Minister for Home Affairs v Smith

Link copied
Case Copied 23 min read

FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Smith [2019] FCAFC 137

Appeal from: Smith v Minister for Home Affairs [2019] FCA 45
File number: ACD 7 of 2019
Judges: JAGOT, PERRY AND MARKOVIC JJ
Date of judgment: 19 August 2019
Catchwords: MIGRATION – whether the respondent was denied procedural fairness – denial of procedural fairness found – decision of primary judge upheld – appeal dismissed with costs
Legislation: Migration Act 1958 (Cth)
Cases cited:

Degning v Minister for Home Affairs [2019] FCAFC 67

R v Smith [2005] QCA 204

Smith v Minister for Home Affairs [2019] FCA 45

Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212
Date of hearing: 7 August 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 35
Counsel for the Appellant: Mr G Johnson SC with Mr PM Knowles
Solicitor for the Appellant: Clayton Utz
Counsel for the Respondent: Mr S Prince SC with Mr S Lawrence
Solicitor for the Respondent: Hearn Legal

ORDERS

ACD 7 of 2019
BETWEEN:

MINISTER FOR HOME AFFAIRS

Appellant
AND:

LORI DAYON SMITH

Respondent

JUDGES:

JAGOT, PERRY AND MARKOVIC JJ

DATE OF ORDER:

19 AUGUST 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs, as agreed or taxed.

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


REASONS FOR JUDGMENT

THE COURT:

  1. In this appeal the Minister contends that the primary judge erred in deciding that the Minister denied the respondent procedural fairness, as a result of which the primary judge ordered that the Minister’s decision of 16 April 2018 refusing to revoke the mandatory cancellation of the respondent’s visa be set aside: Smith v Minister for Home Affairs [2019] FCA 45.

  2. We have decided that the primary judge’s conclusion is not attended by any error.  Accordingly, the appeal must be dismissed.  Our reasons follow.

    Background facts

  3. Ms Smith, a citizen of the United States, has lived in Australia since 1978, when she was about 12 years old, and held a Class BF transitional (Permanent) visa.

  4. On 10 February 2005 Ms Smith was convicted of murder and sentenced to a mandatory term of life imprisonment.  On the same day she was convicted of burglary for which she was sentenced to 10 years’ imprisonment to be served concurrently.  She appealed against her conviction but the appeal was dismissed: R v Smith [2005] QCA 204.

  5. On 19 June 2017 a delegate of the Minister was satisfied that the requirements of s 501(3A)(a) and (b) of the Migration Act 1958 (Cth) (the Act) were met with the consequence that Ms Smith’s visa was subject to mandatory cancellation.   

  6. Ms Smith made representations to the Minister in accordance with the Minister’s invitation to do so, seeking the revocation of the mandatory cancellation of her visa…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Minister for Home Affairs v Smith and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2019] FCAFC 137
Decision Date

CaseChat Overview and Summary

The matter before the Court was an appeal by the Minister for Home Affairs against a decision of the Federal Court of Australia that Ms Smith had been denied procedural fairness in the process of cancelling her visa. Ms Smith, a United States citizen who has lived in Australia since she was 12 years old, was convicted of murder and burglary in 2005. The Minister was satisfied that the requirements for mandatory cancellation of Ms Smith’s visa were met under the Migration Act 1958 (Cth). Ms Smith made representations to the Minister seeking revocation of the visa cancellation, but the Minister refused to revoke the decision. The primary judge found that Ms Smith was denied procedural fairness and the Minister appealed that decision.

The central legal issue before the Court was whether the primary judge was correct in finding that Ms Smith was denied procedural fairness. The Court found that the primary judge’s conclusion was not attended by any error. The Court agreed with the primary judge that the Minister treated Ms Smith’s representation that the murder and burglary allegations did not involve drug-use as a denial of drug involvement, which was not supported by the circumstances. The Court found that it was not obvious that Ms Smith should have denied drug involvement as there was no suggestion of drug involvement in her commission of the offences. The Court found that the Minister’s treatment of Ms Smith’s representation as a denial undermined her opportunity to address the factual inferences upon which the Minister’s conclusion depended, and therefore denied her procedural fairness.

The Court dismissed the appeal and upheld the decision of the primary judge. The Court found that the Minister’s submissions did not recognise the importance of the context in which Ms Smith made her representations and that the primary judge’s conclusion was correct. The Court ordered that the appeal be dismissed and that the appellant pay the respondent’s costs, as agreed or taxed. The Court’s decision highlights the importance of procedural fairness in the visa cancellation process and the need for decision-makers to consider the context in which representations are made.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs, as agreed or taxed.

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

Background

Background to the litigation

We have decided that the primary judge’s conclusion is not attended by any error. Accordingly, the appeal must be dismissed. Our reasons follow.Background facts Ms Smith, a citizen of the United States, has lived in Australia since 1978, when she was about 12 years old, and held a Class BF transitional (Permanent) visa. On 10 February 2005 Ms Smith was convicted of murder and sentenced to a mandatory term of life imprisonment. On the same day she was convicted of burglary for which she was sentenced to 10 years’ imprisonment to be served concurrently. She appealed against her conviction but the appeal was dismissed: R v Smith [2005] QCA 204. On 19 June 2017 a delegate of the Minister was satisfied that the requirements of s 501(3A)(a) and (b) of the Migration Act 1958 (Cth) (the Act) were met with the consequence that Ms Smith’s visa was subject to mandatory cancellation. Ms Smith made representations to the Minister in accordance with the Minister’s invitation to do so, seeking the revocation of the mandatory cancellation of her visa under s 501CA(4) of the Act. As it was common ground that Ms Smith did not pass the character test, in order to revoke the cancellation of her visa the Minister was required to be satisfied that there is “another reason why the original decision should be revoked” pursuant to s 501CA(4)(ii). In his statement of reasons, the Minister recorded the background to the offences by reason of which Ms Smith failed the character test. He recorded that Ms Smith had been in a relationship with the deceased. During the relationship with the deceased, the deceased had been extremely jealous and possessive and became aggressive when people would talk to her. The deceased verbally abused her in public and her friends feared for her safety at the hands of the deceased which is why she ended the relationship. During the breakdown of their relationship, the deceased had threatened to burn down Ms Smith’s house. At the time of the offences, Ms Smith was in another relationship with one Michael Corry. The Saturday before the murder, the deceased had gone to Ms Smith’s house and physically assaulted her. On a subsequent night, Mr Corry went to the deceased’s house and murdered him during a physical altercation. Ms Smith was convicted of murder on the basis that the murder was a probable consequence of a common intention between her and Mr Corry that Mr Corry should enter the deceased’s house at night with a view to either robbing or assaulting him. In her representations to the Minister, Ms Smith maintained that she was innocent of the convictions which led to her imprisonment. She said that she was not an unacceptable risk to the community as, amongst other things, “[n]one of the allegations involve illegal recreational drugs” and “I do not have a drug, alcohol or gambling problem”. The National Police Certificate which was part of the material before the Minister recorded various convictions and fines for minor drug related offences between 1994 and 2002. Another record shows that Ms Smith was convicted and fined for a drug related offence which occurred two days after the murder.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Minister also said the primary judge’s reasoning at [88] was flawed as the finding of the propensity of Ms Smith reoffending was not undermined if at least one of her convictions was drug related. Further, if the primary judge’s conclusion in [87] was as flawed as the Minister proposed, then it must also follow that [88] of his Honour’s reasons could not stand.Consideration The problem with the Minister’s approach, as the primary judge’s reasons implicitly recognise, is that the critical representation she made (to the effect that the murder and burglary “allegations” did not involve drug-use) did not amount to a denial of drugs being involved in her commission of these offences. The context of the representations is important. As the primary judge noted in [87], there was no finding in the criminal proceedings that drugs were involved. Accordingly, there was no call or occasion for Ms Smith to deny that which had not been asserted against her. She was making a representation, consistent with all of the available material about the circumstances of her convictions for murder and burglary, that drugs were not involved. As the primary judge found at [61], it was the Minister who treated this as a denial that drugs were involved contrary to his own finding to that effect and then used the purported denial to bolster his conclusion that Ms Smith had a propensity to re-offend. It is this sequence of inferences that the primary judge found was not obvious in the circumstances and which underpinned the denial of procedural fairness to Ms Smith. We agree with the parties that the relevant standard of obviousness or otherwise is to be applied objectively, that is with regard to the position of a reasonable person in all of the circumstances in which Ms Smith was in at the time she made her representations. At that time there was no suggestion that drugs were involved in the murder and burglary offences. It may be accepted that she made a representation to the Minister to that effect as relevant to her risk of re-offending. But nothing in the circumstances called for her to make a denial of any involvement of drugs. An apparently uncontentious assertion is one thing. A denial, which involves the concept of the refutation of an asserted or accepted fact, is another. As the primary judge said, what could not have been reasonably anticipated by a person in Ms Smith’s position was that despite there being no mention of drugs as relevant to her commission of the murder and burglary, the Minister would not only find to the contrary but would also treat her representation as a denial of her offending involving illegal substances thereby founding an inference, by reason of her denial of that fact as found by the Minister, that she would have a propensity to re-offend. The Minister’s submissions do not recognise the importance of the context in which Ms Smith was making her representations to the lack of a fair opportunity to address these factual inferences upon which the Minister’s conclusion depended. Once it is accepted that Ms Smith was not issuing a denial in making her representations, it follows that the Minister’s submissions cannot be accepted.