Djalic v Minister for Immigration - [2003] FMCA 569

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DJALIC v MINISTER FOR IMMIGRATION

[2003] FMCA 569

MIGRATION – VISA – Visa cancellation – where applicant granted residency in 1970 – whether inability of applicant to read and understand documents sent by DIMIA meant that he was denied procedural fairness – whether applicant was denied a proper hearing on basis that he did not have an opportunity to address substantive matters adverse to him contained in the Issues Paper – whether power to exclude or remove an alien under s.51(xix) of the Constitution can be considered a means of punishment for criminal offences – where Minister considered the expectation of the Australian community that non-citizens should obey Australian law while in Australia in reaching his decision – whether such consideration amounted to retributive policy.

Migration Act 1958 (Cth), s.501
The Constitution

Cameron v Cole (1944) 68 CLR 571
Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127
Osborne v Minister for Immigration & Multicultural & Indigenous Affairs [2002] 124 FCR 416
Nguyen v RRT (1997) 74 FCR 311
Sullivan v Secretary, Department of Transport (1978) 20 ALR 323
Kioa v West (1985)159 CLR 550
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S154/2002 [2003] HCA 60
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069
M189 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1218
Chu Kheng Lim v Minister for Immigration & Local Government & Ethnic Affairs (1992) 176 CLR 1
Re Sergi and Minister for Immigration & Ethnic Affairs (1978-1980) 2 ALD 224

Re Gungor and Minister for Immigration & Ethnic Affairs (1980-1981) 3 ALD 225

Minister for Immigration & Ethnic Affairs v Pochi (1980) 31 ALR 666

Applicant:

DAVID DJALIC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1367 of 2003

Delivered on:

15 December 2003

Delivered at:

Sydney

Hearing date:

3 December 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr G Kennett

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondent:

Mr G Johnston

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1367 of 2003

DAVID DJALIC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

“This court has not closed its eyes to the drastic deprivations which may follow when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land where he has often no contemporary identification.” Woodby v Immigration Services (1966) 385 US 276 per Stewart J

David Djalic comes to this court seeking judicial review of a decision made by the Minister of Immigration and Multicultural and Indigenous Affairs on 17 January 2003 to exercise his discretion under subsection 501(2) Migration Act 1958 to cancel Mr Djalic’s Transitional (Permanent) Visa which he obtained pursuant to the Migration Reform (Transitional Provisions) Regulations on 1 September 1994 having been granted permanent residence upon his arrival at the age of 5 in Australia on 30 October 1970.
Section 501 of the Act is in the following form:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and

(b) the person does not satisfy the Minister that the person passes the character test.
On 10 December 2002 Mr Djalic was completing a prison sentence imposed upon him by the Central Local Court on 29 April 2002 for nine offences. On that day there were sent to the Deputy Governor of the Grafton Correctional Centre a facsimile cover sheet and a number of documents which were to be delivered to Mr Djalic. These documents came into the possession of Ms. Leanne Cook on

13 December 2002. She assumed responsibility for them being provided to Mr Djalic. This was done by calling over Mr Djalic from the exercise yard to a window in Ms Cook’s office. Ms Cook states that she handed each document individually to Mr Djalic, gave it its name and explained it briefly to him. Mr Djalic says that he was handed a bundle of documents at the window and asked to sign a receipt for them, which he did. He said that he was given no explanation of the documents other than that they came from DIMIA. He states that he was surprised and confused by receiving documents from DIMIA as he considered himself to be Australian.
The documents consisted of a document entitled “Notice of Intention to Consider Cancelling a Visa Under Subsection 501(2) of the Migration Act 1958” attaching a copy of s.501(1) of that Act, a document entitled “Migration Act 1958 – Direction under section 499 – Visa Refusal and Cancellation under section 501 Migration Act 1958”, a copy of a New South Wales Police Service Criminal History in the name of “Djalic, Duska” printed 11 July 2002, and a blank questionnaire form.
Mr Djalic claims that whilst he speaks English fluently he cannot read nor write it, although he can sign his name. He took the papers away into his cell. After lock-down he showed them to his cellmate. His cellmate read out the papers to him and together they completed the questionnaire which was returned to the prison authorities and sent by fax back to the Department on or about 14 December 2002. The document had required a response by 23 December 2002.
Under cross-examination Mr Djalic told counsel for the respondent that he knew that the Department wanted to cancel his visa but he thought they had made a mistake. He stated that he had known another prisoner in the same position and that that person and been warned three times and had told him not to worry. That is why he believed it was a mistake. I am satisfied from this evidence that Mr Djalic knew exactly what he was responding to, although he may not have appreciated the gravity of it.
Although the Minister made his decision on 17 January 2003 he did not supply reasons for that decision until 6 October 2003. In the meantime upon completion of his sentence Mr Djalic was transferred to Villawood detention centre where he now resides.
The amended application dated 29 October 2003 makes a claim that the decision was affected by jurisdictional error for two distinct reasons. The first is that the applicant was denied Procedural fairness in that:
“(a) He was unable to read the written notice of intention to consider cancelling his visa and therefore was not sufficiently advised of the nature of the decision or the issues to be addressed;
(b) He was not provided with any opportunity to address adverse comments or suggestions contained in the departmental submissions to the Minister dated 23 December 2002, which addressed issues not previously raised with or addressed by him, namely:
(i)“Although Mr Djalic stated in his submission that he would like to overcome his drug problems, he did not state whether or not he has attempted to address his drug problems in the past” (Relevant Documents (RD) p.11[31]);
(ii)“Mr Djalic also did not explain why his children are in the care of his mother and not their natural mother. It is unknown whether or not this is a temporary arrangement or whether Mr Djalic’s mother has been involved in their care for an extended period” (RD 13 [41]);
(iii)“Mr Djalic has not stated whether or not his children or his defacto spouse will accompany him in the event that his visa is cancelled resulting in his removal from Australia. … Furthermore, it is unknown whether his children will continue to reside with his mother or be cared for by their natural mother” (RD13 [44]); and
(iv)“It is unknown whether or not Mr Djalic’s children’s language skills are adequate for this transition. Having relatives who are first generation migrants from the former Yugoslavia and having resided with Mr Djalic’s mother, they may have a basic understanding of the language” (RD 14 [46]).
The second ground alleges:
“The decision was made for an improper purpose, or alternatively taking into account irrelevant considerations, in that a substantial purpose of the decision was the imposition of additional punishment on the Applicant.”
Mr Djalic argues that procedural fairness requires a person affected by an impending decision actually to be informed about matters such as the subject matter and potential consequences of the decision, and the closing date for making submissions: see Aronson & Dyer, Judicial Review of Administrative Action (2^nd Ed) 2000, 409. He says the requirement that such knowledge actually be imparted is clearest where, as here, the potential consequences of the decision involve serious detriment to the person based on findings about his or her character or conduct. Mr Djalic does not assert that the Department had notice of his inability to read. He says that it is quite sufficient that the method of notification chosen by the department was not effective in appraising him of the situation he faced. The applicant allies his position to that of a person who has not received notice of a proposed hearing; see Cameron v Cole (1944) 68 CLR 571; Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127. To ally the inability to understand the documents with the position of a person who has not been served could be dangerous. In Osborne v Minister for Immigration & Multicultural & Indigenous Affairs [2002] 124 FCR 416 at [20] French J held:
“The implied condition of notification is not absolute. It could not be. For otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires that only reasonable steps be taken to notify the visa holder.”
I am satisfied that what is required in the context of decision making of this kind is that the Minister take reasonable steps to notify the Applicant of any proposed visa cancellation and that:
“notice be given …in a sufficiently formal or official way to alert an ordinarily astute recipient… to its potential significance and the need to have it translated or to obtain advice about it.” Nguyen v RRT (1997) 74 FCR 311 at 320G per Tamberlin J and at 325C-G and 331 per Sundberg J.
I am also satisfied that the respondent’s obligation to proceed fairly does not extend to making sure that the applicant utilises the opportunity that he is given, see Sullivan v Secretary, Department of Transport (1978) 20 ALR 323. But most importantly I am satisfied on the facts of this particular case that Mr Djalic knew exactly what the purpose of the documents were. The decision which he took to deal with them in the manner in which he did rather than obtain advice was his alone. The evidence he gave allows for the inference that he did not believe that the Minister would cancel his visa on this, the first occasion, because the Minister had not cancelled the visa of the other prisoner who had had three such warnings. Whatever the reason might have been for Mr Djalic dealing with the communications from the Department in this way they were not induced by a failure to provide him with procedural fairness.
Mr Djalic claims that the Minister was entitled to rely on a report of his Department without providing him with a further opportunity to be heard only if that process resulted in him having received a proper hearing. He would not receive a proper hearing if the Issues Paper raised substantial matters adverse to him which he had not had an opportunity to address, see Kioa v West (1985) 159 CLR 550.
Mr Djalic submits that the comment “He did not state whether or not he has attempted to address his drug problem in the past” constitutes an inference that his failure to address that issue counts against him in some way. This, he says, is unfair because the question he was responding to asked him to explain whether he thought he had been rehabilitated. It was asking about a current position and not about any previous (and presumably failed) attempts to overcome his problems.
The nature of the requirement for procedural fairness in matters of this nature has recently been considered by the High Court in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S154/2002 [2003] HCA 60 and in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327. Both those cases approved of the decision of the Full Bench of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 where at 592 the Court says:
“The rules of natural justice are contravened when a decision maker fails to advise an affected person “of any adverse conclusion which has been arrived at which would not obviously be open on the known material”.”
In Palme Gleeson CJ, Gummow and Heydon JJ at [22] quote again from Alphaone :
“The decision maker is required to advise of any adverse conclusion that has been arrived at which would not obviously be open on the known material. Subject to these qualifications, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”
The decision maker is not obliged “to prompt and stimulate an elaboration that the applicant chooses not to embark on” S154 (supra) at [54 and 58] per Gummow and Heydon JJ.
In Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 Hely J considered a matter very similar to the one before me in which complaints were made about remarks contained in the issues paper. At [41] his honour said:
“At the highest, the observations in par [26] of the Issues Paper are a departmental evaluation of the risk of recidivism based on materials disclosed to, or emanating from the applicant. The assessment concerned a matter which the applicant had already addressed. Procedural fairness does not normally require a decision maker to disclose the decision maker’s thinking process or proposed conclusions: Aronson & Dyer Judicial Review of Administrative Action (2^nd Ed) at 420. The Issues Paper is an integral part of the decision making process itself, and is not to be equated with information obtained from a third party about the applicant which is required to be disclosed to him in accordance with ordinary principles: Bushell v Secretary of State for the Environment [1981] AC 75 at 95-96 (Lord Diplock) and cf Kioa v West (1985) 159 CLR 550, 587 (Mason J). In R v Secretary of State for Education; Ex parte S (CA) [1995] 2 FCR 225, Russell LJ said at 231-232:
“The basic proposition of Mr Richards in this appeal was to the effect that the process of government necessarily involves civil servants engaging in a host of consultative exercises inter se, applying their individual expertise and experience to a given problem. The ultimate decision of the Minister in a case where there has been such consultation is a matter of judgment for the decision-maker. How he reaches his decision is essentially a matter for him. It may involve extensive “in house” consultation, but, provided the process does not involve a new point with which the interested parties have had no opportunity of dealing, there is no duty to disclose material the product of the consultative process. The concept of fairness does not normally require disclosure. If it does not then there should be disclosure. That will only arise in the most exceptional circumstances not applicable to the instant case.
For my part I accept these submissions, and I find considerable support for them in Bushell and Another v Secretary of State for the Environment [1981] AC 75.”
This is not a case (as was Kioa v West) where the departmental submission contained materials which had not been disclosed to the applicant, as opposed to the Department’s assessment of known materials on an issue which the Minister’s Direction had identified as a critical issue: see Aronson & Dyer (supra) at 426. In Kioa v West at 558, Mason J observed that material which consists of ‘policy, comment and undisputed statements of fact’ does not call for a chance to reply.”
I cannot see that the comments made in the Issues Paper in this case are any different from those discussed above and I am therefore unable to see that the failure to disclose them to the applicant involved a want of procedural fairness
The other comments which the applicant submits should have been raised with him all relate to the situation of his children. The remarks made are comments upon the submissions put by the applicant in his answers to the questionnaire. The respondent notes that the papers delivered to Mr Djalic make it quite clear that he was not confined to answering the questions in the questionnaire and that he had the opportunity to put forward anything else that he wished to say. The respondent argues that the references to Kioa are of no assistance to the applicant because that case was not concerned with mere shortcomings in, or things left unknown by what the applicant had himself put forward. It was a case concerned with adverse material /allegations from sources other than the applicant, about the applicant, the substance of which could not be expected to be within the applicant’s own knowledge and which he had no reasonable opportunity to address. The comments about the children are all hypotheses. The writer of the submissions has not come to any conclusion; presumably because he had no evidence on which to base those conclusions. I think it is difficult to escape the view taken by the respondent in his submissions that the applicant’s complaints amount to no more than that he ought to have been prompted or stimulated to elaborate upon his statements in those respects, which is precisely what Gummow and Heydon JJ found not to be required in S154 at [58]; also M189 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1218 at [20].
The power to exclude or remove an alien is allocated to the Commonwealth by s.51(xix) of the Constitution. There is no dispute that this power may validly be conferred upon the Executive. The applicant submits that this is not a power that extends to (or is to be used for) the imposition of punishment for criminal offences; the ascertainment of guilt or innocence and the imposition of punishment are exclusively judicial functions; see Chu Kheng Lim v Minister for Immigration & Local Government & Ethnic (1992) 176 CLR 1 at [27] per Brennan, Deane and Gaudron JJ. It follows that s.501(2) would be inconsistent with Chapter III of the Constitution if it authorised the cancellation of a person’s visa for the purpose of imposing punishment on him or her in respect of an offence or offences. By applying the provisions of s.15A of the Acts Interpretation Act 1901 (Cth) it can be said that s.501(2) does not authorise the cancellation of a visa for the purpose of punishment.
Support for this submission is found in the judgment of Davies J sitting as Deputy President of the Administrative Appeals Tribunal in Re Sergi and Minister for Immigration & Ethnic Affairs (1978-1980)

2 ALD 224 at 231 where His Honour says:
“If an order for deportation were made in a case where the sole or substantial factor justifying deportation was the deterrence of others from committing a crime, the making of the order of deportation would serve as a punishment of the criminal. The additional detriment of deportation would be imposed on him, not because he himself was a danger to the community or a person whose continued presence in Australia was undesirable, but as a detriment or punishment consequent upon the commission of the crime, which detriment or punishment would serve as a deterrent to others from so acting.”
Support is also found in the judgment of Smithers J also in his role as Deputy President of the Administrative Appeals Tribunal in Re Gungor and Minister for Immigration & Ethnic Affairs (1980-1981) 3 ALD 225 where at 227 he says:
“To use the powers conferred by the Migration Act 1958 for the purposes of punishment and deterrence is in substance to discriminate against immigrants and aliens by subjecting them to an additional sanction not applicable to other persons for the breaches of criminal law.”
And at 229:
“To my mind the dominating consideration is that in respect to a crime in the lower range of drug criminality and for which punishment has been imposed and undergone, it would be oppressive to add deportation to that punishment unless it be thought necessary and appropriate to impose it for the protection of the Australian community against a particular individual.”
And at 232:
“Once it appears that the basic reasons for the deportation of a particular person is deterrence of others from crime and not that the individual himself is a threat to the Australian community, then deportation is but a double punishment in an area of criminal law.”
His Honour who was there dealing with a merits review came to a conclusion at [233]:
“In the result it is my conclusion that to apply further punishment in the form of deportation to the applicant would be an exercise in harshness not appropriate in the conduct of good government or in the best interests of Australia.”

Those two decisions seem to me to put the applicant’s case at its very highest. Smithers J sat on the Full Bench with Deane and Evatt JJ, but did not comment on that part of the judgement in Minister for Immigration & Ethnic Affairs v Pochi (1980) 31 ALR 666 where at 685 Deane J said:
“If the slate were clean, I should have thought there was a great deal to be said for the view that banishment, consequent upon his conviction of a criminal offence, of one who has become an accepted member of the Australian community was an interference with personal liberty by way of punishment (see eg, the dissenting judgment of Field J in Fong Yue Ting v United States (1892) 149 US 689 at 748-9.) If that view were correct a question would arise as to whether a provision purporting to confer upon an executive officer of the Commonwealth a power as close to the heart of judicial power as the subjection of the individual to interference with personal liberty by way of punishment was consistent with the provisions of Chapter III of the Constitution. It has however been said in many cases, that deportation cannot properly be regarded as punishment of an offence (see for example, Koon Wing Lau v Calwell (1949) 80 CLR 533 at 555; Ex parte Walsh and Johhnson; In re Yates (1925) 37 CLR 36 at 61; O’Keefe v Calwell (1949) 77 CLR 261 at 278). The validity of legislation entrusting to executive officers and organs, decisions as to the deportation of established residents has been long accepted (see, for example, Walsh and Johnson, supra, at 68-69, 96; Koon Wing Lau v Calwell, supra, at 555).”
The difficulty which the applicant faces in this case is that whilst deterrence was a matter considered by the Minister it is one which he indicates in his statement of reasons was given little weight, even though it was identified as a strong interest of the government in the Issues Paper.
The applicant concedes that there is no constitutional difficulty with all the other matters but one that the Minister took into consideration when deciding to revoke the visa. The one exception is the Minister’s consideration of “the expectation of the Australian community that non-citizens shall obey Australian laws while in Australia.” The applicant considers this to be a retributive policy directed at non-citizens and for it to be a justification for visa cancellation and removal from Australia gives those actions the character of additional punishment.
I do not accept this submission. I do not think that the words used have the characterisation placed upon them by the applicant. I think that the words are no more than an anodyne expression of the obvious, namely that every person who comes into Australia is obliged to obey its laws and the fact that they are not from Australia should not give them any greater rights than if they were.
What is left is a decision of the Minister that was clearly made primarily on the basis of considerations of good order and governance and for the protection of the residents of Australia. The decision does not reach the heights required by the dicta in Sergi or Re Gungor previously cited. Deterrence was neither the sole nor a substantial factor justifying the Minister’s decsion.
The applicant has been unable to make out his grounds of application and the proceedings must be dismissed. I order that the applicant shall pay the respondents costs which I assess in the sum of $5000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: