr Bainbridge, cognisant of his privilege against self-incrimination, declined to answer questions about his drug use beyond the offences of which he had been convicted. It is not possible to disentangle the contribution of Mr Bainbridge’s evidence from the other, less detailed and extensive, evidence relating to his history of drug use. The error “contributed to the evaluative and discretionary decision which the Tribunal made”: cf LPDT at 619 [35] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).
As in relation to ground 1, on the question of materiality in relation to ground 3, this is perhaps a borderline case; it is highly likely that the Tribunal’s decision would have been the same. For the reasons I have explained, though, I consider that there is a realistic possibility that the Tribunal’s decision could have been different, as a matter of reasonable conjecture within the parameters set by the historical facts, had the Tribunal informed Mr Bainbridge of his privilege against self-incrimination in connection with his previous drug use.
Further observations about proof of facts necessary to establish materiality in this context
It may well be that the failure of the Tribunal to inform an unrepresented party about their privilege against self-incrimination will only amount to a denial of procedural fairness (or a material denial of procedural fairness) if the person did not, in fact, have an adequate awareness or understanding of the privilege at the time when they were questioned. If the person was already aware of, and adequately understood, their rights at the time when they appeared before the Tribunal, there would seem to be no practical injustice arising from the failure of the Tribunal to explain them. It should, of course, be borne in mind that the reality may often involve some nuance: even if a person has a general awareness that a privilege against self-incrimination exists under the law of Australia, it does not follow that they will necessarily call that general awareness to mind in context of a tribunal hearing, or appreciate that they are entitled to decline to answer questions about specific topics under oath.
It is the applicant in judicial review proceedings who bears the onus of establishing the facts necessary to demonstrate jurisdictional error (including breach of the rules of procedural fairness): MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at 524 [39] (Keifel CJ, Gageler, Keane and Gleeson JJ); LPDT at 615 [10]-[12] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). It may be, therefore, that it will usually be incumbent on a person in the position of Mr Bainbridge to adduce evidence in judicial review proceedings sufficient to establish that he was not aware of his rights or the nature of the privilege against self-incrimination at the relevant point in time, or at least that he did not make an advertent decision to give evidence that might incriminate him with an appreciation that he was not required to do so. Mr Bainbridge did not lead any evidence of that kind in the present proceedings.
On the other hand, the other decisions which have considered the privilege against self-incrimination in this context seem to have proceeded on the basis that it may at least be assumed that any failure to explain the privilege to a self-represented litigant will generally mean that the litigant has lost an opportunity to choose to invoke the privilege, of which they might have availed themselves had it been explained to them.
The Minister did not contend that I should hold that the failure of the Tribunal to inform Mr Bainbridge of the privilege was not material because Mr Bainbridge had failed to prove that he was unaware of the privilege during the Tribunal hearing. The Minister accepted that, in the present case, it was at least a reasonable possibility that, had Mr Bainbridge been informed of the privilege, he might have chosen not to answer some of the questions about his drug use (and accordingly the focus of the Minister’s submissions was on whether the Tribunal’s decision could have been any different had Mr Bainbridge declined to answer those questions). I consider it appropriate to act on this concession.
Conclusion in relation to ground 3
For the reasons given above, Mr Bainbridge has established his third ground of judicial review.
CONCLUSION
Mr Bainbridge has been successful in relation to his first and third grounds of judicial review. It follows that a writ of certiorari should issue to the Tribunal, quashing its decision dated 19 December 2023. A writ of mandamus should issue to the Tribunal, requiring it to determine Mr Bainbridge’s application for review of the decision of the Minister’s delegate dated 25 September 2023 in accordance with the law.
When the matter is reconsidered by the Tribunal, it will be necessary to ensure that the Tribunal, as newly constituted, does not have before it, and does not take into account, any of the evidence given by Mr Bainbridge at the first hearing in respect of which the privilege against self-incrimination applied – unless of course Mr Bainbridge consents to that evidence being put before the Tribunal. If the Tribunal were to take that evidence into account in a way that was adverse to Mr Bainbridge’s interests, he would again be denied procedural fairness. Even though I have found that the failure to warn Mr Bainbridge of his privilege against self-incrimination in relation to the passenger cards was not material to the Tribunal’s decision, his evidence in relation to that issue should not be put before the new Tribunal either, unless he consents to that course. I do not consider that I should make any further orders specifically addressed to this issue – the command that the Tribunal reconsider Mr Bainbridge’s application in accordance with the law is sufficient – but those acting for the Minister should take this into account when determining what material should be placed before the Tribunal.
I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald. Associate:
Dated: 18 September 2024
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