FEDERAL COURT OF AUSTRALIA Bax v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 55 MIGRATION – deportation order – application to AAT for a review of the Minister's decision – denial of procedural fairness by AAT – conceded error of construction of s 474 of the Act by primary judge having regard to subsequent decision of the High Court Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 200, 474, 474(4), 499, 500(1)(a) Mahon v Air New Zealand Ltd [1984] 1 AC 808 followed Stead v State Government Insurance Commission (1986) 161 CLR 141 applied NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (193 ALR 449) referred to Plaintiff S157/2002 v Commonwealth of Australia [2003] 195 ALR 24 followed Re Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82 applied DAVID JOHN BAX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W 294 OF 2002 CARR, MERKEL & HELY JJ 27 MARCH 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 294 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: DAVID JOHN BAX APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGES: CARR, MERKEL & HELY JJ DATE OF ORDER: 27 MARCH 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal from the decision of the primary judge be upheld. 2. The decision of the AAT given on 29 October 2001 affirming the respondent's order that the applicant be deported from Australia be quashed. 3. The application for a review of the respondent's decision be remitted to the AAT, differently constituted, for determination in accordance with the law. 4. The respondent pay the appellant's costs of this appeal, and of the proceedings at first instance. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 294 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: DAVID JOHN BAX APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGES: CARR, MERKEL & HELY JJ DATE: 27 MARCH 2003 PLACE: PERTH REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judgment of a single judge of this Court. The primary judge dismissed an application under s 39B of the Judiciary Act 1903 (Cth) in which prerogative relief was sought in relation to a decision of the Administrative Appeals Tribunal ("the AAT"). By its decision, the AAT affirmed an order made by the respondent pursuant to s 200 of the Migration Act 1958 (Cth) ("the Act") that the appellant be deported from Australia. Facts 2 The appellant is a citizen of New Zealand. He came to Australia on 25 September 1994 and has remained in this country since that time. He was granted a special category visa upon entry with no fixed expiry date. The visa expires upon his next departure from Australia. 3 On 19 August 1999 the appellant was convicted on two counts of assault occasioning bodily harm said to have been committed on 28 March 1998. He was sentenced to sixteen months imprisonment on each count, the sentences to be served concurrently. The appellant also had a record of offences committed whilst living in New Zealand. 4 On 12 October 2000 the respondent made the deportation order referred to above. On 13 November 2000 the appellant applied to the AAT to review the Minister's decision pursuant to s 500(1)(a) of the Act. The AAT's decision 5 The appellant did not dispute that as a permanent resident, or an exempt New Zealand non-citizen of less than 10 years in Australia, who had been convicted of offences for which he was sentenced to imprisonment for a period of not less than one year, he was liable to deportation. 6 It was contended, however, that, serious as the offences were, there was little risk of the appellant re-offending, and that a proper exercise of discretion guided by the principles set forth in the Minister's General Direction – Criminal Deportation – No 9 issued under s 499 of the Act, should have resulted in him being warned rather than being deported. Conversely, the respondent contended that taking account of the seriousness and nature of the offences, the risk of recidivism, community expectation and the absence of significant hardship for the appellant or dependants, the decision under review should be sustained. 7 One of the issues which the Deputy President of the AAT addressed in the balancing process which he undertook was whether the appellant had undergone a basic character transformation since his imprisonment in August 1999. This was clearly a material consideration for the Deputy President to address. One of the factors which the Deputy President took into account in coming to a conclusion on this issue was the appellant's "presentation at the hearing". The appellant presented as a well-groomed, softly spoken individual, who, in the Deputy President's assessment, was quite unlike the person conjured up by the appellant's New Zealand offence record, and by the sentencing remarks made by the District Court judge when sentencing the appellant on 19 August 1999. 8 In par [10] of the Deputy President's reasons he said: "10. It would also be correct to say, that the mental picture I had of the applicant after reading the transcript of his interview with a Migration officer on 14 January 2000 was of a much rougher, arrogant and unrepentant individual than the one I saw in the witness box. Based upon the applicant's presentation at the hearing and the supportive evidence of his four witnesses (which I shall review shortly), it would be easy to conclude that since his imprisonment in August 1999 he has become a changed man. However I am hesitant in reaching such a conclusion because I think that the applicant's credibility is highly suspect." 9 The Deputy President does not expressly indicate why he thought that the appellant's credibility was highly suspect. It is probably because he gave a "sanitised version of his offending history" which the Deputy President did not accept. 10 The Deputy President then went on to consider the appellant's argument that he is a reformed character, and noted that whilst claims of this kind are commonplace, there are parts of the appellant's behaviour since his conviction in August 1999 which suggest that he has achieved a new level of maturity, and that his claims may be genuine. 11 One of the appellant's witnesses was John Williams, a retired community corrections officer who was the appellant's parole officer following his release from gaol. Mr Williams expressed the view that the appellant suffered from depression but, although he recommended counselling, the appellant did not act upon his advice. The Deputy President said (at [15]): "This may be a significant factor in making an accurate assessment of the applicant whose presentation at the hearing was certainly consistent with the flat effect which is one of the hallmarks of chronic depression." 12 Mr Williams had no psychological training. There was no evidence before the AAT that the appellant suffered from chronic depression. A submission made to the Minister when seeking his decision on whether or not to deport the appellant referred to a prison report dated 21 October 1999 which stated that the appellant was a prisoner "with no medical or psychiatric problems". There was no material before the AAT as to any "flat effect" which is one of the hallmarks of chronic depression. Perhaps the Deputy President drew upon his own reservoir of knowledge for this information, but the appellant was not alerted to this fact nor was he told that the Deputy President proposed to assess his "presentation at the hearing" in this way. 13 Paragraphs 20, 21, 22 and 24 of the Deputy President's reasons for decision are as follows: "20. The evidence persuades me that despite the applicant's past history he has developed some insight and maturity largely as a result of his imprisonment and his consequent self-examination. Whether he will commit further violent offences will depend very much upon the nature of the relationship he is in or the aggression or provocation with which he may be confronted. I think he has materially benefited from the anger management course and I think he genuinely wishes to avoid further trouble. I think his compliant demeanour in the witness box was in part the product of chronic depression rather than a basic character transformation. Although the risk of recidivism may not be high, it is by no means non-existent. 21. There are other considerations to be taken into account and they are enunciated in the Minister's General Direction – Criminal Deportation No. 9. Primary considerations include the expectation of the Australian community. There are no children with whom the applicant is in a parental relationship. 22. Community expectations include the expectation that personal safety of citizens will not be put at risk and that offenders who commit abhorrent crimes will be removed from Australia. In assessing the level of risk posed by any individual, it is appropriate to consider the seriousness of his crime, the likelihood of recidivism and the value of his deportation as deterrence or discouragement for potential offenders of a similar kind. … 24. The Minister's Direction No. 9 paragraph 15 says: "'15. It is the Government's view that the Australian community trusts non-citizen residents to obey Australian laws. Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community. Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported. Weight should be given to this factor in proportion to the decision maker's understanding of the community's attitude to the potential deportee's offences. Decision makers should have due regard to the Government's view in this respect.'" 14 The task on which the AAT was engaged was determining the weight to be given to various factors which were relevant to the decision whether to deport the appellant or not, and deciding how the balance should be struck. One of those factors was whether the appellant had reformed. If he was a "changed man" then the likelihood of recidivism would not be a material consideration and the seriousness of the crimes which the appellant had committed would need to be balanced against his subsequent reformation. 15 The appellant's presentation at the hearing supported the conclusion that he was a changed man. In the AAT's view, an alternative possibility was that his favourable appearance was the product of chronic depression, rather than a basic character transformation. The AAT adopted the alternative possibility without telling the appellant that an issue which he needed to address was whether his favourable appearance at the hearing should be discounted because it was the product of chronic depression. 16 The circumstances here were such as to make applicable what, in Mahon v Air New Zealand Ltd [1984] 1 AC 808, Lord Diplock identified as one of the rules of natural justice. His Lordship said at 821: "The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result. (Original emphasis.)" See also Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, at 116 [par 78], (Gaudron and Gummow JJ) and 121 [par 101] (McHugh J). In Aala (supra), at par [101] McHugh J said: "One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding." 17 The mere fact that Mr Wilson gave it as his opinion that the appellant was suffering from depression, does not lead to the conclusion that the risk of the AAT proceeding as it did was necessarily inherent in the issues which the AAT had to decide in consequence of the introduction of Mr Wilson's evidence, or that the appellant should otherwise have been aware that this was an issue which he needed to address. 18 Counsel for the respondent submitted that even if a breach of the rules of natural justice did occur, it did not affect the outcome, as the AAT's decision was based upon the seriousness of the crimes which the appellant had committed. There are two answers to this submission. First, it is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness "could have made no difference" (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145), that relief will be withheld. The High Court has emphasised that such an outcome will be a rarity: Aala (supra) at [131] per Kirby J. It will be "no easy task to convince a court to adopt it" (Stead (supra) at 145). Second, the AAT was engaged in a balancing exercise as is reflected by par 22 of its reasons for decision. One does not know how the balance would have been struck had the appellant been given the opportunity of addressing the proposition which the AAT ultimately adopted. 19 For these reasons, the decision of the AAT was given in breach of the rules of natural justice. The proceedings at first instance 20 The primary judge determined the matter at a time when the decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (193 ALR 449) governed the construction and application of the privative clause contained in s 474 of the Act. NAAV (supra) decided that a decision given in breach of the rules of natural justice was "protected" by s 474 of the Act. 21 At first instance the appellant advanced a number of arguments in support of his contention that the proceedings before the AAT were vitiated by jurisdictional errors of various kinds. All of these arguments failed, having regard to the operation of s 474 of the Act as construed in NAAV. 22 One of those complaints (particular 5) was that the AAT acted in excess of jurisdiction and/or committed jurisdictional error in not complying with or in departing from the requirements of procedural fairness and/or natural justice in its assessment of the risk of recidivism. 23 The primary judge dealt with this complaint as follows: "The suggestion is made in particular (5) that the Tribunal, in assessing the risk of recidivism, considered Mr Bax's positive demeanour in the witness box and presentation at the hearing to have been at least in part the product of chronic depression. The Tribunal's words were: 'I think his compliant demeanour in the witness box was in part the product of chronic depression rather than a basic character transformation.' The Tribunal had had evidence from Mr Bax's parole officer that he suffered from depression. It found Mr Bax's presentation at the hearing to be consistent with the flat affect which is one of the hallmarks of chronic depression. It may be right to say that the Tribunal, absent medical expertise or expert evidence, was in no position to make that kind of judgment. But having said that much, is not to disclose an error which will vitiate the exercise of its power having regard to the operation of s 474 as construed in NAAV. Then it is said that the Tribunal did not draw to the attention of Mr Bax's counsel the way in which it intended to rely upon his client's demeanour. This was said to have been a departure from the requirements of procedural fairness. It is questionable whether there was in fact a breach of procedural fairness in this regard. After all, depression had been the subject of an express, albeit unqualified, opinion from the parole officer. In any event, again having regard to s 474 as construed in NAAV, breach of procedural fairness does not give rise of itself to a ground of review supporting the relief sought." 24 Those observations insofar as they relate to s 474 of the Act are a correct reflection of the law as it was understood to be at the time the observations were made, but are erroneous in the light of the subsequent decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] 195 ALR 24. That case decides that a decision "flawed for reasons of a failure to comply with the principles of natural justice is not a 'privative clause decision within s 474(2) of the Act'"; per Gleeson CJ at [83]. 25 It follows that the appeal from the decision of the primary judge must be upheld as his Honour's decision was based on a construction of s 474 of the Act which has since been rejected by the High Court. 26 For the reasons earlier given, we do not agree, with respect, with his Honour's tentative observation that it is merely "questionable" whether there was in fact a breach of procedural fairness. In our view there was a breach. Conclusion 27 The appeal from the decision of the primary judge should be upheld. - The decision of the AAT given on 29 October 2001 affirming the respondent's order that the applicant be deported from Australia should be quashed. - The application for a review of the respondent's decision should be remitted to the AAT, differently constituted, for determination in accordance with the law. - The respondent should pay the appellant's costs of this appeal, and of the proceedings at first instance. 28 It is unnecessary for us to consider the other matters relied upon by the appellant in his written submissions. The oral argument largely focused on the natural justice question. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 27 March 2003 Counsel for the Applicant: Mr A Karstaedt Solicitor for the Applicant: M Rothstein & Co Counsel for the Respondent: Mr P MacIver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 March 2003 Date of Judgment: 27 March 2003