Can a mere assertion of fact amount to a denial?

Federal Court (Full Court): In her visa cancellation revocation request, the Respondent made an "uncontentious assertion" that the sentencing remarks relating to her most recent convictions made no reference to whether those convictions involved drug use. The Minister took that assertion as a denial that those convictions were drug related and inferred that, because of the denial, she was likely to re-offend. Should the Minister have put the Respondent on notice that her "uncontentious assertion" would be critical to his decision?

Summary

The Respondent was convicted of some minor drug-related offences between 1994 and 2002. She was then convicted of murder and burglary in 2005.

The Appellant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). The Appellant then made representations seeking revocation of that cancellation pursuant to s 501CA.

As the Respondent did not dispute that she failed the character test, the question to the Minister was whether there was another reason why the cancellation should be revoked, pursuant to s 501CA.

In her revocation representations, the Respondent said, among other things, that none of the allegations which led to the 2005 convictions involved illegal recreational drugs and that "I do not have a drug, alcohol or gambling problem", which the Court referred to as the Respondent's "uncontentious remarks".

In fact, "neither the sentencing remarks relating to the murder and burglary convictions, nor the reasons for judgment of the Queensland Court of Appeal, suggest that drugs played any role in the commission of those offences". There was otherwise no suggestion in the material before the Minister that drugs played any role in those offences.

The Minister took those "uncontentious remarks" to be a denial by the Respondent that the 2015 offences were drug-related. Further, the Minister inferred that that denial demonstrated that the Respondent was likely to re-offend. The Minister did not put the Respondent on notice that her "uncontentious remarks" were critical to his decision.

The Minister refused to revoke the visa cancellation based on his finding that the Respondent was likely to re-offend. The Respondent was successful in judicial review proceedings before a single judge of the Federal Court (FCA). The Minister eventually appealed the FCA's decision to the Full Court of the FCA (FCAFC).

The question to the FCAFC was whether the Minister's inference was something that was objectively obvious in the circumstances, with the consequence that the Minister did not need to draw the Respondent's attention to the fact that such an inference would play an important role in his decision?

The FCAFC answered as follows:

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