Federal Court Quashes Visa Cancellation for Procedural Fairness Breach

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

[NAME] [APPELLANT] v [NAME] [2012] FCA 1146 Citation: [NAME] [APPELLANT] v [NAME] [2012] FCA 1146

Appeal from: [NAME] [APPELLANT] v [NAME] [2012] AATA 79

Parties: [APPELLANT] v [NAME] TRIBUNAL

File number: NSD 367 0F 2012

Judge: PERRAM J

Date of judgment: 22 October 2012

Catchwords: ADMINISTRATIVE LAW – Procedural fairness – whether applicant had notice of line of reasoning ultimately adopted by Administrative Appeals Tribunal in affirming decision to cancel applicant's visa – whether line of reasoning was in fact adopted – whether line of reasoning was clear from Minister's submissions and other material provided to applicant – whether line of reasoning had been assumed by both parties before the Tribunal – whether any error could be cured by an opportunity to make further submissions at the conclusion of the hearing

Legislation: Migration Act 1958 (Cth) s 501 Direction (No. 41)—Visa refusal and cancellation under s 501 cll 10.1, 10.1.1, 10.1.2

Cases cited: [NAME] [NAME] v [COMPANY] (1993) 43 FCR 280 cited Kioa v West (1985) 159 CLR 550 applied [NAME] v [NAME] [2011] AATA 719 cited [NAME] v [NAME] (1996) 185 CLR 259 cited [NAME] [APPELLANT] v [NAME] [2012] AATA 79 cited

Date of hearing: 28 September 2012

Place: [APPELLANT]: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 44

Counsel for the Applicant: [redacted]

Solicitor for the Applicant: [redacted]

Counsel for the [APPELLANT]: [[APPELLANT]]

Solicitor for the [APPELLANT]: [[APPELLANT]]

Counsel for [RESPONDENT] [APPELLANT]: [[APPELLANT]] [APPELLANT] did not appear

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 367 0F 2012

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: [APPELLANT]

Applicant

AND: [APPELLANT] FOR IMMIGRATION AND CITIZENSHIP

[APPELLANT] TRIBUNAL

[APPELLANT] OF ORDER: 22 OCTOBER 2012 [APPELLANT]

THE COURT ORDERS THAT:

1. Order absolute in the first instance for a writ of certiorari directed to the Administrative Appeals Tribunal to quash its order dated 13 February 2012 in review proceeding 5061 of 2011 affirming the decision under review.

2. Order absolute in the first instance for a writ of mandamus directed to the Administrative Appeals Tribunal to determine the applicant's review application in proceeding 5061 of 2011 according to law.

3. The [APPELLANT] pay the applicant's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 367 0F 2012

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

[APPELLANT]

Applicant

AND: [APPELLANT] FOR IMMIGRATION AND CITIZENSHIP

[APPELLANT] TRIBUNAL

[RESPONDENT] [APPELLANT]

JUDGE: PERRAM J DATE: 22 october 2012 PLACE: [APPELLANT] FOR

JUDGMENT 1 [NAME] [APPELLANT] is a citizen of New Zealand born in 1973 and, therefore, 39 years old at the time of this litigation. He was born in the Cook Islands. He came to Australia in mid-2007 for a period of ten days and, in 2008, entered on a special class of visa available to New Zealanders which confers a right of residence. 2 [NAME] [APPELLANT]'s visa has now been cancelled and he is presently in immigration detention awaiting, subject to the outcome of this litigation, removal from Australia. The decision to cancel his visa was initially made by a delegate of the [NAME] ('the Minister') on 23 October 2011 and thereafter affirmed by the Administrative Appeals Tribunal ('the Tribunal') on 13 February 2012: [NAME] [APPELLANT] v [NAME] [2012] AATA 79. 3 [NAME] [APPELLANT]'s visa was cancelled because he did not satisfy the character test established by s 501(6) of the Migration Act 1958 (Cth) ('the Act'); because that failure enlivened in the Minister (and his delegate) a discretion, although not an obligation, to cancel the visa under s 501(2); and because the delegate and later the Tribunal concluded that its appropriate exercise required cancellation. 4 [NAME] [APPELLANT] failed the character test because on 6 April 2010 he was convicted in the District Court of Queensland of sexual assault on a [NAME]. He was sentenced by McGinness DCJ to a period of imprisonment for 12 months. Her Honour required him to serve three months of this sentence but suspended the balance for a period of 12 months subject to his good behaviour. It followed, at least as a matter of form, that he had been sentenced to a term of imprisonment of 12 months or more (even though he only had to serve three months) with the consequence that he had a 'substantial criminal record' within the meaning of s 501(7) of the Act. A person with such a record does not pass the character test: s 501(6)(a). 5 As it happens this was not [NAME] [APPELLANT]'s only brush with the law. The sexual assault to which the conviction of 6 April 2010 related had occurred on 25 October 2009. Between the time of that offence and his conviction therefor, [NAME] [APPELLANT] was also charged with a sexual assault on a young woman which was alleged to have occurred on 28 February 2010. Of this charge he was ultimately acquitted. 6 The complexities of this case emerge from the Tribunal's attempts to utilise some of the matters surrounding the offence of which he was acquitted in the exercise of its discretion under s 501(2). 7 The case was argued very ably on both sides with Mr [RESPONDENT] of counsel appearing for the Minister and Mr [APPELLANT] of counsel for [NAME] [APPELLANT]. 8 It is necessary to say something first of the Tribunal's hearing. During its review the Queensland Police Service ('the Police') had produced a bundle of documents to the Tribunal which, following pagination, became Exhibit R2. The bundle had included the Police's internal records concerning the alleged offence of which [NAME] [APPELLANT] had been acquitted. This contained a report which stated that prior to the incident the [NAME] had met [NAME] [APPELLANT] at a hotel where they had both been drinking, that the [NAME] had given [NAME] [APPELLANT] a lift home and that shortly afterwards he was alleged to have entered her home and sexually assaulted her. 9 At the hearing the Tribunal took [NAME] [APPELLANT], who was unrepresented, through his evidence. There were some questions about the alleged offence of 28 February 2010 from the Tribunal but, in substance, these confirmed only that he had been acquitted. 10 Part of the Tribunal's process of reasoning (to which I return below) focussed on [NAME] [APPELLANT]'s drinking habits. In this regard the Tribunal asked him about his drinking at the time of the offence of which he was convicted. The burden of this evidence was that at the time of the offence he had been drunk as a result of being out for a day of cultural celebration for [NAME]. The Tribunal also asked him about his drinking habits immediately before entering immigration detention (where there is no access to alcohol). His answer was that he still drank albeit not so much as before. The Tribunal did not ask him about his drinking habits at the time of the alleged offence of which he had been acquitted. 11 When the Tribunal concluded its examination of [NAME] [APPELLANT] he was cross-examined by the solicitor appearing for the Minister. This cross-examination ranged across two topics (for present purposes). First, he was asked about his pre-detention drinking habits. He accepted that he drank five or six extra-dry lagers on the weekend which made him a little bit drunk. He thought that if he were allowed to stay in Australia he would probably give up drinking. 12 Secondly, the Minister's solicitor sought to cross-examine [NAME] [APPELLANT] about the matter of which he had been acquitted. The end to which this cross-examination was directed was to show that the circumstances of the offence of which he had been acquitted were similar to those of which he had been convicted. The questioning commenced by showing him the remarks of the sentencing judge in respect of the offence for which he had been convicted. These contained a description of the offence. The cross-examination continued: Ms [NAME] (for the Minister): --- what was translated to you? Now, is that similar to the other offence that you were charged with? The facts that are – were just translated to you? [NAME] [APPELLANT]: No. Ms [APPELLANT]: How was it different? [NAME] [APPELLANT]: Well, this one is – I understand, because I guilty of this one, and the offence is – I didn't do it. I'm not guilty. Ms [NAME]: But the woman who claimed you did something claimed you did something similar. Is that right? [NAME] (the Tribunal member): [NAME], I won't allow that question. That's oppressive, and he was not convicted of the other charge. [NAME]: Certainly, Senior Member. Don't worry about responding. 13 The Tribunal did not seek directly to use the offence of which he had been acquitted. It did, however, have some regard to it under the rubric of considering two matters which were mandatory to its consideration. The first of these was the seriousness and nature of the conduct. The conduct, of course, was the offence of which he had been convicted. The conduct was not, it should be emphasised, his drinking. So much is apparent from cl 10.1.1 of 'Direction (No. 41)—Visa refusal and cancellation under s 501' ('Direction 41') which makes it clear that the mandatory consideration of the seriousness and nature of the conduct is concerned with crimes, especially those involving violence. Sub-clause (1) provides: (1) Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against [NAME] (such as [NAME], [NAME] and the disabled), are especially abhorrent to the whole community. 14 Sub-clause (2) then provided a list of 'offences and conduct that are considered serious' which began with 'murder' and did not, perhaps unsurprisingly, include being drunk. 15 When assessing the seriousness of the conduct constituting the conviction, the Tribunal approached the acquittal this way. First, it 'noted' that he had been charged with a sexual assault on 28 February 2010 but acquitted: [23]. It then noted at [25], having referred to the Tribunal's decision in [NAME] v [NAME] [2011] AATA 719, 'that a priori this Tribunal cannot go behind an acquittal'. 16 It went on to say this at [26]-[28]:

26. I noted from Judge McGuiness' [sic] statements and the documents of the Queensland Police Service at Exhibit R2, that [NAME] [APPELLANT] was affected by alcohol at the time of the 2009 sexual assault. I noted further that in relation to the events of 28 February 2010, the Police reported he had been drinking with the complainant at a hotel prior to the alleged assault.

27. The Applicant gave evidence that he was aware of his propensity to drink, and presently restricted his drinking to six or seven cans of beer on one day a weekend, or a couple after work some days. His evidence regarding the pattern of drinking was not consistent. I am mindful he has undertaken no rehabilitation, and no educational programs in relation to alcohol. His evidence was that he had not looked into any such programs. 28. [NAME] [APPELLANT]'s conviction for sexual assault, the pending charges in New Zealand, and his propensity to alcohol which he has not addressed adequately, weigh against him remaining in Australia. 17 Taken together it is clear from these paragraphs that the Tribunal embraced a case that [NAME] [APPELLANT] had been drinking with the woman who reported the offence of which he had been acquitted. I draw this conclusion because one subject of [26]-[27] is [NAME] [APPELLANT]'s propensity for alcohol and because otherwise the last sentence of [26] serves no purpose. It is not self-evident why the Tribunal was discussing [NAME] [APPELLANT]'s propensity for alcohol at this point. The question which it was ostensibly addressing was how serious the offence he had been convicted of was. [NAME] [APPELLANT] had a propensity to drink does not seem germane to that inquiry (except perhaps, at least at a theoretical level, by way of mitigation). 18 It was relevant, however, to [RESPONDENT] mandatory matter that the Tribunal considered, namely, the risk of the conduct being repeated. This was made relevant, and therefore mandatory, by cl 10.1(2)(b) of Direction 41. 19 On that topic in relation to the alleged offence of which he had been acquitted the Tribunal said (at [33]): I am mindful of the role alcohol played in [NAME] [APPELLANT]'s sexual assault in 2009, and the report that he had been drinking with the complainant in the February 2010 incident. I note also that he has not undertaken any rehabilitation or alcohol programs, and note that pursuant to paragraph 10.1.2(2)(b) of Direction 41, evidence of the extent of rehabilitation may be taken into account. There has been none that I know of in the Applicant's case. 20 It is plain from this paragraph that the Tribunal took into account the alleged fact that [NAME] [APPELLANT] had been drinking with the alleged [NAME] prior to the offence for which he was acquitted. 21 The Tribunal therefore used some of the alleged facts surrounding the matter of which he was acquitted for two purposes: (a) as material indicating a propensity to alcohol consumption; and (b) as material indicating a propensity to commit sexual assaults whilst drunk. 22 [NAME] [APPELLANT]'s case is that this was procedurally unfair because such a case was never put to him for his response. It is necessary to deal with these two matters separately.

(a) Propensity to consume alcohol 23 I do not think [NAME] [APPELLANT]'s argument should be accepted in relation merely to a propensity to consume alcohol. As Mr [RESPONDENT] submitted, the fact that [NAME] [APPELLANT] had had some difficulties with alcohol in the past was not really in issue (this is discussed below at [38]-[40]). In any event, the Tribunal's inquiry about this took place under the rubric of considering how serious the offence of which he had been convicted was. Apart from the proposition that being drunk was not a mitigating factor, these two topics do not appear to be connected in any useful way. Nevertheless, no argument was advanced that [NAME] [APPELLANT]'s propensity for alcohol should not have been considered at all under the issue of 'seriousness and nature of the conduct' (the conduct being the sexual assault and not [NAME] [APPELLANT]'s drinking habits). One may legitimately wonder what the Tribunal was doing at this juncture but when the question is whether there was a denial of procedural fairness I think the answer, at this level, is that there was not. That [NAME] [APPELLANT]'s conviction had occurred, in part, as a result of drunken mistake was his own contention.

(b) Propensity to commit sexual assault whilst drunk 24 However, accepting all that to be so does not assist in relation to (b). Here the question was not whether he had a tendency to drink. Rather it was whether he had a tendency to commit sexual assaults whilst drunk. The relatively uncontroversial fact of his drinking did not put in play the more controversial proposition that he had a tendency sexually to assault young women in their houses whilst under the influence of alcohol. 25 Against this conclusion Mr [RESPONDENT] rallied four points: (a) paragraph [33] of the Tribunal's reasons (above at [19]) was quite capable of being read merely as being about [NAME] [APPELLANT]'s alcohol consumption and not about a propensity sexually to assault whilst drunk. To read it as an element in an argument connecting drinking to a propensity to sexual assault was to go searching for error; (b) the case was in any event, raised by the Police file which had been served on him before the hearing together with the Minister's submissions; (c) in any event, there could be no procedural unfairness because the hearing was conducted by both sides on the basis that [NAME] [APPELLANT] had drunk excessively; and (d) further, [NAME] [APPELLANT] had been given an opportunity to add any further remarks he wished at the end of his evidence but did not do so. 26 Persuasively advanced though these submissions were, I cannot accept them. 27 As to the first it is an inevitable feature of the Minister's submission that the reference to alcohol consumption in [33] is not connected to a risk of committing sexual assault. It was, as Mr [RESPONDENT] put it, about 'just drinking simpliciter'. 28 But if that be so it is pertinent to ask what its relevance was in a section commencing with the heading 'Risk of the conduct being repeated'. The conduct under examination was not drunkenness (with which [NAME] [APPELLANT] had neither been charged nor convicted). The conduct was sexual assault. Further, the kind of behaviour to which cl 10.1.2 was directed was the risk of re-offending and the offences in question were those of the kind in cl 10.1.1(2), that is, crimes involving violence. 29 The choices of interpretation thrown up by [33] are either that the Tribunal was investigating the question of whether there was a risk of him taking up drinking again, or alternatively, that it was considering the future risk of [NAME] [APPELLANT] committing alcohol-fuelled sexual assault. 30 I do not accept the former as the correct reading of what the Tribunal did. If it were correct it would mean that the Tribunal had misunderstood its function and that the matters which enlivened the character test including drinking. This would involve such a serious misunderstanding of cl 10.1.1 that I cannot imagine that it was what the Tribunal had in mind. 31 It is much more likely – and indeed more rational – that the Tribunal was posing for itself the question of whether or not there was a pattern to [NAME] [APPELLANT]'s criminal behaviour and whether that pattern involved, as a element, alcohol consumption. 32 I do not disregard the injunction in cases such as [NAME] [NAME] v [COMPANY] (1993) 43 FCR 280 at 287 per Neaves, [NAME] JJ and [NAME] v [NAME] (1996) 185 CLR 259 at 271-272 per Brennan CJ, [NAME], [NAME] and [NAME] JJ and 291 per [NAME] J that one ought not read the reasons of an administrative tribunal with an eye keenly attuned to the detection of error. In this case, however, it is a question of identifying what the Tribunal did and what it did, in my opinion, was to consider the risk of [NAME] [APPELLANT] committing sexual assaults because of a propensity on his part to consume alcohol. 33 As to [RESPONDENT] of the Minister's ripostes, having concluded that the Tribunal did embrace such an argument, I do not accept that it was adequately foreshadowed by the provision some days before the hearing to [NAME] [APPELLANT] of the Police file and the Minister's submissions. The Minister's statement of facts, issues and contentions to the Tribunal dealt with the two mandatory matters of the seriousness and nature of the conduct and the risk that the conduct might be repeated under separate headings. In the part dealing with the seriousness of the offence, the Minister's only submission touching upon [NAME] [APPELLANT]'s drunkenness at the time of the offence was that it did not consitute a mitigating circumstance. 34 Under the heading 'Risk that the conduct might be repeated' in the same statement, there was no mention of alcohol at all, still less a case that [NAME] [APPELLANT] had drinking issues which, when combined with a propensity to commit sexual assault whilst drunk, meant that the risk of recidivism was increased. 35 Nor do I think that the supply of the Police file by itself adequately signalled such a case. A reasonable person might think that that part of his police record which terminated in an acquittal might not be used against him without the pertinent aspect of it being brought to his attention. But the Minister's submission did no such thing. The Minister did seek to make use of the fact of the alleged offence of which he had been acquitted in his statement of facts, issues and contentions but only in a rather confusing way. The Minister made the following points: (a) the fact that he committed the offence of which he was convicted whilst the charge against him in respect of the offence of which he was acquitted was pending was indicative of the seriousness of the conduct and showed a risk of repetition; and (b) the use of the acquittal required 'careful and restrained analysis' (citing [NAME] at [31]). 36 It was accepted by the end of the Tribunal hearing (and before me) that the chronology in (a) was incorrect and the point was withdrawn. Proposition (b) is correct but has no practical content from the perspective of procedural fairness. 37 Thus were the uses of the material foreshadowed in the Minister's submissions. I do not accept that, armed with those submissions and the Police file, [NAME] [APPELLANT] could possibly have been expected to work out that the case against him was that he had a tendency to drink and when drunk to commit sexual assault. Nor do I think that the difficulty is ameliorated because [NAME] [APPELLANT] had been personally involved in his own trial or was aware that his conviction was likely to be subject to examination during the Tribunal's hearing. The first time such a case appears is at [33] in the Tribunal's reasons. As [NAME] J observed in Kioa v West (1985) 159 CLR 550 at 587, '[r]ecent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it'. This did not occur. 38 Nor for similar reasons do I think, turning to the Minister's third submission, that the fact that [NAME] [APPELLANT] was examined both by the Minister's solicitor and the Tribunal about his alcohol consumption in the slightest assists. It is no doubt true that, in his submission to the Tribunal, [NAME] [APPELLANT] did implicate alcohol in the matter of which he had been convicted. He said this: While being in prison I was thinking a lot about what I had done and what I have put my family through. I have learnt my lesson. I am very sorry for what I [have] done and will not go down that line again, it was a stupid drunken mistake, not to blame the alcohol but myself for the actions. 39 I would hesitate to say that this constituted evidence that [NAME] [APPELLANT] had a drinking problem and Mr [RESPONDENT], very properly, would not accept that characterisation of the material preferring instead the more nuanced expression 'an earlier propensity for alcohol'. In that sense, no doubt the fact that the offence of which he had been convicted was committed under the influence of alcohol was not in issue. But this did not come close to putting in play the suggestion that [NAME] [APPELLANT] had a propensity to commit sexual assaults whilst drunk. 40 The questions of the Tribunal and the Minister's solicitor stand in no different position. The Tribunal had elicited from [NAME] [APPELLANT] only that he had been drinking on the night of the offence of which he was convicted and what his current drinking habits were. The Tribunal did not ask him anything about his drinking on the night of the matter of which he had been acquitted. 41 The Minister's solicitor sought to ask [NAME] [APPELLANT] about that night and its similarity to the other offence but the Tribunal stopped this from occurring. ('Ms [NAME], I won't allow that question. That's oppressive, and he was not convicted of the other charge'). He was also asked about his pre-detention drinking by the solicitor. 42 Viewed through that prism the idea that his propensity to commit sexual assault whilst drunk had been raised as an issue by the Tribunal is untenable. The only time the hearing came near to touching on the issue the Tribunal stopped the questioning. Indeed, the manner in which that examination was terminated led Mr [APPELLANT] to make the submission that it had thereby been signalled to [NAME] [APPELLANT] that the circumstances of his acquittal were not relevant and that thereafter to use the acquittal as the Tribunal did was a breach of procedural fairness. Mr [RESPONDENT] submitted that the line of questioning (above at [12]) was limited, in substance, to the elements of the offence. I do not need to resolve that issue because I accept that the case based upon a propensity to commit sexual assault after drinking was not notified to [NAME] [APPELLANT]. The relevance of the manner in which the Tribunal stopped the questioning about his acquittal is only to show that no opportunity to meet the case was provided. Had it been necessary to resolve I think it likely that Mr [APPELLANT]'s submission that the questioning was not limited only to the elements of the offence was correct. 43 The Minister's final argument was that the Tribunal's final question to [NAME] [APPELLANT] ('Is there anything else you want to say to me?') cured whatever other difficulties there were. I do not accept this submission. An opportunity to make a submission cut-off from any knowledge of the case being put against one is no opportunity at all. 44 [NAME] [APPELLANT] is entitled to writs of certiorari and mandamus. The Minister must pay his costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate: Dated: 22 October 2012