Black v Minister for Immigration and Citizenship

Case [2007] FCA 1249

FEDERAL COURT OF AUSTRALIA

Black v Minister for Immigration and Citizenship [2007] FCA 1249

ADMINISTRATIVE LAW – application for constitutional writs – where applicant’s visa cancelled under s 501(2) Migration Act 1958 (Cth) – where Ministerial Direction No 21 made under s 499 Migration Act 1958 (Cth) – where decision to cancel visa made by Minister personally and not by a delegate – where applicant had no children – where Minister gave considerable weight to ‘the best interests of the child’ – whether Minister misconstrued Direction No 21 – whether Minister bound by Direction No 21 – whether misconstruction of Direction No 21 amounted to jurisdictional error – whether applicant entitled to expect that ‘the best interests of the child’ would not be considered – whether applicant denied procedural fairness.

Held: Minister misconstrued Direction No 21 by taking into consideration the fact that the applicant had no children under the ‘best interests of the child’ consideration –Minister not bound by Direction No 21 – fact that the applicant had no children could be taken into account within s 501(2) Migration Act 1958 (Cth) – Minister did not fall into jurisdictional error – no representation that applicant’s family circumstances would not be taken into consideration – applicant not denied opportunity to put before the Minister relevant factual material or other submissions – applicant not denied procedural fairness – application dismissed.

Migration Act1958 (Cth) s 501

Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 referred to
Minister for Immigration and Ethnic Affairs v Gray (1994) 50 FCR 189 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to
Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1 referred to

IAN BLACK v THE HONOURABLE KEVIN ANDREWS MP, MINISTER FOR IMMIGRATION AND CITIZENSHIP
SAD 43 OF 2007

BESANKO J
17 AUGUST 2007
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 43 OF 2007

BETWEEN:

IAN BLACK
Applicant

AND:

THE HONOURABLE KEVIN ANDREWS MP, MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

17 AUGUST 2007

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The applicant has leave to amend the application to allege that a breach of the rules of procedural fairness occurred in relation to the making of the decision.

2.        The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 43 OF 2007

BETWEEN:

IAN BLACK
Applicant

AND:

THE HONOURABLE KEVIN ANDREWS MP, MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

JUDGE:

BESANKO J

DATE:

17 AUGUST 2007

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. This is an application for constitutional writs in relation to a decision of the Minister for Immigration and Citizenship. On 20 February 2007, the Minister decided to cancel the…

Continue reading Black v Minister for Immigration and Citizenship

Sign in free to access the full text

Details
AGLC
Black v Minister for Immigration and Citizenship [2007] FCA 1249
Case
[2007] FCA 1249
Decision Date

CaseChat Overview and Summary

In the case of Black v Minister for Immigration and Citizenship, the applicant, who had been living in Australia since he was 15, sought constitutional writs to challenge the Minister for Immigration and Citizenship’s decision to cancel his visa. The Minister had decided to cancel the applicant’s visa under section 501 of the Migration Act 1958 (Cth) and provided written reasons for his decision under section 501G of the Act. The applicant contested the decision, arguing that he had not been given a fair opportunity to respond to the allegations against him.

The central legal issues before the court were whether the Minister had breached the rules of procedural fairness in making the decision to cancel the applicant's visa and whether the decision was effectively futile. The applicant contended that he had not been adequately informed about the topic of children and the best interests of children in relation to his visa cancellation, and that any submissions he made were rendered futile as a result. The court needed to determine whether the Minister's decision-making process had been fair and whether there was any practical injustice caused by the Minister's failure to consider certain factors.

The court found that the applicant had not been misled into believing that the topic of children and the best interests of children would not be considered in the visa cancellation decision. The court also concluded that there was no practical injustice in the Minister's decision, as the applicant had been given a full opportunity to be heard on the matters ultimately taken into account by the Minister. Consequently, the court dismissed the applicant's application. The court did, however, grant the applicant leave to amend the application to include an allegation of a breach of the rules of procedural fairness in relation to the decision-making process.

ORDERS:
1. The applicant is granted leave to amend the application to include a claim of a breach of the rules of procedural fairness in relation to the decision-making process.
2. The application is dismissed.

Orders

Orders of the court

1. The applicant has leave to amend the application to allege that a breach of the rules of procedural fairness occurred in relation to the making of the decision.

2. The application be dismissed.

Background

Background to the litigation

This is an application for constitutional writs in relation to a decision of the Minister for Immigration and Citizenship. On 20 February 2007, the Minister decided to cancel the applicant’s visa. The applicant held a transitional (permanent) visa Class BF granted to him by operation of law on 1 September 1994 under the Migration Reform (Transitional Provisions) Regulations, and the Minister made the decision to cancel the applicant’s visa under s 501 of the Migration Act 1958 (Cth) (“the Act”). The Minister gave written reasons for his decision under s 501G of the Act.The facts The applicant was born in the United Kingdom on 21 March 1940. He came to Australia from Scotland in 1955 when he was 15 years old. He came with his parents and his younger brother. In Australia the applicant did a printing apprenticeship and then he obtained work as a printer. He resigned from his employment in December 2002. In 1983, the applicant committed two offences of indecent assault. He was convicted of those offences and sentenced to 12 months’ imprisonment in relation to each offence. It seems that an order was made that the sentences be served concurrently. However, the sentences of imprisonment were suspended upon the applicant entering into a bond to be of good behaviour for two years. On 10 December 2002, the applicant committed two offences of indecent assault of a person under the age of 12 years, and two offences of unlawful sexual intercourse with a person under the age of 12 years. The victim in each case was a boy aged 11 years. On 2 July 2003, a Judge of the District Court of South Australia imposed one sentence of imprisonment with respect to the various offences of five years and six months, commencing on 20 February 2003 with a non-parole period of three years. The Judge said that, but for the applicant’s pleas of guilty, the sentence of imprisonment would have been eight years. The applicant was released on parole on 19 February 2006. On 7 August 2006, the Department of Immigration and Multicultural Affairs advised the applicant by letter that consideration was being given to the cancellation of his visa under s 501(2) of the Act. The applicant was given a copy of the relevant statutory provisions and the relevant direction under s 499 of the Act (Direction – Visa Refusal and Cancellation under Section 501 – No 21) (“Direction No 21”) and invited to make submissions to the effect as to why his visa should not be cancelled. By letter dated 15 August 2006 the applicant made submissions to the effect that his visa should not be cancelled. The Department wrote to the applicant again on 4 October 2006 advising him that it had reports of the Parole Board of South Australia relating to his case and inviting him to make further submissions. The applicant made further submissions by letter dated 4 October 2006. On 20 February 2007, the Minister decided to cancel the applicant’s visa. An officer of the Department had prepared a report and the Minister noted on that report his decision to cancel the visa. The written reasons of the Minister are signed by him and dated 20 February 2007. By letter dated 28 February 2007, the applicant was advised of the Minister’s decision and was given a copy of the Minister’s reasons.The Minister’s reasons

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BESANKO J
In my opinion, there are two answers to that submission. First, I am not satisfied that it can be inferred that the correspondence from the Department would have led to the belief (based on reasonable grounds) that the topic of children and the best interests of children would only be dealt with in the manner contemplated by Direction No 21 and not otherwise. In this case it is a matter of looking at what may be reasonably inferred from the letters sent by the Department and other circumstances. It was not contended that the applicant’s actual belief is relevant; in any event there was no evidence of his belief. It seems to me that the significance to the decision of having a family including children in Australia or not having a family for a person facing the cancellation of their visa would be obvious. Furthermore, I note that although it appears under the heading of “Other considerations” in Direction No 21, the Direction identifies “family composition of the non-citizen’s family, both in Australia and overseas” as a relevant consideration: cl 2.17(d). Secondly, I do not think it can be said that any practical injustice has been shown: Lam at 14 [38] per Gleeson CJ, at 34-35 [106] per McHugh and Gummow JJ. I realise that the Court must be careful not to engage in a determination of the merits of a decision under the guise of considering an argument as to futility. However, in this case I do not think there was any practical injustice to the applicant. In practical terms he was afforded a full opportunity to be heard on the matters ultimately taken into account by the Minister.Conclusion In my opinion, the application must be dismissed. I will hear the parties on costs.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

Full text does not contain this section.