Minister for Home Affairs v Hunt

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FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Hunt [2019] FCAFC 58

Appeal from: Hunt v Minister for Immigration and Border Protection (No 2) [2018] FCA 1581
File number: WAD 497 of 2018
Judge: MCKERRACHER, PERRY AND BANKS-SMITH JJ
Date of judgment: 11 April 2019
Catchwords:

MIGRATION – appeal from a single judge of this Court – where the primary judge granted the application for extension of time – visa cancelled on character grounds pursuant to s 501(2) of the Migration Act 1958 (Cth) – whether the primary judge erred in finding the Minister’s decision was tainted by jurisdictional error –whether the Minister failed to have regard to the suspended nature of the sentences – appeal allowed

MIGRATION – whether primary judge erred in holding that the respondent’s criminal record was regularly obtained – whether criminal record was obtained by Department in breach of Information Privacy Act 2009 (Qld) (Queensland Privacy Act) – whether Queensland Privacy Act applied to Commonwealth officer – whether any breach of Queensland Privacy Act would render Minister’s decision invalid – whether the discretion to exclude evidence under s 138 of the Evidence Act 1995 (Cth) applied to the Minister in making the decision – notice of contention dismissed
Legislation:

Evidence Act 1995 (Cth) s 138

Migration Act 1958 (Cth) ss 501(2), 501(2)(a), 501(2)(b), 501(6), 501(6)(1)(e), 501CA(4)

Privacy Act 1988 (Cth) s 2A, 3, 5, 6, 6B(1), 6C(1), 6C(3), 11, 26A, 26C, Div 2, Pt IIIB

Information Privacy Act 2009 (Qld) s 12

Cases cited:

Bunning v Cross (1978) 141 CLR 54

Fox v Percy (2003) 214 CLR 118

Hooton v Minister for Home Affairs [2018] FCAFC 142

Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1

Martin v Medical Complaints Tribunal (2006) 15 Tas R 413

Minister for Home Affairs v Buadromo (2018) 362 ALR 48

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116

Warren v Coombes (1979) 142 CLR 531

Date of hearing: 5 February 2019
Date of last submissions: 7 February 2019
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 93
Counsel for the Appellant: Mr PM Knowles
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the Respondent: Dr JL Cameron (Pro Bono)

ORDERS

WAD 497 of 2018
BETWEEN:

MINISTER FOR HOME AFFAIRS

Appellant
AND:

LANCE JEREMY VERNON HUNT

Respondent

JUDGES:

MCKERRACHER, PERRY AND BANKS-SMITH JJ

DATE OF ORDER:

11 APRIL 2019

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The notice of contention be dismissed. 

3.In lieu of the orders of Barker J made on 19 October 2018, the application for judicial review be dismissed.

4.The respondent pay the appellant’s costs of this appeal and the costs of the hearing below, to be…

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Details
Case
[2019] FCAFC 58
Decision Date

CaseChat Overview and Summary

The Minister for Home Affairs appealed against the decision of a single judge of the Federal Court to grant an extension of time to Mr Hunt, a New Zealand national, to seek judicial review of the Minister’s decision to cancel his visa on character grounds under section 501(2) of the Migration Act 1958 (Cth). The primary judge had quashed the Minister’s decision and the Minister sought to appeal this decision. The appeal was allowed and the notice of contention was dismissed.

The legal issues before the court were whether the primary judge erred in finding that the Minister’s decision was tainted by jurisdictional error, specifically by failing to regard the suspended nature of Mr Hunt’s March 2003 convictions, and whether the Minister’s decision was based on evidence obtained in breach of the Information Privacy Act 2009 (Qld). The court also considered whether the Queensland Privacy Act applied to Commonwealth officers and if a breach would render the Minister’s decision invalid. Additionally, the court examined whether the discretion to exclude evidence under section 138 of the Evidence Act 1995 (Cth) applied to the Minister in making the decision.

The court found that the primary judge erred in quashing the Minister’s decision. The court held that the Minister did not commit jurisdictional error by failing to regard the suspended nature of Mr Hunt’s March 2003 convictions. The court emphasised that the critical issue was whether the Minister actually had regard to the fact that the sentence was suspended, and not what he may have read or considered. The court also dismissed the argument regarding the breach of the Queensland Privacy Act, finding that the Commonwealth Privacy Act applied to the Department’s actions, and any breach would not invalidate the Minister’s decision. The court further held that the discretion to exclude evidence under the Evidence Act did not apply to the Minister in making the decision.

The court allowed the Minister’s appeal and dismissed the notice of contention. In lieu of the orders made by the primary judge, the application for judicial review was dismissed. The respondent was ordered to pay the appellant’s costs of the appeal and the costs of the hearing below, to be assessed if not agreed.

Orders

Orders of the court

1. The appeal be allowed.

2. The notice of contention be dismissed.

3. In lieu of the orders of Barker J made on 19 October 2018, the application for judicial review be dismissed.

4. The respondent pay the appellant’s costs of this appeal and the costs of the hearing below, to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The primary judge quashed the Minister’s decision after allowing an extension of time for the lodging of Mr Hunt’s application for judicial review. The Minister appeals. For the reasons which follow, the appeal must be allowed and the notice of contention dismissed.BACKGROUND Mr Hunt is a New Zealand national who arrived with his parents in 1993 as an 8 year old child. Since his arrival he has held a Class TY Special Category (Temporary) visa. His convictions in the District Court of Queensland of two counts of indecently dealing with a child under 12 years were in March 2003 (the March 2003 convictions). From that time, both as a minor and as an adult, Mr Hunt was convicted of relatively minor offices including public nuisance, fare evasion on public transport and failing to comply with reporting obligations under Queensland child protection laws in respect of the March 2003 convictions. He received fines for those offences. In 2010, once again, Mr Hunt was convicted of failing to comply with child protection reporting obligations and sentenced to a term of imprisonment of four months. This term was also suspended for 18 months. Between 2013 and 2016, Mr Hunt received fines for a number of driving offences. In February 2017, nearly 14 years after the March 2003 convictions, the Department for Immigration and Border Protection (as the Department then was) sent Mr Hunt a “Notice of intention to consider cancellation of your visa under s 501(2) of the Migration Act 1958”. Unfortunately, no steps were taken by Mr Hunt to respond to the Notice despite the invitation to make representations as to why his visa should not be cancelled. On 17 May 2017, in the absence of any response, the Department sent the Minister a submission inviting him to personally consider whether to cancel Mr Hunt’s visa on the basis that he did not pass the character test pursuant to s 501(6)(e) of the Migration Act 1958 (Cth). The Minister decided to exercise his discretion under s 501(2) of the Migration Act to cancel Mr Hunt’s visa on the basis that he reasonably suspected that Mr Hunt did not pass the character test and that Mr Hunt had not otherwise satisfied him that he did pass that character test. Mr Hunt received from the Department a “Notice of Visa Cancellation” in July 2017 and was placed into immigration detention. On 25 August 2017, without representation, he filed in this Court an application for an extension of time within which to apply for judicial review of the Minister’s decision to cancel his visa. He was 10 days out of time, which is not unusual considering that he was transferred from Yongah Hill Immigration Detention Centre in Northam, Western Australia, to Christmas Island Immigration Detention Centre. Representations were made on behalf of Mr Hunt with the assistance of a pro bono lawyer, Dr Cameron, who has generously assisted Mr Hunt since that time. The Court appreciates Dr Cameron’s professional service. Mr Hunt’s application was amended. It stressed three major matters:(1)first, that the initial decision was based on evidence of his criminal record which had been unlawfully or improperly obtained on behalf of the Minister;(2)secondly, that the Minister’s refusal to revoke his decision gave no adequate reasons and failed to take into account relevant considerations and was irrational and unreasonable;(3)thirdly, in failing to take into the account the fact that the March 2003 convictions had been wholly suspended for two years, the Minister failed to take into account a relevant consideration, made an illogical, irrational and unreasonable decision and fell into jurisdictional error. THE MINISTER’S REASONING

Evidence

Evidence Before The Court

The Minister opposed Mr Hunt’s application for an extension of time only on the basis that the merits of the substantive application did not warrant an extension of time. His Honour allowed the extension of time after a consideration of the substantive merits. Ground 1 – did the Minister’s decision lack jurisdiction on the basis that he relied on evidence of Mr Hunt’s criminal record obtained without consent? In dealing with this, the primary judge described the particular issue as whether there had been a breach of the Australian Privacy Principles (APP) made under the Privacy Act 1988 (Cth) (the Commonwealth Privacy Act), having regard to:·the manner in which the Department requested and obtained a copy of Mr Hunt’s criminal record from the Queensland Police Service on 14 and 15 September 2016; and ·the Department’s request to the AFP on 22 September 2016 for a National Police Check in relation to Mr Hunt and the AFP’s provision of a National Police Certificate to the Department in response to that request. His Honour said a further issue also appeared to arise, namely, if there was a breach of the APP by an officer of the Department in relation to either of the requests for information as to Mr Hunt’s criminal record, whether any such breach was relevant to the validity of the Minister’s decision to cancel Mr Hunt’s visa. The primary judge recorded the submissions of both the Minister and Mr Hunt in relation to the “first breach issue” (as his Honour described it) before commencing consideration of this privacy ground. His Honour noted that the Commonwealth Privacy Act is designed to effect the regulation of privacy and the handling of personal information before detailing the objects of the Commonwealth Privacy Act as set out in s 2A. His Honour noted that Div 2 of Pt IIIB deals with codes of practice about information privacy, called APP codes. The act of “interference with the privacy of an individual” is mentioned by the Commonwealth Privacy Act. The breach of a registered APP code is also mentioned by the Commonwealth Privacy Act. By s 6B(1), an act or practice breaches a registered APP code if, and only if, it is contrary to, or inconsistent with, the code. An “organisation” to which the Commonwealth Privacy Act may apply, by s 6C(1), does not pick up a State or Territory authority or a prescribed instrumentality of a State or Territory. By s 6C(3), a “State or Territory authority” is defined to include a Minister, a Department of State and a body established or appointed for a public purpose or under a law of a State, with some exceptions. His Honour noted that s 26A provides that an APP entity must not do an act, or engage in a practice, that breaches a registered APP code that binds the entity. Section 26C states what an APP code is. However, the primary judge noted that the Commonwealth Privacy Act allows for special rules in relation to an “enforcement body”, which is defined by para (ca) of s 6, to include the Department. An “enforcement body” also means, by para (m) of s 6, “another prescribed authority or body that is established under a law of a State or Territory to conduct criminal investigations or inquiries”. An “entity” includes “an agency” or “an organisation”. An “agency” includes “a Department”.

Decision

Reasons for decision

It was for these reasons that the primary judge dismissed the first ground. This conclusion on the privacy law argument is the subject of the notice of contention. Ground 2 – was the Minister’s refusal to revoke the cancellation decision legally unreasonable? His Honour then moved to the second ground of unreasonableness. It was rejected. There is no cross-appeal. Ground 3 – did the Minister commit jurisdictional error by failing to regard the suspended nature of the March 2003 convictions? The live ground on the Minister’s appeal is ground 3. On this ground, Mr Hunt succeeded before the primary judge. Ground 3 as then cast was particularised as follows:3.1.The [Minister] claimed to have suspected that [Mr Hunt] did not pass the character test set out in section 501(6)(e) of the Act on the basis of the offences on which he had been convicted in the District Court in Queensland on 20 March 2003.3.2.On all charges [Mr Hunt] had been sentenced to 9 months imprisonment wholly suspended for two years.3.3.At the time of the commission of the offences in October and December 2000 [Mr Hunt] was a juvenile aged 16. Had he been charged and sentenced as a juvenile, a sentence of imprisonment was unlikely.3.4.On 1 March 2010 he was convicted on multiple charges of failing to report, and sentenced to four months imprisonment to be served concurrently and suspended for 18 months. He has not subsequently been sentenced to a term of imprisonment.3.5.In failing to have regard to the suspension of the terms of imprisonment on the sexual assault charges in March 2003, and to the fact that [Mr Hunt] was a juvenile at the time of the offences with which he was charged, the [Minister] failed to have regard to a relevant consideration, reached his determination on an illogical, irrational, and unreasonable basis, and so fell into jurisdictional error.(Emphasis added.) After recording the parties’ submissions, the primary judge noted that two grounds of judicial review arose from the third ground as particularised:(1)the Minister’s failure to take into account a relevant consideration, namely, that the sentence for the March 2003 convictions was suspended for two years; (2)the failure to regard the fact of suspension of the term of imprisonment involved not only the failure to have regard to a relevant consideration but also a determination made on an illogical, irrational and unreasonable basis. The first question for his Honour’s consideration was whether it could be said that the Minister failed to have regard to the fact that the sentence of imprisonment for nine months was suspended wholly for two years. His Honour noted that the Minister had put forward a range of factors to suggest that the Minister plainly would have been aware of the fact that the sentence was suspended. His Honour said while that material existed, the real question was whether the Minister actually had regard to the fact that the sentence of imprisonment was suspended for two years. In determining the answer to that question, what the Minister actually stated in his written reasons for decision was critical, not what he may have read.

Ratio Decidendi

Legal Principle Established

On 17 May 2017, in the absence of any response, the Department sent the Minister a submission inviting him to personally consider whether to cancel Mr Hunt’s visa on the basis that he did not pass the character test pursuant to s 501(6)(e) of the Migration Act 1958 (Cth). The Minister decided to exercise his discretion under s 501(2) of the Migration Act to cancel Mr Hunt’s visa on the basis that he reasonably suspected that Mr Hunt did not pass the character test and that Mr Hunt had not otherwise satisfied him that he did pass that character test. Mr Hunt received from the Department a “Notice of Visa Cancellation” in July 2017 and was placed into immigration detention. On 25 August 2017, without representation, he filed in this Court an application for an extension of time within which to apply for judicial review of the Minister’s decision to cancel his visa. He was 10 days out of time, which is not unusual considering that he was transferred from Yongah Hill Immigration Detention Centre in Northam, Western Australia, to Christmas Island Immigration Detention Centre. Representations were made on behalf of Mr Hunt with the assistance of a pro bono lawyer, Dr Cameron, who has generously assisted Mr Hunt since that time. The Court appreciates Dr Cameron’s professional service. Mr Hunt’s application was amended. It stressed three major matters:(1)first, that the initial decision was based on evidence of his criminal record which had been unlawfully or improperly obtained on behalf of the Minister;(2)secondly, that the Minister’s refusal to revoke his decision gave no adequate reasons and failed to take into account relevant considerations and was irrational and unreasonable;(3)thirdly, in failing to take into the account the fact that the March 2003 convictions had been wholly suspended for two years, the Minister failed to take into account a relevant consideration, made an illogical, irrational and unreasonable decision and fell into jurisdictional error. THE MINISTER’S REASONING The Minister was of the view that the appellant’s criminal conduct (sexual offences involving children) was very serious. This is clear from the Minister’s reasons (at [10]-[17]):10. I am of the view that sexual offences involving children are very serious. 11. On 20 March 2003, Mr HUNT was convicted in the District Court at Queensland of two counts of unlawfully and indecently dealing with a child under 12 and sentenced to nine months imprisonment on each count. 12. The sentencing Judge described the offending as ‘two extremely serious offences’, both of which involved a ‘breach of trust’. The two counts of unlawfully and indecently dealing with a child under 12 relate to the same child, a distant relative, whom Mr HUNT was baby-sitting at the time of the offences.13. In both cases Mr HUNT digitally penetrated the victim’s vagina. The second count occurred whilst Mr HUNT and the victim were swimming. The Judge took into account a victim impact statement and found the offences ‘obviously would have had some impact’ on the child. 14. Between 2007 and 2010 Mr HUNT was convicted of multiple counts of fail to comply with reporting under the Child Protection (Offender Reporting) Act 2004 (Qld). He received fines and, in 2009, a term of imprisonment of four months, suspended for 18 months.15. Mr HUNT also has convictions between 2003 and 2016 for fare evasion, commit public nuisance and unauthorised driving and speeding offences. He received fines for these offences.16. I find the sentence Mr HUNT received for unlawfully and indecently dealing with a child under 12 is a further indication of the seriousness of the offending. Depositions involving sentencing the offender to a term of imprisonment are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious. 17. I find that Mr HUNT’s conviction for two counts of unlawfully and indecently dealing with a child under 12 is very serious.