Hu v Minister for Immigration, Citizenship and Multicultural Affairs (No 3)
[2024] FedCFamC2G 398
•3 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hu v Minister for Immigration, Citizenship and Multicultural Affairs (No 3) [2024] FedCFamC2G 398
File number(s): SYG 263 of 2023
SYG 265 of 2023Judgment of: JUDGE D HUMPHREYS Date of judgment: 3 May 2024 Catchwords: MIGRATION – Resident Return Visas – allegations of procedural unfairness and apprehended bias – denial of procedural fairness – where material provided to the delegate was prejudicial to the applicants – application allowed – relief sought granted Legislation: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 134
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 10
Migration Act 1958 (Cth) ss 102, 128, 131, 501, 510
Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
ARJ17 v Minister for Immigration and Border Protection (2018) 257 FCR 290
AYY21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1961
Charisteas v Charisteas [2021] HCA 29
CIW21 v Minister for Citizenship and Migrant Affairs [2023] FedCFamC2G 2
CNY17 v Minister for Immigration (2019) 268 CLR 76
Disorganised Developments Pty Ltd v South Australia (2023) 97 ALJR 575
Drumgold v Board of Inquiry (No 3) [2024] ACRSR 26
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Hu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 86
Hu v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 169
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 183
Minister for Immigration and Multicultural and Indigenous Affairs v SLGB (2004) 78 ALJR 992
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
Plaintiff S183/2021 v Minister for Home Affairs (2022) 399 ALR 644
Kioa v West (1985) 159 CLR 550
Division: Division 2 General Federal Law Number of paragraphs: 127 Date of last submission/s: 28 March 2024 Date of hearing: 28 March 2024 Place: Parramatta Counsel for the Applicant: Mr Lenehan SC & Ms Baw Solicitor for the Applicant: Vision Legal Counsel for the Respondent: Mr Kay Hoyle SC & Mr Kaplan Solicitor for the Respondent: Australian Government Solicitor ORDERS
SYG 263 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XIAO HU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
SYG 265 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHAO CHANG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
3 MAY 2024
THE COURT ORDERS THAT:
1.Both applications are allowed.
2.A declaration be made that the decisions made under s 128 of the Migration Act 1958 (Cth) on 30 November 2022 was invalid and of no effect.
3.A declaration be made that the decisions made under s 131 of the Migration Act 1958 (Cth) on 6 June 2023 was invalid and of no effect.
4.The decision of the Minister be quashed.
5.A writ of mandamus be issued to the Minister, requiring him to determine the applicant’s application according to law.
6.The Respondent is to pay the Applicant’s costs as assessed or agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
Background
This judgment concerns an application seeking judicial review of a decision to cancel both the applicant’s Resident Return Visas (‘RRV’) and a subsequent non-revocation decision in relation to the cancellation of the visas.
The history of the matter is somewhat complex and needs to be set out in detail. The applicants are husband and wife. They are Chinese nationals. The applicants met in Australia and married here.
They were both granted permanent resident status in Australia in 2009. Both applicants applied to become Australian citizens in 2017 but were refused on character grounds.
Both applicants have previously been the holders of Resident Return (Subclass 155) visas. These visas allow them to leave and return to Australia.
The first applicant (Ms Hu) has two recorded criminal convictions. In 2015, she was convicted of common assault, fined $500.00 and placed on a s 9 Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CrimesAct’) bond (‘s 9 bond’) for the period of 12 months. In 2018, she was again convicted of common assault. The first applicant was placed on a community correction order for a period of 18 months, which concluded in April 2020.
The second applicant (Mr Chang) has three criminal convictions. In 2008, he was convicted of common assault and fined $300.00. He appealed to the Sydney District Court, where the sentence was reduced to being placed on a s 10 Crimes Act bond (“s 10 bond”) for 12 months with no conviction being recorded. In 2015, he was convicted of Assault Occasioning Actual Bodily Harm. The second applicant was fined $1500.00 and placed on a s 9 bond to be of good behaviour for two years. In 2018, he was again convicted of Assault Occasioning Actual Bodily Harm and placed on a two-year community correction order which concluded in October 2020.
Both applicants have deposed to be the owners of two brothels, located in Surry Hills, Sydney. Both brothels have been the subject of inspections by Australian Border Force officials in 2022, checking on the visa status of workers and employees at the locations.
In July 2022, the applicants again applied for an RRV. In so doing they disclosed to the Department the fact that they had criminal convictions, or a finding of guilt without a conviction being recorded, in the second applicant’s case, as set out above.
Both applicants were granted the visas they sought within a few days of submitting their applications. Towards the end of 2022, each of the applicants travelled separately to Thailand, where they remain as of the date of this judgment. The first applicant states she travelled to Thailand for the purposes of undergoing medical treatment in October 2022 and was joined by her husband one month later, in November 2022. They had purchased return air tickets and intended to return to Australia on 1 December 2022.
While overseas, on 1 and 5 December 2022, each of the applicants received correspondence from the Department notifying them that their RRV had been cancelled under s 128 of the Migration Act 1958 (Cth) (‘the Act’). They had attended the airport on 1 December 2022, but were told they could not board their flight as they had no return visas to Australia. The 1 December 2022 email had no attachments. These were sent to them in the email of 5 December 2022.
The asserted basis for the delegate of the Minister cancelling the applicants’ RRV relates to answers given on previous incoming passenger cards provided by both applicants that they did not have criminal convictions. In the second applicant’s case, this related to incoming passenger cards in January 2016, January 2018 (twice), November 2019 and February 2020. In relation to the first applicant, this related to incoming passenger cards in May 2018, July 2019, December 2019, and November 2022.
The delegate concluded that they were satisfied there were grounds for cancelling the applicant’s RRV on the basis of non-compliance with s 102(b) of the Act, by giving incorrect answers in the incoming passenger cards as outlined above. In cancelling the applicants’ RRV, this deprived the applicants the right to return to Australia, notwithstanding they held Permanent Resident visas.
Both applicants sought a review of the decision of the delegate to cancel their RRV. On 6 June 2023, a Non-Revocation decision was made by a separate delegate of the Minister.
On 27 June 2023, the applicants filed an application in this Court seeking judicial review of first, the decision of the original delegate on 30 November 2022 to cancel the applicants’ RRV pursuant to s 128 of the Act and second, the decision of a second delegate on 6 June 2023 declining to revoke the cancellation pursuant to s 131 of the Act.
The matter was originally set down for final hearing on 6 October 2023. Around 4.30 pm on 5 October 2023, the Minister advised the legal representatives for the applicants that both delegates, at the time they made their decisions, had material before them, referred to as protected material, that had not been referred to in their decisions. That material had not been disclosed or provided to the applicants as part of pre-trial disclosure and was not included in the Court books filed with the Court. The failure to properly disclose this material does not reflect well on the Department. The final hearing had to be vacated as a result.
On 11 October 2023, the Court made orders that the material in the possession of the Respondent be made available to the applicants by 13 October 2023, and that the costs of the hearing that day be paid by the respondent.
Subsequently, some redacted documents were provided to the applicants.
On 18 October 2023, the respondent filed an Affidavit affirmed by Geoffrey Quinn, Acting Assistant Secretary of the Department of Home Affairs. That open Affidavit sought to claim Public Interest Immunity (‘PII’) in respect of some of the material held by the Department and that any material originating from AUSTRAC was protected by s 134 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The Court notes that material from AUSTRAC was subsequently not pressed to be produced by the applicants.
On 1 February 2024, a hearing was held in relation to a claim by the applicants for access to the confidential affidavit of Mr Quinn. That claim was unsuccessful (see: Hu and Chang v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 86).
On 16 February 2024, a further hearing was held to determine whether the claim for PII should be upheld in relation to the redacted parts of the documents that were provided. That further claim was unsuccessful; (see: Hu and Chang v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 169).
A further matter involved whether leave should be granted to enable the applicants to amend their Originating Application to include, as grounds of judicial review, claims of apprehended bias and procedural unfairness. Ultimately, leave was granted.
THE CANCELLATION DECISION FOR THE FIRST APPLICANT
The cancellation decision was completed by a delegate of the Minister. The decision sets out that on four occasions during 2019-2022, the first applicant completed incoming passenger cards in which she answered “No” to the question, “Do you have any criminal convictions?”. Information is then set out as to two criminal convictions for common assault, one in 2015 and one in 2019.
The delegate then found that grounds existed for the cancellation of the visa, as the first applicant did not provide correct answers on incoming passenger cards pursuant to her obligations under s 102(b) of the Act. As the first applicant was outside Australia at the time of the decision, the delegate found it was appropriate to cancel the visa pursuant to subdivision F and s 128 of the Act. In so doing, the delegate noted that the cancellation would have immediate effect and prevent her from seeking to re-enter Australia. It was also noted that the first applicant could seek to apply for a revocation of the cancellation decision.
The decision then turns to the exercise of residual discretion not to cancel the first applicant’s visa. It was noted that the commission of criminal offences was not in line with the purpose of any visa. This was given “little weight” in favour of cancelling the visa.
Further, there was no information before the delegate that the first applicant had not complied with the conditions of any of the six previous visas she had been granted. This was given little weight against cancelling the visa.
Under the heading “degree of hardship to be caused to the visa holder and any family members”, the delegate noted that the first applicant had been in Australia on various visas since 2012, but noted there was no information she had developed strong business, financial or other ties to Australia.
It was noted that the first applicant had sponsored both her parents and they now resided in Australia on permanent resident visas. Cancellation of her visa would prevent the first applicant from visiting her parents, however it would be open to them to visit her in China. This consideration was given some weight against cancelling the visa.
Under the heading “The circumstances in which the ground for cancellation arose”, it was concluded that the first applicant concealed her convictions to avoid scrutiny by an airport officer with the risk that her visa might be cancelled and the first applicant being refused entry to Australia. This factor was given significant weight.
Under the heading “Past and present behaviour towards the Department”, it was concluded that the first applicant had given false and misleading information on four occasions, demonstrating a pattern of behaviour. This factor was given significant weight.
The Court notes that there is no reference in the cancellation decision to the existence of any additional material that had been supplied to the delegate that may have formed part of his decision-making process.
Further, there was no acknowledgement that the first applicant had disclosed the convictions to the Department when she applied for her RRV, which was the subject of the cancellation decision, in July 2022.
THE CANCELLATION DECISION FOR THE SECOND APPLICANT
The cancellation decision for the second applicant follows a similar format as to that of the first applicant. The decision was also undertaken by the same delegate that assessed the first applicant. The ground for cancellation relates to false answers regarding criminal convictions on five incoming passenger cards during the period between 2016 and 2020.
In terms of the criminal convictions recorded against the second applicant these are set out on the third page of the decision. There are five entries, which are referred to as “convictions”. These include a charge of common assault heard at Manly Local Court on 4 December 2008.
The next entry relates to an appeal heard at the Sydney District Court on 12 February 2009, which both parties agree relates to the Manly Local Court matter, heard on 4 December 2008. That appeal resulted in the conviction imposed by Manly Local Court being quashed and in its place, without proceeding to a conviction, the imposition of a s 10 bond to be of good behaviour for a period of one year.
Both parties agree that any reference to five convictions is incorrect, as the common assault entries of 2008 and 2009 relate to the same matter. The District Court entry was an appeal against the conviction and/or severity of the penalty imposed by Manly Local Court. For the purposes of the consideration by the delegate, the Court is satisfied that the imposition of a s 10 bond must include a finding that the offence was found proven. In broad terms, this can be considered a conviction for the purpose being undertaken by the delegate, however there were only four matters not five as set out in the table, as there is a double counting of the first two matters.
The delegate was satisfied grounds existed for the cancellation of the second applicant’s visa. In considering the residual discretion not to cancel the visa, it was noted that the second applicant had committed two offences in Australia since being granted his Permanent Residency visa. It was not in line with the purpose of any visa for the holder to commit criminal offences. This was given a little weight in favour of cancellation.
It was noted there was no information that the second applicant had not complied with any conditions of his previous visas, noting he had held various visas from 2004. This was given little weight against cancelling the visa.
In terms of hardship, it was noted that the second applicant did not have “any children or other family members in Australia”. In the Court’s view this is incorrect as there is no reference to the first applicant’s parents who were in Australia. This factor was given “a little weight” against cancelling the visa.
The delegate gave significant weight to the circumstances whereby the second applicant did not provide correct answers to the question regarding criminal convictions on his incoming passenger cards to avoid scrutiny at the airport. This was given significant weight in favour of cancellation of the visa.
In terms of past and present behaviour towards the Department, the delegate concluded that the giving of incorrect answers on five occasions demonstrated a pattern of behaviour of providing false and misleading information to the Department. This was given significant weight in favour of cancellation.
Again, there is no acknowledgement at any point that the second applicant did disclose his convictions when he applied for his RRV, which the Department granted. Further and again, there is no reference to any additional or other material being supplied to the delegate that considered as part of the decision-making process.
The decision in relation to the second applicant has another matter that was considered, being two offences for which the visa holder was convicted (on 4 December 2009 and 12 February 2009) involving common assault relating to domestic violence. It was concluded that the second applicant’s two offences in relation to domestic violence were not in line with Australia’s values.
The Court, for the reasons set out above notes this conclusion was incorrect, there was only one domestic violence offence for which a conviction was not recorded. Such a finding, in the Court’s view, indicates that the offence was at the low end of the spectrum and there were significant mitigating circumstances that warranted no conviction being recorded. There is thus not only a mistake of fact relating to the number of convictions, there is also a lack of appreciation of why a conviction was not recorded. The Court considers this is a significant error, noting this factor was given significant weight in favour of cancelling the visa.
The Court notes however, there was discussion of the two subsequent convictions for Assault Occasioning Actual Bodily Harm which indicated the second applicant had demonstrated a capacity to inflict physical violence against persons in Australia. This was also given significant weight in favour of cancellation.
Both the initial cancellation and a subsequent decision not to revoke the cancellation decision are challenged in the proceedings. It is convenient to deal with the challenge to the cancellation decision separately to the non-revocation decision. If the challenge to the cancellation decision fails it will not be necessary to deal with the challenge to the non-revocation decision.
It is to be noted that Ground two in the first applicant’s application and Ground three in the second applicant’s application were not pressed.
GROUND ONE – JUDICIAL REVIEW OF THE CANCELLATION DECISION
Both applicants rely upon the following ground (as numbered in the Amended Initiating Application):
1.The decision under s 128 of the Act made on 30 November 2022 (the cancellation decision) was affected by jurisdictional error in that the Minister’s delegate failed to take into account mandatory relevant considerations or because the cancellation decision was otherwise irrational or legally unreasonable.
Particulars:
a. The circumstances in which the ground for cancellation arose included the fact that the visa to be cancelled – The Resident Return (Class BB, Subclass 155) visa was granted to the applicant with full knowledge of the applicant’s criminal history and its possible implications for the applicant’s character and the protection of the Australian community.
b. The Minister’s delegate was required to take account, but failed to take into account, those circumstances.
c. Alternatively to (b), the delegate’s failure to take into account those circumstances was irrational or legally unreasonable
d. The error was material.
CONSIDERATION
Ground One – The First and Second Applicant
On behalf of both applicants, it was submitted that in applying for the RRV, both applicants fully disclosed their criminal history. It is conceded that it was open to the Minister to consider refusing the visas on the basis of their criminal history pursuant to s 501(6)(c) of the Act with regard to past and present criminal or general conduct or that they were not of good character. It may be inferred, however, that the Minister, via his delegate, determined not to exercise that power and refuse both applicants their visas. The Court accepts this submission.
It was noted that the principal difference between subdivision E and subdivision F is that under the subdivision E procedure, the Minister must give the visa holder the opportunity to make submissions before the Minister considers cancelling the visa while the visa holder is onshore. Under the subdivision F procedure, the Minister is not required to give the visa holder notice of intention to cancel, but the Minister must give the visa holder the opportunity after the cancellation of the visa to make submissions to revoke the cancellation, while the former visa holder is and remains offshore. The power to cancel under s 128 of the Act is as follows:
Cancellation of visas of people outside Australia
If:
(a) The Minister is satisfied that:
a.there is a ground for cancelling a visa under section 116; and
b.It is appropriate (emphasis added) to cancel in accordance with this subdivision; and
(b) The non-citizen is outside Australia;
The Minister may, without notice to the holder of the visa, cancel the visa.
The nature of the power to cancel is not unfettered. The Full Federal Court stated in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [6] that in the case of the power to refuse a visa under s 510(1) of the Act, the “Minister may not act arbitrarily, capriciously or legally unreasonably” and the “subject, matter, scope and purpose of the Act may also require that certain considerations be taken into account”.
One of the considerations the Minister is obliged to have regard to in the context of a decision not to revoke a cancellation is the genuine human consequences of the decision; (see: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3]).
In AYY21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1961 (‘AYY21’), Judge Manousaridis of this Court, held at [55] – [56] and [59] – [60] that before cancelling a visa under the subdivision F procedure, the Minister must obtain and consider all information readily available to it that is relevant to determining whether it is appropriate to cancel the visa under the subdivision F procedure, including the practical and legal consequences of applying the subdivision F procedure instead of the subdivision E procedure.
AYY21 was followed by Judge Laing of this Court in CIW21 v Minister for Citizenship and Migrant Affairs [2023] FedCFamC2G 2 holding at [34] that:
However it does not follow that the scheme is necessarily inconsistent with any obligation upon the Minister to consider material that is readily available in the Department’s files and is of obvious, critical relevance to the exercise of a power under s 128, regardless of the circumstances… The cancellation of a person’s visa can have serious consequences for the individual in question, not all of which will necessarily be capable of remedy through s131.
In the Court’s view, these decisions are not plainly wrong, and this Court should follow them as a matter of comity. They do not require a roving inquiry by the Minister; (see: AYY21 at [33]).
The Court is satisfied that the existence of the disclosures by both applicants as to their criminal history was readily available to the Department. It was referred to in an email from Ms Cahir, Assistant Director and National Coordinator of the General Cancellations Network, dated 30 November 2022 which was before the delegate.
No mention of the disclosure of the previous criminal convictions is made by the delegate in their cancellation decisions at the residual discretion phase of their written decisions. The applicants submit that it was either overlooked or not obtained from the Department’s information system. The only other inference is that it was deliberately ignored. The Court notes no evidence has been provided from the Department as to this factual issue.
If it was not overlooked or not obtained, it is difficult to see how the delegate could have arrived at the conclusion that both applicants sought to “conceal their convictions” from the Department and thus “demonstrated a pattern of providing false and misleading information to the Department”.
While such a conclusion might have still been available, as the decision relates to actions by the applicants prior to their disclosures, it is difficult to contemplate that the fact of the disclosures would not be mentioned in the cancellation decision.
The Court does not accept the submission that the disclosures had no statutory effect. In the Court’s view, the disclosures were directly relevant to the question of the overall candour of the applicants with the Department and thus directly relevant to the question of the residual discretion not to cancel the visas, particularly while they were offshore using the subdivision F procedure and thus preventing their entry back into Australia.
The Court is of the view that the decision of the delegate overlooked matters that were of critical importance and thus involves jurisdictional error.
Ground one has merit in relation to both applicants.
Whilst the above finding is sufficient to dispose of the matter in the applicants’ favour, in case the Court is wrong, it is appropriate to go on and consider each of the additional grounds pressed by the applicants.
Ground Two – The Second Applicant
This ground relates to the second applicant only and is based on the conceded error by the delegate in his consideration of the criminal record of the second applicant, where the delegate found that the second applicant had been convicted of four offences, two of which involved domestic violence. As set out above, there were two convictions for Assault Occasioning Actual Bodily Harm and a further finding of guilt, but no conviction recorded, in relation to a charge of a domestic violence related assault.
The applicant submits that the finding by the delegate that the second applicant had been convicted of four offences is legally unreasonable in that there is “no logical connection between the evidence and the inferences or conclusions drawn” relying upon Gordon J in Plaintiff S183/2021 v Minister for Home Affairs (2022) 399 ALR 644 at [43].
The delegate placed considerable weight on the erroneous findings, referring to them extensively in the exercise of his residual discretion not to cancel the second applicant’s visa. It was submitted the error is sufficient to reach the threshold of materiality, as the outcome could have been different had the errors not been made “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined” (see: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at [38]).
The respondent submits that the admitted error is not jurisdictional. The finding that the applicant was convicted of four offences was not a critical step in the delegate’s ultimate conclusion (see: Minister for Immigration and Multicultural and Indigenous Affairs v SLGB (2004) 78 ALJR 992 at [39]).
The reality is that while no conviction was recorded, there was a necessary finding of guilt before the applicant could be released on a s 10 bond. That is the second applicant committed a domestic violence related assault. The Court is not satisfied that the factual error was so material that a different result could have eventuated but for the error. The delegate was entitled to find that the second applicant had committed a domestic violence related assault. If the second applicant did not have the other two convictions for Assault Occasioning Harm, the Court may have been persuaded that the error was material. The Court is not so satisfied. This ground has no merit.
Ground Five – The First Applicant and Ground Six – The Second Applicant – Apprehended Bias by both Delegates
This ground relates to both the cancellation decision and the non-revocation decision. The test for apprehended bias is well understood. It was most recently stated by Kaye AJ in Drumgold v Board of Inquiry (No 3) [2024] ACRSR 26 (‘Drumgold’) at [218] in the following terms:
1) In a case in which apprehended bias is alleged, the applicable test is whether a fair minded lay observer might reasonably apprehend that the decision-maker might not have bought an impartial mind to the resolution of the question, which this decision-maker is required to determine.
2) So defined, the test involves an assessment of possibility on two levels:
(a)the question of whether a fair minded lay observer might entertain the material apprehension concerning the decision-maker;
(b)the requirement that that apprehension, by a fair minded lay observer, is that the decision-maker might not bring an impartial mind to the resolution of that question.
3) Accordingly, no prediction by the court is involved in determining whether the decision-maker might not have bought an impartial mind to bear…
…
6) The hypothetical fair minded lay observer is assumed to know and understand both the nature of the proceeding, and the material objective facts that relate to the processes undertaken by the decision-maker.
7) The application of those principles involves three steps in the present case:
(a)the identification of the fact or circumstance which it is said might have led the first defendant to decide the issues before it other than on their merits;
(b)there must be demonstrated a logical connection between that fact and the circumstances, and the apprehended deviation from the course of determining the issues before the board of enquiry on their merits:
(c)the assessment of the reasonableness of that apprehension from the perspective of the fair-minded lay observer.
The above approach accords with the decision of the High Court in Charisteas v Charisteas [2021] HCA 29 at [11]:
Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
The applicants put this apprehended bias case on two different (but overlapping) bases. First, views conveyed by the delegate’s superiors as to the desired outcome of the decisions and second, prejudicial extraneous material.
In relation to the first basis, the following internal emails are relied upon and relate to the period of 29 and 30 November 2022, immediately prior to the cancellation decision being made, noting the applicants were due to return to Australia by air on 1 December 2022. They are as follows:
(a)Ms Antoniou email to Ms Cahir of 12:08 PM on 30 November 2022, where she said: “[g]iven the applicants both have criminal convictions that they have not declared on their IPC’s, (and I am not sure about RRV applications given my lack of system access) I’d be very grateful for advice on whether we can meet the deadline and disrupt [Mr Chang’s and Ms Hu’s] travel through a cancellation under s116” (emphasis added). At that time, Ms Antionou was a CACB representative on the Fusion Team, which is part of the Status Resolution and Visa cancellation Division. Ms Cahir was an Assistant Director and National Co-ordinator of the General Cancellations Network.
(b)Mr Hadchiti’s email to Mr Morrish of 1.43pm on 30 November 2022 in which Mr Hadchiti forwarded Ms Cahir’s email and said “[i]f grounds exist, we will be finalising and actioning (emphasis added) under s128 of the Act”. At that time, Mr Hadchiti was the Director of the General Cancellations Network and Mr Morrish was the Assistant Secretary, Character and Cancellations.
(c)Ms Cahir’s email to Ms Lyons (who was also an Assistant Director and the General Cancellations Network) where Ms Cahir said, after observing that the applicants had been referred to the General Cancellations Network. “Can we ensure that we include a reference to s106 given VH failed to declare convictions on IPCs but had provided AFP Certs with RRB applications which showed convictions”. Ms Cahir also referred to allocating the matter to Warren. The reference to ensure the inclusion of a reference to s106 could only have envisaged that the relevant delegate (Warren) was going to be exercised in the power conferred by s 128 to cancel the applicants Visa and thus producing a notice of cancellation under s 129.
It was submitted that there would otherwise be no occasion to “include a reference” to that provision. The delegate did indeed duly make a reference to s 106 in that document (see CB 13). It was submitted that the inescapable impression conveyed by these communications was that it was the strongly held view of those holding senior positions in the Department (including the immediate supervisors of the delegates), that “if grounds existed” the cancellation power should be exercised very quickly and without notice so as to “disrupt the travel” of the applicants.
The impression conveyed to the delegate was that it was the view of those senior persons within the Department that the decisions to be made under ss 128 and 131 of the Act should be exercised in a manner adverse to the interests of the applicants (i.e. cancellation and refusal to revoke):
(a)regardless of whether the consideration discretionary matters suggested there should be no cancellation; and
(b)regardless of whether there existed “another reason” by the cancellation should be revoked.
Mr Hadchiti’s email further conveyed to the delegate that any cancellation decision was to be made under s 128 of the Act, rather than subdivision E (which would have given the applicants’ prior notice of the intention to cancel the visa). The determination as to which procedure was to be used, was, of course, a matter for the delegate, not Mr Hadchiti.
It was further submitted that the documents before the delegate also conveyed:
(a)the apparent reasons for those views – being that the applicants were involved in some form of serious international criminal enterprise;
(b)the impression that those views had reached the very highest levels of the Department (Mr Morrish).That this seemingly was not replied to indicates that he didn’t have “any issues” with the proposed approach identified by Mr Hadchiti; and
(c)the need to act very hastily to implement that approach, giving the looming arrival of the applicants (described by Ms Antoniou as “meet[ing] the deadline”).
It was submitted that it may be that such matters give rise to an inference that the delegates acted under the (unlawful) direction of their superiors (see: ARJ17 v Minister for Immigration and Border Protection (2018) 257 FCR 290). It is, however, necessary to consider the more factually challenging ground because regardless of whether the delegates in fact acted on those communications, the facts and circumstances give rise to reasonable apprehension of bias.
It was submitted that there are broad similarities between Drumgold in that it might be reasonably apprehended that the decision-maker was compromised by private communications (noting that the material in issue here was not revealed until well after the decision-making process) and was with a person who can be perceived to have a role in advocating for particular position of the matter before the relevant decision-maker. In the case of Drumgold those communications were with the journalist that expressed strong views adverse to Mr Drumgold in a series of newspaper articles.
In this case, the concern is exacerbated. The delegates were each dealing with private communications, the conveyed views of those who held relatively high positions in the Department. The delegates were relatively junior APS 5 officers. The proposition that views expressed by those higher up in the departmental hierarchy might be significant (if not decisive) to decisions to be made by relatively low-level employee is a matter of obvious common sense.
In response, the Minister submitted that the correct test is not in doubt, rather the application to the circumstances of the current case. First, reliance was placed on CNY17 v Minister for Immigration (2019) 268 CLR 76 (‘CNY17’) at [19] where the following was said:
The purpose of combining the “fair mindedness” of the hypothetical lay observer with the “reasonableness” of that observer’s apprehension is to stress that the appearance or nonappearance of independence and impartiality on the part of the authority. Be determined from the perspective of a member of the public who is “neither complacent nor unduly sensitive or suspicious”. Together they emphasise that “the confidence with which the [Authority] and its decisions ought to be regarded and received may be undermined, as much as may confidence in the courts of law, by suspicion of bias reasonably – and not fancifully – entertained by responsible minds.
It was submitted that there was no contest that various members of the Department had expressed views regarding the applicants. Some are higher in the hierarchy of the Department. What was not clear was the role they had, supervisory or otherwise with the relevant decision-makers.
It was submitted that what a lay observer would see, is a number of APS employees, some higher in the Department, expressing views as to what was happening. These views however were qualified, for example “if grounds exist – will do so under s 128”. It was submitted this was not expressing that the matter was a fait accompli. Further, it is not clear what material was in fact before the delegate. As a matter of evidence, the applicants cannot say that the impugned material was in fact before the delegate. It was submitted that nothing turns on the fact that the material is not referred to in the decision. The Court agrees with this submission in so far as it relates to the emails set out.
In relation to the last submission, it was of course open to the Minister to clarify precisely what evidence was before the delegate, including the impugned material. They have not done so. What is clear is that the decision to cancel was undertaken very quickly, pursuant to s 128 of the Act rather than subdivision E, in circumstances where the delegate, duly made reference to s 106 in that document. This supports an inference that the delegate had access to the email documents outlined above. It also plausible that the delegate acted in accordance with those instructions. The Court does not however, make such a finding. It is not necessary to do so.
Applying the three-stage test outlined in Drumgold, The Court finds as follows:
(a)Material was before the delegates that indicated the views of more senior officers within the Department to the delegates, that a decision adverse to the applicants was to be made if grounds under s 116 of the Act were found to exist. These views necessarily involved that any discretionary decision would be exercised against the applicants. It was also Mr Hadchiti’s view that any decision was to be made under s 128 of the Act rather than subdivision E if grounds existed. Further, Ms Cahir stated in her email to Ms Lyons of 30 November 2022 the following with respect to which delegate should consider the cancellation process, “Shall I allocate to Warren?”. There is an available inference from this communication that Warren (the delegate) would be able to make a decision that accorded with Ms Cahir’s views as to the cancellation of the applicants’ visas.
(b)The Court is satisfied that the placing of this material before the delegates would lead a fair-minded observer, fully appraised of all the facts and circumstances, and not unduly suspicious, to conclude that the communications indicated a decision was to be made adversely to the applicants, provided one of the grounds in s 116 of the Act was found to exist. Of necessity, this meant that any discretionary grounds for not cancelling the visa would be decided against the applicants.
(c)The Court is satisfied that there was an obvious connection between the circumstances set out above, and the apprehended deviation from the course of deciding the issues on their merits, due to the strong views expressed by the more senior people within the Department to the delegates that went directly to the very factual and legal issues they had authority to decide. The Court is satisfied that those views may have influenced the delegate’s decision either consciously or subconsciously such that they may have deviated from deciding the cases on their merits.
(d)The Court is satisfied that a fair minded observer, acquainted with the material objective facts outlined above, might reasonably apprehend that either Warren, or the delegate in respect of the Non-Revocation decision, who the Court is satisfied also had access to the material, might have been influenced in determining those issues on the basis of the privately communicated views of their superiors.
On this analysis, the Court is satisfied that the ground of apprehended bias is made out. It is also necessary however, to deal with a secondary claim of apprehended bias that relates to the provision of prejudicial extraneous material to the delegates.
This material, which is the subject of a successful PII claim, is contained in a redacted form in the affidavit of Mr Liang, solicitor for the applicants in his Affidavit of 19 October 2023.
The applicants submit that this material was significantly prejudicial to the applicants in that reference was made to “specific offences, including legislative reference and penalty”. An email attaching the Passenger Name Records (‘PNR’) states that:
This PNR data may only be used for the purpose for which it was provided of preventing, did detecting investigating and prosecuting Terrace offence or serious transnational crime.
It is conceded by the Minister that the material relates to “current and future law enforcement activities” and contains information about the applicants. The Minister submitted that an inference can be drawn that, in those circumstances, the material concerns allegations of serious criminal activity with which the applicants are alleged to have some connection. It was further submitted that the material could not relate to the offences which the applicants had failed to disclose in the incoming passenger cards, which was the basis used by the delegate to cancel the applicants’ visas. It was submitted that this material was clearly relevant to the decision made by the delegate, to cancel the applicants’ RRV and by another delegate of the Minister (‘delegate two’) to not revoke the cancellation decision.
The applicants rely on CNY17 at [92] – [93] and [100] where the following was said per Nettle and Gordon JJ:
[92] What might lead the RAA to decide the appellant’s case otherwise than on its merits? The presence of prejudicial material which was irrelevant to the question before the IAA and which the IAA was mandated to consider. As Dean J said in Webb at [108] “knowledge of some prejudicial but inadmissible fact or circumstance (may give) rise to (an) apprehension of bias. Is there a logical connection between this and the feared deviation from deciding the case on its merits? Yes. The material was not relevant to the IAA’s task. If it influenced the IAA, whether consciously or subconsciously, then the IAA would deviate from deciding the case on its merits.
[93] In the light of this, might the fair-minded lay observer apprehend a lack of impartiality? Yes. This conclusion is largely a factual one (109) it is therefore necessary to consider the facts of the case in the light of the statutory context (110).
…
[100] …A fair-minded lay observer might well ask why prejudicial information is provided and hidden from the applicant if that information was not to be taken into account. In those circumstances, the fair-minded lay observer might apprehend that the decision maker might decide the case other than on its merits.
In terms of the facts in this case, the Court is satisfied that the material was provided to both the delegate who made the Cancellation decision and delegate two in respect of the non-revocation decision. The Court is satisfied that the material was prejudicial to the applicants. The Court is satisfied that the material was hidden from the applicants and only belatedly disclosed the day before a final hearing of the matter, which had to be adjourned as a result of the disclosure. At no stage in the proceedings were the applicants asked to comment on the adverse material so as to counteract any apprehension of bias. Nor was there any clear indication in both the original decision to cancel and the subsequent non-revocation decision that the decision was based solely on the basis of the failure to declare convictions on the incoming passenger cards and not on any other material.
Given that these convictions were subsequently declared, and the RRV were granted notwithstanding the declarations, it is difficult to see how the material could not have either consciously or subconsciously influenced the decision-makers to make a decision adverse to the applicants.
The Court does not accept the Minister’s submission that the material was not objectively irrelevant to the task before the decision makers. The claimed sole basis for the cancellation decision was the failure to declare the convictions on the incoming passenger cards. The visas were not cancelled under the character grounds provided under s 501 of the Act.
The Court does not accept the claim that the Court, on the basis of the redacted information provided to the Court, is required to speculate as to what the material contained.
PNR is restricted and can only be provided for the purposes set out above. The provision of this information involves either terrorism offences or serious transnational crime. The latter term is described as an offence punishable in Australia by a term of imprisonment of at least four years.
On this basis, given information was provided upon request, the Court is objectively satisfied that the material was prejudicial to the applicants. The Court does not accept that it was, as submitted by the Minister, somewhat prejudicial or not prejudicial at all.
In the factual circumstances of this case, the Court is satisfied, based on CNY17, that a fair-minded lay observer would apprehend that the material might impact either consciously or subconsciously on the decision-maker to decide the case other than on its merits. In so doing, the merits related to whether or not it was appropriate, to cancel the applicant’s RRV and for that initial decision to be affirmed in the subsequent non-revocation decision.
Accordingly, this aspect of the ground is also made out.
Ground 6 – in the First Applicant’s application and Ground 7 in the Second Applicant’s application – the Non-Revocation decision – Denial of Procedural Fairness
This ground is in the same terms for each applicant and is related to the previous ground. In the alternative, it is pleaded that in making the non-revocation decision, the applicants were denied procedural fairness by not being put on notice of the nature and content of the allegations of serious criminal activity.
This ground is put on the alternative basis that, contrary to the above, the prejudicial material was relevant to the non-revocation decision. Reliance is placed on Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (“VEAL”) at [14] where it was said:
…as procedural fairness is directed to the obligation to give the applicant a fair hearing, it is necessary to begin by looking at what procedural fairness required the tribunal to do in the course of conducting its review.
Their Honours went on to identify two key propositions stated by Brennan J in Kioa v West (1985) 159 CLR 550 (“Kioa”) at 628-629 at [15]:
…The first proposition was that “in the ordinary case where no problem of confidentiality arises an opportunity should be given to do with adverse information that is credible, relevant and significant to the decision to be made”; the second proposition was that “information of that kind creates a real risk of prejudice, albeit subconscious, and is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information”.
The principles of procedural fairness focus on procedures rather than outcomes. They focus on what a decision-maker must do in the course of deciding how a particular power given to them is to be exercised. That in turn has implications for the timing of any consideration of whether material is credible, relevant or significant. It means that what is “credible, relevant and significant” information must be determined by a decision-maker before the final decision is reached.
It was submitted that any reliance by the Minister on Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 183 (“SZSSJ”) and MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 (“MZAPC”) as diminishing what was said in VEAL is incorrect.
In SZSSJ, the Court affirmed the principal from VEAL holding at [83]:
Ordinarily, affording a reasonable opportunity to be heard in the exercise of the statutory power to conduct an enquiry requires that a person whose interest is apt to be affected to be put on notice of: the nature and purpose of the enquiry; the nature and content of the information that the repository of power undertaking the enquiry might take into account as a reason for coming to a conclusion adverse to the person (59). Ordinarily, there is no requirement that the person be notified of information which is in possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the enquiry.
At footnote 59, the Court made specific reference to VEAL at [14] – [17] explaining Kioa at 629.
It was submitted that, absent any anterior decision not to take the material into account at all, material that is credible, relevant and significant in the sense identified in VEAL is material by definition that “might” be taken into account as a reasonable coming to the conclusion adverse to the person. In SZSSJ, the repository of power had chosen not to take into account that material at all during the conduct of the enquiry. In this case, there is nothing from which one could draw an inference that any such anterior choice had been made in the current case. Indeed, the fact that the material was seemingly supplied to both decision makers points the other way: this suggests there was an ongoing view within the Department that the material was of some importance to the issues to be decided, even if it was not ultimately expressly referred to in its reasons.
There is nothing in the current case to suggest that the material was not credible or significant. Even if there were limits as to what could have been conveyed to the applicants, at least the material that was belatedly conveyed could have been provided.
The respondent contented that first, the redacted information is not known to the applicants and is not evidence. As a result, the applicants cannot describe what it is that they were not given an opportunity to respond to.
Second, there is nothing in the reasons for decision of the non-revocation delegate that suggest the redacted information was taken into account. A denial of procedural fairness will not be material unless it can be shown by the affected person that the decision-maker took into account the information the substance of which was required to be disclosed; (see: MZAPC at [73] – [74]).
Third, as conceded by the applicants, there is nothing they can point to in the evidence before the Court to show that there was not an “anterior decision not to take the material into account at all in the conduct of the enquiry”. The delegate was under no obligation to record in the statement of reasons, which were voluntarily given, the fact of their having made an anterior decision of the kind which the applicant submits is required in VEAL.
Fourth, given the nature of the redacted information, the content of any obligation on the part of the non-revocation delegate to afford procedural fairness to the applicant was, in practical terms, “reduced to nothingness” (see: Disorganised Developments Pty Ltd v South Australia (2023) 97 ALJR 575 at [63] per Steward J). Any obligation to afford procedural fairness could not have involved disclosure of the detail of the redacted information. In any event, even if the delegate describes the redacted information as the applicants had in the penultimate sentence of their submissions at [46] they could not have responded in meaningful terms.
The above represents a considerable tension between the rights of the applicants to know even at the highest level, adverse material that will form part of the consideration by the repository of power as compared to the need for certain information to be kept confidential as the reasons set out in the PII decisions in this matter.
By way of analogy, where there has been information provided by an informant to the Department, that may form part of the decision-making process, applicants are either advised that the information will not form part of the decision-making process or will be provided with “the gist” of the information such as to allow them to respond as best they can.
If the material was not to be taken into account, in that it was not relevant to the decision, then it should not have been provided to the decision-maker. If it was to be taken into account (and in this case because there is no either acknowledgement that has or has not been) the applicants have been left in the situation whereby, as at the date of the decision, they had no knowledge of any additional information or what was contained in it. The applicants were aware that they were under some adverse notice by Australian authorities, as they acknowledged to the Court that the two brothels they owned and operated had been visited by Australian authorities on the basis that the authorities were checking on the visa status of both employees and workers at the establishments.
A balancing exercise in these circumstances needs to occur. In the Court’s view, where the information that has been supplied to the decision-maker is such that least some reference to “the gist” of it can be made, then the dictates of procedural fairness require at least some disclosure of the information in order to allow the applicants to respond to it in such a manner as they can.
Where the information cannot be disclosed, even at a very high level, due to its sensitivity, there is thus a requirement for a decision to be made as to whether not the information will be provided to the decision-maker or not.
In this case, it is suggested that the confidential information was not relevant to the outcome as it relied solely upon the non-provision of criminal convictions in the incoming passenger cards. If that was the case, then in the Court’s view, a decision should have been made not to provide the information to the relevant decision-maker, being delegate two. If it was provided, and the delegate made a decision not to take into account, this should have been acknowledged in the reasons.
If it was taken into account in the decision-making process, it should have been included in the reasons stating that there ought to be an acknowledgement that certain material could not be provided to the applicants due to its sensitivity.
In these circumstances, taking into account the decisions in Kioa and VEAL, the Court is satisfied that there has been a denial of procedural fairness and the ground of judicial review must be upheld.
Ground Three in the First Applicant’s application and Ground Four in Second Applicant’s application: the Non-Revocation decision - Failure to Read, Identify, Understand and Evaluate relevant evidence in support of the revocation request
This ground is in identical terms for both applicants. The ground is centred on the medical evidence provided by a psychologist (in a report dated 10 March 2023), that the first applicant had a significant decline in mental health such that “she would require urgent pharmacological and psychological intervention; and there are grave concerns about her suicidal ideation as Ms Hu has a solid plan to end her life; and… due to the serious nature of Ms Hu’s mental health, she requires access to her family in Australia”.
The Minister’s delegate acknowledged the “serious mental health concerns” that arose in respect of the first applicant and that the decision may cause “some hardship… To the former visa holder and his wife”. It was submitted however, that the delegate did not confront or evaluate the evidence which was to the effect that the consequence of the decision may be the first applicant’s death by suicide.
The Minister’s delegate also found they only had “limited information before [them] concerning the circumstances of the applicant’s offending” being a matter to which they had regard.
It was submitted that this was in circumstances where the psychological report set out the circumstances of the criminal convictions and that the first applicant and her husband were confronted with a threatening commercial opposition causing her husband to retaliate to protect themselves, their staff and business. It was submitted that the delegate failed to consider, when making a finding, that the limited material which they did have regard to went against the revoking of the cancellation.
The applicants rely upon Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [25] as to the length, clarity and degree of relevance of the representation as factored in the requisite level of engagement. If the representation has a central and prominent role in the applicants claim, then it needs to be given a commensurate level of consideration. The obligation to take matters into account also carries recognition of the fact that there must be “real consideration of the circumstances of the people affected…Confronting what is being done to people” (see: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3] per Allsop CJ).
The Court is satisfied that the psychologist, Dr Cantali, in her reports set out serious concerns as to the impact on the first applicant if she was unable to go home to Australia. The delegate concluded that the first applicant had been engaging in mental health support and would continue mental health support from Dr Cantali or any other psychologist or medical professional they wish to receive support from to alleviate the mental hardship caused by the visa cancellation. The delegate went on to state that they acknowledge that high-quality mental health support may be more difficult to secure in Thailand but that it was not beyond the means of the applicants to engage local health services.
The Court is not satisfied that the above can be said to be a failure to engage at an active intellectual level with the evidence that was before the delegate. The material was not overlooked, nor does it require a discussion of every aspect of that material and the weight to be given to any particular items of evidence. The delegate was aware of the mental health concerns of Dr Cantali, acknowledged the hardship, but in the Court’s view, was reasonably able to conclude that the first applicant would be able to access appropriate mental health support in Thailand. This aspect of the ground of judicial review has no merit.
The second aspect of the complaint concerns an alleged failure by the delegate to engage with the circumstances surrounding both applicants’ criminal convictions. The delegate noted that they only had limited information concerning the circumstances of those convictions. It consisted of a description by Ms Cantali of the background to the convictions as relayed to her by the applicants.
It was open to the applicants to provide as much information as they wished in relation to the background to the criminal convictions. No information by way of police facts sheets or sentencing remarks by the relevant judicial officer was provided. This material and the matters that it related to, were not of such importance, nor was there any obligation on the delegate, to seek further information. The delegate correctly noted that the information that had been provided was limited. In the Court’s view, the delegate engaged in an active intellectual consideration of the limited material that was made available. If anything, this ground is merely seeking the Court to engage in impermissible merits review and constitutes vehement disagreement with the conclusions reached by the delegate. This aspect of the ground of judicial review also has no merit.
DISPOSITION
As some grounds of judicial review have been found to have merit, accordingly, the Court will grant the relief sought in the initiating applications. The Court will hear from the parties as to costs.
I certify that the preceding one hundred and twenty-seven (127) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 3 May 2024
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