No duty to inquire: exception to the rule?

Federal Court (Full Court): The question to the Assistant Minister under s 501CA was whether there was "another reason" why the cancellation of the Respondent's visa should be revoked. The Respondent did not provide evidence, in his revocation request, of the circumstances which led to the offences. The Assistant Minister found, based on very limited information, that the Respondent posed an unacceptable risk to the Australian community. Was the limited information, in and of itself, a probative basis for that finding?

Summary

According to Mortimer J, "[u]ntil he was 46 years of age, [the Respondent] led an apparently respectable life pursuing his business of painting and decorating. He had three different relationships that had produced six children, aged, at the date of the Minister’s decision, between two and 24 years old... At the age of 46, for reasons which are unknown, Mr Splendido’s life changed very much for the worse. He was convicted of a series of crimes".

As a result of those offences, the Respondent's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). The Respondent made representations seeking revocation of that cancellation pursuant to s 501CA. The Respondent was self-represented in that request.

As part of that request, there Respondent's relatives provided the Assistant Minister with overwhelming evidence of the adverse effect that the removal of the Respondent from Australia would have on them.

The information that was before the Assistant Minister, who personally made the decision on whether to revoke the cancellation, was very limited. In essence, it comprised the representations made by the Respondent and his relatives and a National Police Certificate, which recorded the Respondent's offences.

Mortimer J said the following about the limited information before the Assistant Minister: there were "no sentencing remarks, no police summaries of the offending conduct, no evidence put before any of the courts which convicted [the Respondent], no reports from [the Respondent's] time within the correctional system about his behaviour or rehabilitation, no parole records, no reports or correspondence from treating psychiatrists, drug rehabilitation therapists or the like".

Subsection 501CA(4) provided as follows (emphasis added):

(4)  The Minister may revoke the original decision if:

(a)  the person makes representations in accordance with the invitation; and

(b)  the Minister is satisfied:

(i)  that the person passes the character test (as defined by section 501); or

(ii)  that there is another reason why the original decision should be revoked.

As the Respondent did not satisfy the character test, the question to the Assistant Minister was whether there was another reason why the cancellation decision should be revoked.

The Assistant Minister determined that question by reference to whether or not the Respondent represented an unacceptable level of risk to the Australian community.

In order to determine whether the Respondent represented an unacceptable level of risk to the Australian community, the ultimate question to the Assistant Minister was whether it was likely that the Respondent would re-offend. The Assistant Minister answered the latter question in the affirmative, by reference to the limited information before him. In other words, despite not having information about the circumstances that led to the Respondent's offences, the Assistant Minister found that he was likely to re-offend.

As a result, the Assistant Minister decided not to revoke the visa cancellation and the Respondent "appealed" that decision to the Federal Court (FCA).

A single judge of the FCA allowed the "appeal" and the Minister eventually appealed the FCA's decision to the Full Court of the FCA (FCAFC).

The questions to the FCAFC were as follows:

Question 1: Was the Assistant Minister required to approach s 501CA(4)(b)(ii) by asking whether the Respondent represented an unacceptable level of risk to the Australian community?

Question 2: Was the Assistant Minister allowed to approach s 501CA(4)(b)(ii) by asking whether the Respondent represented an unacceptable level of risk to the Australian community?

Question 3: Was the Assistant Minister allowed to determine whether the Respondent represented an unacceptable level of risk to the Australian community by asking whether the Respondent was likely to re-offend?

Question 4: Does the Assistant Minister have a general duty to investigate the circumstances that led to an offence in the context of determining, pursuant to s 501CA(4)(b), whether there is another reason why a visa should not be cancelled?

Question 5: If the answers to Questions 2 and 3 are "yes" and the answer to Question 4 is "no", was it open to the Assistant Minister to find that the Respondent was likely to re-offend based on the limited information before him?

Question 6: If the answer to Question 5 is "no", was the fact that the Respondent was self-represented in his revocation request a relevant factor?

Question 7: If the answer to Question 5 is "no", was there any other relevant factor?

The FCAFC answered as follows:

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