Harrington v The Honourable Kevin Andrews MP, Minister for Immigration and Citizenship
[2007] FCA 1287
•22 August 2007
FEDERAL COURT OF AUSTRALIA
Harrington v The Honourable Kevin Andrews MP, Minister for Immigration and Citizenship [2007] FCA 1287
ADMINISTRATIVE LAW – application for constitutional writs – where applicant’s visa cancelled under s 501(2) Migration Act 1958 (Cth) – where Minister had regard to non-disclosable information – where substance of non-disclosable information not put to the applicant prior to decision – where departmental representative induced belief in applicant that applicant would have opportunity to put forward further information and submissions in support of his case after any decision to cancel applicant’s visa – where applicant did not put forward all the information he would have put forward but for that belief – whether failure to put the substance of the non-disclosable information was a breach of the rules of procedural fairness – whether applicant denied procedural fairness by reason of being denied the opportunity to put all relevant information before the Minister.
Held: The substance of adverse non-disclosable information not provided by the applicant or to him from other sources ought to have been disclosed – in the circumstances the failure to disclose was a breach of the rules of procedural fairness – but for the conduct of, or representation by, decision-maker, applicant would have presented additional information – conduct or representation occasioned a breach of the rules of procedural fairness – application allowed.
Acts Interpretation Act 1901 (Cth) s 25D
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Criminal Law Consolidation Act 1935 (SA) s 56
Criminal Law (Sentencing) Act 1988 (SA) s 18A
Judiciary Act1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 424, 440, 476A, 498, 499, 501, 501GApplicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 referred to
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 referred to
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 referred to
Kioa v West (1985) 159 CLR 550 referred to
Minister for Immigration and Multicultural and Indigenous Affairs; Re, Ex parte Lam (2003) 214 CLR 1 referred to
Minister for Immigration and Multicultural and Indigenous Affairs; Re, Ex parte Palme (2003) 216 CLR 212 referred to
Muin v Refugee Review Tribunal (2002) 76 ALJR 966 referred to
Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82 referred toSHANE TERENCE HARRINGTON v THE HONOURABLE KEVIN ANDREWS MP, MINISTER FOR IMMIGRATION AND CITIZENSHIP
SAD 47 OF 2007BESANKO J
22 AUGUST 2007
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 47 OF 2007
BETWEEN:
SHANE TERENCE HARRINGTON
ApplicantAND:
THE HONOURABLE KEVIN ANDREWS MP, MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
17 AUGUST 2007
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.A writ of prohibition be directed to the respondent prohibiting him from acting upon or giving effect to his purported decision, dated 20 February 2007, to cancel the applicant’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth).
2.A writ of certiorari be directed to the respondent to quash the decision to cancel the applicant’s visa.
3.The respondent is to pay the applicant’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 47 OF 2007
BETWEEN:
SHANE TERENCE HARRINGTON
ApplicantAND:
THE HONOURABLE KEVIN ANDREWS MP, MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
BESANKO J
DATE:
22 AUGUST 2007
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
Shane Terence Harrington was born in the United Kingdom on 14 March 1968. He came to Australia on 5 July 1974 and was granted permanent residence on his arrival. Immediately prior to 20 February 2007, Mr Harrington held a Return (Residence) (Class BB) visa, subclass 155 (Five Year Resident Return) which was granted to him on 12 September 2002. On 20 February 2007 the Minister for Immigration and Citizenship exercised the power in s 501(2) of the Migration Act 1958 (Cth) (“the Act”) to cancel Mr Harrington’s visa.
Mr Harrington claims that the Minister’s decision is invalid and he seeks constitutional writs directed to him. He invokes the jurisdiction of this Court under s 39B of the Judiciary Act 1903 (Cth) (see also s 476A of the Act).
On 17 August 2007, I made the following orders:
“1.A writ of prohibition be directed to the respondent prohibiting him from acting upon or giving effect to his purported decision, dated 20 February 2007, to cancel the applicant’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth).
2.A writ of certiorari be directed to the respondent to quash the decision to cancel the applicant’s visa.
3. The respondent is to pay the applicant’s costs.”
I said that I would deliver reasons and these are my reasons.
The grounds of the applicant’s application are as follows:
“1.A breach of the rules of natural justice occurred in connection with the making of the Decision in that:
1.1the respondent gave consideration to ‘reports from the Parole Board of SA’ (‘the Reports’) in making the Decision;
1.2the Reports were classified as ‘non-disclosable information’ within the meaning of s 5 of the Migration Act 1958 (Cth);
1.3the respondent did not disclose the Reports to the applicant; and
1.4in the premises, the Reports were not ‘non-disclosable information’ and should have been disclosed to the applicant in their entirety for him to rebut or qualify by further information, and comment by way of submission; and
1.5in the alternative, to the extent that the Reports were ‘non-disclosable information’, the respondent should have put the substance of the matters set out in the Reports in a summary to the applicant for him to rebut or qualify by further information, and comment by way of submission.
2.A breach of the rules of natural justice occurred in connection with the making of the Decision in that:
2.1the Respondent, by way of his representatives including but not limited to Mr David Maynard, created an expectation in the Applicant that, in addition to any material submitted to the Respondent, the Applicant would be able to put further evidence ‘at the next stage’ of any decision to cancel his visa;
2.2in reliance upon the expectation, the Application did not put the following material to the Respondent:
(a)further character references; and
(b)information from the Applicant’s fiancé, Ms Rachel James, concerning the impact of the possible cancellation upon her and her children;
(c)a detailed response to the report from Department of Correctional Services prepared by Ms Fiona Beevor that was before the Respondent;
2.3in the premises, the Applicant lost an opportunity to put his case to the Respondent and has been denied natural justice.”
As to the first ground, the applicant no longer contends that the reports from the Parole Board of South Australia (“Parole Board reports”) were not non-disclosable information. In other words, the applicant accepts that they were non-disclosable information within the provisions of the Act. He contends that he should have been advised of the substance of the information in the Parole Board reports and that the Minister’s failure to do so was a breach of the rules of procedural fairness. As to the second ground, I heard evidence on the applicant’s side from the applicant and his fiancé, Ms Rachel James, and on the Minister’s side, from Mr David Maynard.
It is convenient in this case to set out the relevant legislative provisions before setting out the facts.
Relevant legislative provisions
For the purposes of this case, the relevant provisions of s 501 are as follows:
“(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
…
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or”
(Original emphasis.)
The power in s 501(2) may be exercised by the Minister or, by reason of s 498, by his or her delegate. Under s 499 of the Act the Minister may give written directions to a person or body exercising the power in s 501(2) about the exercise of the power. The Minister has given a written direction under s 499 and it is referred to as, “Direction – Visa Refusal and Cancellation under s 501(2) – No 21” (“Direction No 21”). If the Minister decides that he will personally exercise the power in s 501(2), he is not bound by Direction No 21 although he may choose to follow it: Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 at 585 [31].
If the Minister or his delegate decides to cancel a visa under s 501(2) a written notice setting out the reasons for the decision (among other matters) must be given to the applicant. Section 501G provides:
”(1)If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:
(a) refuse to grant a visa to a person; or
(b)cancel a visa that has been granted to a person;
the Minister must give the person a written notice that:
(c) sets out the decision; and
(d)specifies the provision under which the decision was made and sets out the effect of that provision; and
(e)sets out the reasons (other than non‑disclosable information) for the decision; and
(f)if the decision was made by a delegate of the Minister under subsection 501(1) or (2) and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:
(i)states that the decision can be reviewed by the Tribunal; and
(ii)states the time in which the application for review may be made; and
(iii) states who can apply to have the decision reviewed; and
(iv)states where the application for review can be made; and
(v)in a case where the decision relates to a person in the migration zone—sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi)sets out such additional information (if any) as is prescribed.
(2) If the decision referred to in subsection (1):
(a)was made by a delegate of the Minister under subsection 501(1) or (2); and
(b) is reviewable by the Administrative Appeals Tribunal; and
(c)relates to a person in the migration zone;
the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that:
(d)is in the delegate’s possession or under the delegate’s control; and
(e) was relevant to the making of the decision; and
(f) does not contain non‑disclosable information.
(3) A notice under subsection (1) must be given in the prescribed manner.
(4)A failure to comply with this section in relation to a decision does not affect the validity of the decision.”
Section 501G(1) engages s 25D of the Acts Interpretation Act1901 (Cth) which provides as follows:
“Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.”
Section 501G(1)(e) and (2)(f) refers to non-disclosable information. That term is defined in s 5(1) of the Act as follows:
“non-disclosable information means information or matter:
(a)whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:
(i)prejudice the security, defence or international relations of Australia; or
(ii)involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or
(b)whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or
(c)whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.”
(Original emphasis.)Leaving aside s 501G there is no reference in s 501(2) or, any other section which might bear upon its interpretation, to non-disclosable information.
A person who is facing the cancellation of his or her visa under s 501(2) must be accorded procedural fairness: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Palme (2003) 216 CLR 212.
If the Minister’s delegate makes a decision under s 501(2) then the affected party may seek a review of the decision by the Administrative Appeals Tribunal: s 500(1). On such an application the Tribunal would consider the matter afresh and the applicant for review would be at liberty to put forward all the evidence he or she considered appropriate: s 43 Administrative Appeals Tribunal Act 1975. On the other hand, if the Minister makes the decision under s 501(2) an affected party could only challenge the Minister’s decision by seeking constitutional writs against the Minister. The grounds upon which the Minister’s decision can be challenged in such proceedings are very limited in scope and would not involve a consideration of the merits of the decision and therefore of any further or additional evidence relevant to the merits of the decision.
The facts
The applicant is a British citizen and, as I have said, he arrived in Australia in 1974. He left Australia on 3 August 1987 and returned on 22 November 1992. He has resided in Australia since that time.
Between 16 March 2000 and 7 June 2000 the applicant indecently assaulted his 14‑year old stepdaughter. He pleaded guilty to three counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). On 6 December 2002 he was sentenced by the Chief Judge of the District Court of South Australia. The Judge imposed one penalty under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) of imprisonment of six years and six months with a non-parole period of four years commencing on 11 October 2002. The applicant appealed against his sentence to the Court of Criminal Appeal, and on 30 April 2003 that Court declined to interfere with the head sentence but reduced the non-parole period to three years and six months.
The applicant was released from gaol on 15 June 2006. He met Ms Rachel James shortly thereafter and commenced a relationship with her in early July 2006. They are engaged to be married. Ms James has three children. The applicant was initially not permitted to have unsupervised contact with children, including Ms James’ children. He is now allowed to have contact with Ms James’ children providing she is present.
In July 2006 the Minister for Immigration and Multicultural Affairs or officers of her Department gave consideration to the cancellation of the applicant’s visa under s 501(2) of the Act. A letter was prepared for the purpose of giving the applicant notice of an intention to consider the cancellation of his visa under s 501(2) of the Act. The letter is not dated but it must have been prepared on or about 31 July 2006. The letter advised the applicant that the Minister or a delegate of the Minister may cancel the applicant’s visa in certain circumstances. A copy of s 501 and Direction No 21 were attached to the letter. The letter stated that if a delegate makes the decision he or she will be required to follow Direction No 21, whereas if the Minister makes the decision she may decide to have regard to the matters in Direction No 21 although she was not required to give consideration to those matters.
The letter stated that the Minister or delegate will take into account information in the following documents which were in the Department’s possession:
1. Immigration History;
2. Certificate of Record for the sentence of 6 December 2002;
3. Sentencing remarks made by the Judge on 6 December 2002;
4. Community Corrections Report.
Copies of those documents were attached to the letter.
The letter stated that the Department had reports from the Parole Board of South Australia, but that those reports had been classified as “non-disclosable information” pursuant to s 5(1) of the Act. The letter stated that the reports could not be released to the applicant, however, the applicant was invited to comment.
Mr Maynard is an immigration officer based in Adelaide. He was involved in the process whereby consideration was given to the cancellation of the applicant’s visa. His involvement ceased in approximately September 2006. He arranged to give the letter prepared in late July to the applicant at his house and to answer any questions he may have. That was in accordance with the Department’s then procedure. Mr Maynard went to the applicant’s house on 31 July 2006. A conversation took place between Mr Maynard and the applicant. I think that it may be inferred that at that point in time a decision had not been made as to whether the Minister or her delegate would make the decision under s 501(2).
The applicant gave a detailed account of the conversation and a summary of that account follows. The applicant said that the contents of the letter prepared on or about 31 July 2006 were discussed. He said that a number of particular matters were discussed including whether he should consult a lawyer and whether the Department would provide a lawyer for the purpose of providing advice, the provision by the applicant of character references and the contents of a report from Ms Fiona Beevor who was an officer of the Department of Correctional Services. The applicant said that he strongly disagreed with a number of the statements in Ms Beevor’s report. The applicant told Mr Maynard that as far as obtaining character references was concerned he did not want to trouble people unnecessarily. Mr Maynard told the applicant that he should try to obtain a reference from his mother, but that it was up to him whether he obtained a reference from Ms James.
The applicant asked Mr Maynard what would happen after the meeting. Mr Maynard said that it was open to the Department to decide not to take any further action or to issue him with a warning or to move to the “next stage” (apparently Mr Maynard’s words) of cancelling his visa. The applicant asked Mr Maynard if he could appeal against the decision if it was decided to cancel his visa and the matter went to the next stage. Mr Maynard said that the answer depended on whether the visa was cancelled by the Minister or by a delegate. He explained to the applicant that an appeal would usually go to the Tribunal from a decision of a delegate, but that if the Minister cancelled the visa, the Tribunal would not be able to hear him and an appeal would go to the Federal Court. Mr Maynard said that it was not usual that a visa would be cancelled by the Minister personally. After being referred to statements in the letter about the information that would be taken into account, the applicant asserts that he said:
“Well that’s OK then if it does go to the next stage I know my family and friends would be happy to go to the Tribunal or the Court and speak on my behalf.”
The applicant asserts in response to that comment that Mr Maynard said that he would be able to do that. There was then a discussion about the applicant’s rehabilitation and the fact that he was considered to be of too low a risk in terms of re-offending to participate in a program conducted by the Sexual Behaviours Clinic. The applicant asked Mr Maynard to obtain a report from a psychologist who had examined the applicant, Mr Shawn Sowerbutts, and the reasons for judgment of the Court of Criminal Appeal on his appeal against sentence.
The applicant said that the meeting ended on the understanding that Mr Maynard was going to make further inquiries. The applicant was told by Mr Maynard not to do anything at that stage and that he would be contacted. At that point, the applicant considered that it was unlikely that his visa would be cancelled.
In cross-examination, the applicant agreed that Mr Maynard had encouraged him to put his “best foot forward” on the consideration of whether his visa should be cancelled.
Mr Maynard had only a general recollection of the meeting on 31 July 2006. He did prepare some notes when he returned to the office and those notes were typed up. Those notes are not comprehensive as to the matters discussed at the meeting. He cannot recall discussing the topic of the applicant obtaining legal assistance. There was a discussion about how the decision would be made and the fact that decisions could be reviewed by the Tribunal or by the Court. He cannot recall a discussion about the nature or process of appeal and he said that he would not normally discuss such matters. Mr Maynard said that he did encourage the applicant to put his best case forward in his initial response and he said, in the context that the applicant was listing off the type of people he thought he could get references from, that references from immediate family members can be important. He made it clear that it was the applicant’s responsibility to provide a response.
In the cross-examination, Mr Maynard agreed that he could not recall a number of aspects of the conversation as deposed to by the applicant. As to whether he agreed with the applicant that his family and friends could go to the Tribunal or Court and speak on his behalf, Mr Maynard gave the following evidence:
“Question: You say in paragraph 3.2 of your affidavit that you don’t recall discussing the nature or process of appeal, and that you would not normally discuss such matters. Do you recall discussing what is set out in paragraphs 16 and 17 with Mr Harrington?
Answer: Not specifically. I certainly would have advised him that there was an appeal process, and depending on who the decision was made by as to whether it would go to the Tribunal or to the Court. But I don’t believe that I would have taken that conversation any further than that, because the prime focus then was for him to make his best case in the first instance.
Question:In paragraph 17, Mr Harrington deposes to having said the words:
‘Well, that’s okay then. If it does go to the next stage, I know my family and friends would be happy to go to the Tribunal or the Court and speak on my behalf.’
Question: Do you recall him saying those words?
Answer No.”
Mr Maynard was a straightforward witness and I accept his evidence. However, he was not in a position to deny clearly that part of the conversation which is presently relevant.
I have some reservations about accepting the applicant’s evidence that Mr Maynard agreed with his statement that if the matter went to the Tribunal or the Court, his family and friends could give evidence on his behalf. Although in general terms I accept the applicant as a witness of truth I think his recall of events and conversations was not as good as he would have me believe. For example, the telephone conversation referred to below (at [31]) could not have occurred when he said it did. Although I do not think he was fabricating his evidence, it seems to me that with the benefit of hindsight he suggested that things were said which I doubt were so clear at the time. After all, the conversation with Mr Maynard took place in a context in which Mr Maynard was encouraging the applicant to put his best foot forward and the focus at that time would have been on the decision of the Minister or her delegate. Furthermore, the applicant said that at that stage he did not think the Department would proceed with the cancellation of his visa and it seems that there was no particularly strong reason why the applicant would have seen the need to distinguish between the decision of the Minister or her delegate and an application or appeal from that decision. Although in the end I accept that something was said by the applicant along the lines of what he deposed to and that Mr Maynard in a general way indicated his agreement with it, I would nevertheless have difficulty in accepting that in the circumstances then and later it would, without more, have led the applicant to act to his detriment. However, as will become clear there was a second conversation.
Mr Maynard had some matters to follow up after his conversation with the applicant. These matters were the applicant’s attempted involvement in a program conducted by the Sexual Behaviours Clinic and the remarks made by the Court of Criminal Appeal on the hearing of his appeal against sentence. Mr Maynard’s notes of the conversation indicate he told the applicant that it was up to him how much, if at all, he involved his mother in the process whereby his visa might be cancelled.
As I have said, Mr Maynard was asked by the applicant to request a report from Mr Sowerbutts, and he did that by letter dated 15 August 2006. The applicant said that he spoke to Mr Maynard in late August or early September 2006 and he requested Mr Maynard to obtain a report from Mr Sowerbutts which Mr Maynard agreed to do. That conversation could not have taken place in late August or September 2006 bearing in mind the date of Mr Maynard’s letter.
Various pieces of information were received by the Department.
Mr Maynard prepared a letter to the applicant dated 13 September 2006 which the applicant received on 20 September 2006. The letter said relevantly:
“Since the previous notification was sent to you, further information has come to the Department’s attention that will be taken into consideration in making a decision on your visa. You are provided with an opportunity to comment on the further information.
The further information to be taken into account includes the following documents, copies of which are attached:
§Offender History Report (Attachment A)
§Supreme Court of SA (Court of Criminal Appeal) Certificate of Record and Judgment of 20 April 2003 (Attachment B)
§SOTAP report of Shawn Sowerbutts (Attachment C)
In preparing your comments please read fully and carefully the contents of the Minister’s Direction No 21. You should address each and every topic that you feel applies to you or is relevant to your circumstances. You may also wish to provide any further information that you feel the Minister or his delegate ought to be aware of and take into account.”
On or about 6 October 2006 the applicant attended at the office of the Department and asked for and was granted an extension of time to 20 October 2006 to make his submissions as to why his visa should not be cancelled. Ms James was with him and they spoke to an immigration officer who has not been identified. He was told by the officer that Mr Damien Holzheimer had taken over his case from Mr Maynard. The applicant’s account of the conversation was as follows:
“Rachel and I had a whole lot of questions for the officer about the process. Rachel said something to the effect ‘I really feel that I should put in a reference for Shane as well.’ The Immigration officer said ‘I wouldn’t if I were you – it would only come across as biased’. I said to Rachel in the immigration officer’s presence ‘Don’t worry if anything happens and it goes to the next stage you can always come to court and speak on my behalf’. The officer said ‘Yes’.”
After this conversation, Mr Holzheimer attended and he indicated to the applicant that a 14-day extension would be granted. The applicant was given Mr Holzheimer’s card with the new date written on the back of it.
Ms James’ account of the conversation was different. She said:
“On that occasion, the case officer on the file, Damien, was not available when we went in. I remember that we spoke to somebody else instead. I remember that I had a lot of questions that I wanted to ask the Immigration officer. The man we were speaking to said that he could not answer all of our questions because he was not the case officer on the file. I then recall saying to him ‘does it look like he will be deported?’ The Immigration officer said ‘Look, it will go to the Tribunal, everyone gets a chance.’ I asked the Immigration officer whether I should put in a statement. I said that I felt that I should put in a statement.
The Immigration officer said ‘No, don’t worry about it because partners always come across as biased anyway and you will get a chance to talk to the Tribunal.’
Because of what I was told by the Immigration officer, Shane and I decided that I would not put in a statement to the Department.”
There are clearly some differences between the applicant’s account and that of Ms James but they are not such that I would find that no such conversation took place. The applicant was a more impressive witness than Ms James and I accept his account of the conversation.
I accept by reason of what he was told by Mr Maynard and by the unidentified officer that the applicant believed that if his visa was cancelled he could put forward further information about whether or not his visa should be cancelled either to the Tribunal or, if the Minister made the decision, to the Federal Court. I am satisfied that had he appreciated that further evidence as to the merits could not have been put to this Court on an application for judicial review he would have put forward further information as to a number of matters, including further character references, a statement from Ms James about the impact on her and her children of the applicant’s visa being cancelled, material as to the applicant’s child support payments and prospects of employment, information as to his mother’s mental state and his relationship with her, information as to assistance he provided at a traffic accident and information to contradict a number of statements in Ms Beevor’s report.
On 20 October 2006 the applicant gave the following information to the Department:
1. Letter dated 1 October 2006 from him containing his submissions;
2.Letter from Advanced Television Research dated 9 October 2002. That company is a previous employer of the applicant;
3.Results from TAFE SA about courses completed by the applicant;
4.Information as to the completion by the applicant of a first aid certificate and a statement of attainment by the applicant as to the operation of forklift trucks.
With the letter, or provided to the Department at about the same time, were the following:
1. A letter from the applicant’s mother dated 19 October 2006;
2.A letter dated 15 August 2006 from Mr Guy Taylor, Deacon, Victory Christian Centre Chaplain’s Assistant, Yatala Labour Prison;
3.A letter dated 3 August 2006 from Reverend Eric March, retired minister in the Uniting Church in Australia;
4.A letter dated 16 September 2006 from Mr Nigel Paul Terrill;
5.A letter from SA Cancer Consultants dated 21 August 2006;
6.Information about child support payments made by the applicant.
The Department also had the following information:
1.A report of Mr Sowerbutts, a clinical psychologist involved in the sexual offender treatment and assessment program;
2.Department of Correctional Services contact history;
3.A report dated 21 July 2006 of Ms Fiona Beevor who was a community corrections officer at the North East Community Correction Centre.
The Minister made his decision cancelling the applicant’s visa on 20 February 2007. His reasons are signed by him and dated that day. By letter from Mr Maynard dated 28 February 2007 he was advised of the Minister’s decision and sent a copy of the Minister’s reasons.
Before making his decision, the Minister was given a lengthy minute prepared by one of the officers in his Department. The Minister noted his decision on that minute.
In his reasons, the Minister said that although not bound to follow Direction No 21, “following my usual practice I proceeded in accordance with the Direction”. He considered as a primary consideration the protection of the Australian community and under that consideration, the seriousness and nature of the relevant conduct, the risk of recidivism and deterrence to others. He also considered as a primary consideration the expectations of the Australian community and, as a primary consideration, the best interests of the child. Under the heading of “Other Considerations” the Minister said:
“Mr HARRINGTON claims to be currently in a relationship. Unless the relationship commenced before, or while, he was incarcerated, the relationship has been ongoing for a maximum of almost five months. This would coincide with his release from prison. His claimed partner has not provided any information in support of his submission to the Department.
The information relevant to the ‘other considerations’ weighs against cancelling Mr HARRINGTON’s visa. I gave this consideration moderate weight.”
The minute was read by the Minister and it referred to material upon which the findings in the minute are based. One item of material is called “Annex J Non-disclosable material” and it is referred to in various parts of the minute. For example, under the heading “The protection of the Australian community – seriousness and nature of conduct – the following appears:
“29. Information relating to possible mitigating factors is also contained within the non-disclosable material at Annex J.”
A little later under the heading of “the likelihood that the conduct may be repeated (including any risk of recidivism), the following appears:
“Mr HARRINGTON, in his submission, claims that while incarcerated in Mount Gambier Prison, he was assessed for a new Department for Correctional Services (DCS) run ‘Sexual Behavioural Clinic’ course. He states that he was ‘assessed as low risk and was therefore not suitable for the course.’ Further information regarding Mr HARRINGTON’s assessment is in the non-disclosable material at Annex J.”
Under the heading of “the best interests of the children”, the following two passages appear:
“The names and ages of Mr HARRINGTON’s four other children are listed in the non-disclosable material at Annex J.
…
Further information relating to the best interests of the child can be found in the non-disclosable information (pages three and five) at Annex J.”The non-disclosable material which was Annex J was tendered in evidence. It consists of a letter from the Parole Board of South Australia dated 6 July 2006 to Mr Maynard and the following attachments:
1. Parole report prepared by Ms Kate Bonney on the applicant dated 23 February 2006.
2. Order for Release on Parole.
3. Report of Mr Shawn Sowerbutts to the Parole Board dated 26 April 2006.
The letter from the Parole Board to Mr Maynard contains the following passage:
“The enclosed reports are released on condition that the information contained in them is used solely for the consideration of the Minister or Department of Immigration Staff. The content of the reports should not be disclosed or released to the parolee (the subject of your enquiry) or a representing counsel, unless subpoenaed by a Court of Law. The Parole Board of South Australia is an exempt body under the Freedom of Information Act, South Australia, being a judicial body as defined by the Act.”
Ms Bonney, in the parole report, discusses a number of issues. One issue is the fact that the applicant proposed to live in accommodation which was in close proximity to his victim. There were said to be significant concerns associated with that issue, the details of which it is not necessary for me to mention. Another issue is the diagnosis of the applicant’s mental condition by Dr C Raeside.
Ground 1 - Parole Board reports
The parties before me were agreed that the Parole Board reports were non-disclosable information within s 5 of the Act because disclosure “would found an action by a person, other than the Commonwealth, for breach of confidence” (paragraph (c)). In other words, the applicant did not pursue the allegation in paragraph 1.4 of his application.
The Act contains provisions as to information which must be disclosed to an applicant before a decision is made and as to information which must not be disclosed in the reasons for a decision. Non-disclosable information is referred to in those contexts. For example, ss 57, 119, 120, 359A, 424A and 501C refer to non-disclosable information in the context of information to be disclosed to an applicant before a decision is made, and ss 66, 129 and 501G refer to non-disclosable information in the context of the information to be included in the reasons for decision. The curious aspect of a decision under s 501(2) is that although non-disclosable information is not to be referred to in the reasons for decision (s 501G), nothing is said in the Act about the disclosure of non-disclosable information to the applicant before the decision is made. Clearly, the disclosure of such information to an applicant may be required if regard is had only to the common rules of procedural fairness.
As I understand it, both parties were agreed that the answer to this dilemma is found in the decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88.
In VEAL, the High Court considered the Tribunal’s obligation to reveal information provided to it by the Department. Two Eritrean nationals arrived in Australia and applied for protection visas. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused their applications. They applied to the Refugee Review Tribunal for reviews of those decisions. The Department received a letter from a third party (who gave his name and address) which made allegations against the male applicant. The author of the letter asked that the information be kept secret. The Department sent the letter to the Tribunal. The Tribunal dismissed the applications for review and affirmed the delegate’s decisions. It did not tell the applicants of the letter or of the allegations made in it. The Tribunal said that it placed no weight on the information contained in the letter. The Tribunal considered that it was in the public interest that the matter be regarded as non-disclosable information for the purpose of s 424A(3)(c) of the Act, and made a direction under s 440(1) of the Act that the content of the letter not be published or disclosed.
The High Court said that the common law principles of procedural fairness required the Tribunal to advise the applicants of the substance of the allegations in the letter. The Tribunal was not required to give the applicants a copy of the letter or provide any information which would have identified the author of the letter (at [7]). The Court referred to certain statutory provisions, but said that in the circumstances the case was to be decided by reference to the common law principles of procedural fairness. The Court referred to the reasons for judgment of Brennan J in Kioa v West (1985) 159 CLR 550 at 628-629. The Court concluded that the Tribunal had an obligation to draw the applicants’ attention to the information in the letter. The Court then said (at 98 [22]-[23]):
“The fact that the author of the letter asked the Department to keep it secret did not mean that equitable principles about confidential information were to be engaged in deciding what course the Tribunal took. Rather, the nature and extent of the Tribunal's obligation to disclose the information were regulated by the Act and the obligation to accord the appellant procedural fairness.
In this case, the particular content of the obligation to accord procedural fairness was to be identified having regard not only to the particular provisions of the Act that regulated the Tribunal's work but also to the scope and objects of the Act as a whole. In that latter regard, it is necessary to keep two propositions at the forefront of consideration. First, the Act required that those entitled to a particular visa be granted the visa they sought, and that those not entitled be refused. Secondly, the Act committed the decision to grant or refuse a visa to the Executive government and the Tribunal was likewise exercising executive power, not judicial power.”
The Court said that there was a public interest in the Executive government, when making its decision, not being denied information that has been or may later be supplied by an informer (at 98 [24]). That public interest and the rules of procedural fairness could be accommodated by a requirement that the applicant be advised of substance of the allegations and asking him to respond to those allegations (at 100 [29]). The Court concluded that the Tribunal had not complied with the rules of procedural fairness.
The decision in VEAL suggests that in this case the Minister was obliged to disclose to the applicant the substance of the information in the Parole Board reports. The Minister sought to meet the difficulty caused by the fact that he had not done so by submitting that the obligation did not arise in this case because the information in the Parole Board reports was either information from the applicant, or was information which was not adverse to the applicant or was information he already had from other sources. The other sources identified by the applicant were a report of Mr Sowerbutts dated 29 August 2006 and Ms Beevor’s report. A decision-maker’s obligation of disclosure where the common law rules of procedural fairness apply has been discussed in a number of cases. I need go no further than refer to the two well-known decisions of Kioa v West (supra) at 628-629 per Brennan J; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 588-592.
In this case the Minister presented a schedule of the information in the Parole Board reports and of where he said it either came from the applicant, or was not adverse or was known to the applicant from other sources. The Minister did not submit that there was not information in the Parole Board reports which was “credible, relevant and significant to the decision to be made” (Kioa v West (supra) at 629 per Brennan J). There are obvious difficulties with the Minister’s submission. For example, unless the same words are used, it will sometimes be difficult to determine if the information provided by the applicant or said to have been available from another source is actually the same information which the applicant claims ought to have been disclosed.
In this case, there clearly was information in the Parole Board reports which was adverse and was not provided by the applicant or to him from other sources. That information related to concerns about where the applicant proposed to live in relation to his victim. The substance of that information should have been disclosed to the applicant. The applicant now has the Parole Board reports and it is not necessary for me to go further and express a conclusion in relation to each piece of information in the Parole Board reports.
The applicant has established a breach of the rules of procedural fairness.
Ground 2 – Loss of opportunity to put all relevant information to the decision-maker
The applicant submitted that by reason of the decision-maker’s conduct he was denied the opportunity to put his case and has been denied procedural fairness. Of course, the Minister and the officers of his Department did not prevent the applicant from putting forward whatever information he considered appropriate; in fact, he was encouraged by an officer of the Minister’s Department to put his best foot forward. However, his case is that by reason of a representation made to him he did not put forward all the information he would otherwise put forward.
Two decisions of the High Court have dealt with the question of whether there had been a breach of the rules of procedural fairness in circumstances where an applicant, as a result of something said by the decision-maker, did not present to the decision-maker all of the evidence and submissions he would otherwise have presented.
In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (“Aala”) an applicant who claimed he was a refugee and therefore entitled to a protection visa was told by the Refugee Review Tribunal that it had read all the papers from previous applications and Federal Court proceedings. Relying on that statement the applicant gave no further evidence. The Tribunal rejected the application for review on the basis of a finding that the applicant’s claim for refugee status was concocted. In fact, the Tribunal did not have certain unsworn statements by the applicant dealing with those matters and which had been submitted to the Federal Court. The High Court held that the Tribunal had acted in breach of the rules of natural justice and constitutional writs were issued. Each member of the Court was of the view that the Tribunal had misled, albeit innocently, the applicant and that that had caused him to conduct his case in a different way from how he would otherwise have conducted his case. In other words, it was concluded that had the applicant known the correct position he would have put additional material before the Tribunal: Gleeson CJ at 88-89 [3]-[4], Gaudron and Gummow JJ at 113-114 [70], McHugh J at 122 [103], Kirby J at 130 [128], Callinan J at 152-153 [206]-[209], [211]. It is not necessary to refer to the Court’s discussion of the submission made in that case that relief should be refused because the presentation of additional material would have made no difference to the result.
In Muin v Refugee Review Tribunal (2002) 76 ALJR 966 (“Muin”), a delegate of the Minister for Immigration and Multicultural Affairs refused to grant applications by two applicants for protection visas. Both applicants sought review by the Refugee Review Tribunal. Of present relevance is one aspect of the case. The applicants were led to believe that the Tribunal had certain documents – called Part B documents – which had been before the delegate. That belief was in each case brought about by conduct by the Tribunal.
A majority of the Court found that in each case there had been a failure to accord procedural fairness in relation to the Part B documents. Gaudron J said that there was a breach of the rules of procedural fairness because a reasonable person in the applicant’s position would have considered it unnecessary to direct the Tribunal’s attention to material favouring them in the Part B documents by reason of the Tribunal’s conduct, that they refrained from doing so and the Tribunal did not have regard to the documents (at 979-980, [62]-[68]). Hayne J, after noting that a number of what would have otherwise been difficult factual matters had been agreed between the parties, said (at 1009 [256]-[257]):
“The consequence of what has been agreed between the parties to each of the present actions is that each plaintiff was led to believe, by what the tribunal said, that it had material relevant to that plaintiff’s claim which it did not.
The agreed facts are silent about whether the tribunal was aware of the information and opinions contained in the Part B documents. It may have been, but more importantly, it may not. It follows, therefore, that in each case, the plaintiff was denied procedural fairness. Neither plaintiff was given an opportunity to place before the tribunal the material and submissions which, on the agreed facts, it is accepted that he or she would have submitted if not mistaken about what was before the tribunal. Moreover, it also follows from the parties’ agreement that each plaintiff would have made further submissions and sought to adduce further evidence that the tribunal did not comply with the statutory provisions governing its conduct of the reviews of the plaintiffs’ cases.”
With respect to this last observation by Hayne J, I note that in this case I am not concerned with possible breaches of statutory provisions but, rather, only with the common law requirements. Gummow J (at 996 [171]) and Kirby J (at 999 [194]) agreed with Hayne J’s reasoning on this point.
This case is similar to Aala and Muin in that an applicant would have conducted his case differently in the sense that he would have presented more information, which cannot be said to be irrelevant, but for the conduct of, or representation by, the decision-maker. Where it differs is at a factual level in that in this type of case it will often be difficult to prove as a matter of fact that the applicant would have conducted his case differently. However, I am satisfied of that fact in the particular circumstances of this case and therefore the applicant has established a breach of the rules of procedural fairness on this ground.
Conclusion
The applicant has established that there were breaches of the rules of procedural fairness in connection with the decision to cancel his visa.
It was for these reasons that I made the orders set out in [3] above.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 22 August 2007
Counsel for the Applicant: Mr S D Ower Solicitor for the Applicant: McDonald, Steed McGrath Lawyers Counsel for the Respondent: Dr C D Bleby Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5 July 2007 Date of Judgment: 22 August 2007
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