El-Masri v Minister for Immigration - [2003] FMCA 344

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EL-MASRI v MINISTER FOR IMMIGRATION

[2003] FMCA 344

MIGRATION – Review of Minister’s decision to cancel visa under s.501 of the Migration Act 1958 (Cth) – whether application was denied procedural fairness where the applicant was not given opportunity to respond to evidence of the wife prior to the Minister making the decision – where there is a requirement of natural justice that an applicant has the opportunity to know the case put against him – whether the Minister failed to deal with the children’s interests individually – whether the decision was unreasonable in the Wednesbury sense – whether the decision was affected by jurisdictional error.

Migration Act 1958 (Cth), ss.501(2), (6), (7), 501G(1)(e) and 474

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Kioa v West (1985) 159 CLR 550

Minister for Immigration; Ex parte Lam (2003) 195 ALR 502
VEAL v Minister for Immigration [2003] FCA 437
VAAC v Minister for Immigration [2003] FCAFC 74
NAFF v Minister for Immigration [2003] FCAFC 52
Stead v State Government Insurance Commission (1986) 161 CLR 141
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Dagli v Minister for Immigration [2003] FCA 497
Ongel v Minister for Immigration [2003] FCAFC 522
Ayan v Minister for Immigration [2003] FCAFC 7
Minister for Immigration v W157/00A [2002] FCAFC 28
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Aksu v Minister for Immigration [2001] FCA 514

Applicant:

AHMAD SALAH EL-MASRI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1421 of 2003

Delivered on:

19 August 2003

Delivered at:

Sydney

Hearing date:

7 August 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Ms L McManus

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1421 of 2003

AHMAD SALAH EL-MASRI

Applicant

And

MINISTER FOR IMMIGRATION &MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

These proceedings are brought by the applicant who seeks review of a decision made by the Minister for Immigration & Multicultural & Indigenous Affairs on 25 August 2002 to cancel the applicant’s Transitional (Permanent) Visa which followed upon his being granted permanent residency on his arrival in Australia as a 12 year old on

21 September 1976. The procedure by which the Minister cancelled this visa is set out in s.501 of the Migration Act 1958 (“the Migration Act”).
Section 501(2) of the Migration Act provides that the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s.501(2)(a)) and the person does not satisfy the Minister that he/she in fact passes the character test (s.501(2)(b)). Under s.501(6)(a) a person does not pass the character test if he/she has a substantial criminal record within the meaning of s.501(7). Under s.501(7)(c) a person is deemed to have a substantial criminal record if he/she has been sentenced to a term of imprisonment of twelve months or more.
The applicant came to the attention of the Minister for the purposes of s.501 because on 3 March 2000 he was sentenced by the District Court of New South Wales to three offences of armed robbery with a minimum term of two years and an additional term of two years. I note here that this is the correct description of his conviction and sentence found at [CB 27-28] being the certificate of conviction from the District Court. Elsewhere in the court book and in the Minister’s reasons for decision (Exhibit 1) the convictions are wrongly recorded as two convictions for armed robbery and two convictions for robbery in company.
In accordance with the usual practice in these cases the applicant was sent a letter on 13 April 2000 informing him that his visa may be liable to cancellation under s.501 and giving him as the relevant grounds those found in s.501(6)(a). The letter provided the applicant with a full text of s.501 and attached Minister’s Direction No.17 titled “Direction under s.499” which lists the matters the Minister will take into account when making his decision on the matter. The applicant was enjoined in preparing any comments to read fully and carefully the contents of the Minister’s direction and to address each and every topic that he felt applied to him or was relevant to his circumstances. The applicant was offered an opportunity to provide any further information that he felt the Minister ought to be aware of and take into account.
On or about the 29 January 2002 a further letter in similar form, although adding as a relevant ground subparagraph 501(6)(c)(i), was handed to the applicant. On 5 June 2002 a representative of the Department held a meeting with the applicant the particulars of which were reduced to writing and are found at [CB 46 - 54]. The document concludes:
“This is the conclusion of the interview. A copy of this will be sent to you. You will be given the opportunity to amend any of the above recorded information, as well as submit any further information that you consider relevant.”
On 25 June 2002 a letter was sent to the applicant providing him with a copy of his criminal history and offering him the opportunity to comment upon it. On 2 July 2002 a further letter was sent to the applicant being a notice of intention to consider cancelling a visa under s.501(2) of the Migration Act. It noted that the matters to be taken into account by the Minister included his criminal history (a copy of which was attached) and the Judge’s comments made on 3 March 2000 when he was sentenced. The letter referred to the fact that the Minister would have regard to the Minister’s Direction No.21, a copy of which was also included.
In the notes of interview with the applicant he suggested that the Department contact his wife although this was the day before he was due to appear in court in respect of an application by his wife arising out of a breach of an apprehended violence order. The Department interviewed the wife and notes of her interview are found at [CB 86]. She indicates that she does not wish him to be returned to Lebanon but she also states in response to a question about her views on the applicant’s conviction:
“I am not happy about my husband’s offence.”
She speaks of his violence towards her and indicates that in general he has slowed down.
In accordance with the usual practice of the Department a detailed briefing note was prepared for the Minister to seek his decision on whether or not the applicant passed the character test and if not whether his visa should be cancelled. The briefing report to which is appended at page 16 the Minister’s decision is found between [CB 104 and 120].
Following the receipt of the Minister’s adverse decision the applicant sought legal advice and obtained from the Minister a set of reasons for his decision, which I have admitted into evidence as Exhibit 1. The Minister notes in those reasons that in making his decision he took into account the briefing paper, all the matters referred to in it and all the annexures to it.
The applicant seeks review of the decision of the Minister. The application that he filed originally was prepared by himself and is therefore of little assistance. However, after obtaining the assistance of Ms McManus, who appeared on his behalf before me, an outline of submissions which constitute his grounds was prepared. This decision of the Minister is a privative clause decision within the meaning of s.474 of the Migration Act. However, it is also a decision to which the rules of natural justice apply (s.501(2) of the Migration Act). Since the decision of the High Court of Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a decision which is found to have been made in breach of the rules of natural justice may be considered to be a decision made without jurisdiction and therefore one which is not susceptible to the privative clause.
At the commencement of the proceedings the applicant filed without objection an affidavit from Mrs El-Masri which sought to clarify her relationship with her husband and the effect upon her and the family of him being deported. The affidavit was not before the Minister.
The applicant submits that in making his decision the Minister took into account material directly relevant and adverse to the applicant without giving the applicant notice of the material or any opportunity to address it. He claims that that adverse material was:
(a)His wife’s statement that he did not live with her any more and that she doesn’t know where he is (Reasons paragraph 26).
(b)The lack of verification of the circumstances of the assault upon Mrs El-Masri.
(c)The possible impact of the applicant’s prior conduct on the children (Reasons paragraph 24).
In paragraph 10 of the Minister’s statement of reasons he explains how he exercised his discretion. After indicating that he followed his usual practice to proceed in accordance with Direction No.21 he stated that he gave primary consideration to the protection of the Australian community, the expectations of the Australian community and the best interests of the child and then went on to consider other considerations in relation to the applicant. The consideration that he gave to the statement given by Mrs El-Masri is referred to under “other considerations” in paragraph 26. In contrast to other paragraphs no weighting is attached to that consideration. I am of the view that any failure of procedural fairness that might arise out of what occurred is a failure of the type described in Kioa v West (1985) 159 CLR 550 referred to by McHugh and Gummow JJ in Minister for Immigration; Ex parte Lam (2003) 195 ALR 502 at [58]:
“This is not a case where procedural fairness was denied because the decision in question was made upon material obtained by the decision-maker from another source, without affording the applicant the opportunity to deal with that material. Kioa v West [25] is the paradigm example of such a situation.”
In Kioa the impugned material consisted of a submission by the Department to the delegate that:
“Mr Kioa’s alleged concern for other Tongan illegal immigrants in Australia and his active involvement with other persons who are seeking to circumvent Australia’s immigration laws must be a source for concern.”
Wilson J at [22] of his judgment said:
“The source of the allegation does not appear in the submission and there is nothing in the material submitted to the delegate on behalf of Mr and Mrs Kioa which would justify or support it. The allegation was clearly prejudicial to the application to be allowed to stay in Australia. Ordinarily, procedural fairness would require that such an allegation be put to them and they be given an opportunity to answer it before the decision was made.”
Brennan J at [38] of his judgment said:
“A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise (Kanda v Government of Malaya (1962) AC 322, at 337; Ridge v Baldwin, per Lord Morris at pp 113-114; De Verteuil v Knaggs, at pp 560, 561). The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed…Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made…The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr and Mrs Kioa be deported left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case…which would have made it unreasonable to have given Mr and Mrs Kioa that opportunity. The failure to give Mr Kioa that opportunity amounts to a non-observance to the principles of natural justice.”
These views have been supported in the Federal Court in cases such as VEAL v Minister for Immigration [2003] FCA 437 where the court held that the Tribunal was under a duty to accord procedural fairness to the applicant’s in respect of a “dob-in letter”. Disavowal of reliance on the letter was not sufficient to justify the failure of the Tribunal to provide any of the information contained in the letter to the applicants. In VAAC v Minister for Immigration [2003] FCAFC 74 at [27] the Full Bench said:
“Determining the appellant's prospects of success on the appeal requires consideration of the merits of the new ground. It is well established that the rules of natural justice require that a decision-maker bring to an applicant's attention the critical factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa v West (1985) 159 CLR 550 at 587; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481; and Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557...”
The obligation to provide a party with the right to respond to adverse evidence was expressed to be “one of the most important aspects of natural justice” in Dagli v Minister for Immigration [2003] FCA 497. As held by Hill J at [61]:
Counsel for the Minister submitted that there was no "practical injustice" in the present case in the Minister not providing the applicant with the statement. Reference was made to the judgment of Gleeson CJ in Minister for Immigration and Multicultural Affairs, Ex parte Lam (2003) supra. One must be careful how one uses expressions of that kind without reference to the context in which they appear. That case was not one where the applicant was not given the opportunity to rebut material put against him. The case for the applicant in Lam was that his expectation that the procedure foreshadowed in correspondence that a particular person would be contacted had not been followed. The Chief Justice rejected the case so far as it was said to rely upon some general doctrine of legitimate expectation. His Honour also pointed out that the applicant had not shown that he was reasonably entitled to expect the suggested procedure would be followed or to show that he had any subjective expectation in consequence of which he would do or omit to do anything. It was in this context that the Chief Justice noted that no practical injustice had been shown because the applicant had lost no opportunity to advance his case. The present is not a case where there is any issue of reliance involved. The present is a case where an adverse case is put to the Minister and the detail of that adverse case is unknown to the applicant who had, in consequence no opportunity to rebut it. In so far as it is necessary to show, in all cases involving natural justice that there is some "practical injustice" that stems from the denial to the applicant of the opportunity to put his case.”
In the case before me the information from Mrs El-Masri was taken into account by the decision-maker and referred to in paragraph 26 of the Minister’s reasons. The High Court in Kioa v West, albeit it reluctantly, referred back to the Minister for reconsideration his decision when it was quite clear that the information that was complained about had not exercised the mind of the decision-maker at all. The principles of natural justice advocated in Kioa have never been the subject of criticism although subsequent cases have reinforced the need to determine these matters on a case by case basis. Once a non-observance of the requirements of natural justice has been established, it is only if it is positively concluded that observance of the requirements “could not possibly have produced a different result” that the decision impugned will be allowed to stand: NAFF v Minister for Immigration [2003] FCAFC 52; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 88, 116-117, 122, 130-131. This was reinforced in Muin v Refugee Review Tribunal (2002) 190 ALR 601 by Hayne J at [140]:
“Not every departure from the rules of natural justice automatically invalidates a decision adverse to the party affected by the breach. Nevertheless, once a breach of natural justice is proved, a court should refuse relief only where it is confident that the breach could not have affected the outcome of the case.”
Further, in Dagli, Hill J found:
“[70] The question with which I am left is whether the denial of natural justice to the applicant which I have found can be said, nevertheless, to have had no effect on the decision (as counsel for the Minister submits) or whether the situation is one where the denial of natural justice is one which might have impacted the outcome, as the solicitor for the applicant submits.
[71] Not without some hesitation I am inclined to the view that the matters in the Issues Paper which were adverse to the applicant and which he may have had the opportunity of answering were he advised of them were not really matters which went to the opinion that the Minister formed. It is clear that the overwhelming factor considered by the Minister was the seriousness of the criminal conduct of the applicant and the expectation of the Australian community…”
The applicant also has not put any evidence before the court as to what, if any, additional information would have been supplied: Minister for Immigration; Ex parte Lam (2003) 195 ALR 502 at [37] per Gleeson CJ; Ongel v Minister for Immigration [2003] FCAFC 522 at [62]. The wife’s affidavit doesn’t seem to rebut the Ministers finding. She says:
“[10] I have seen a File Note in the Minister’s file which states that on 15 July 2002 I stated that my husband does not live with me anymore and that we rarely talk, and that I do not know where he is.
[11] This was after the assault on me by Ahmad. Around this time we did argue. I had health problems which caused me to be more aggressive. Ahmad also had problems. We attempted to sort out our problems. The Apprehended Violence Orders did not stop Ahmad from coming to our house.
[12] Ahmad slept at my house a week prior to going to court.”
This appears to confirm what the Minister has found.
In this case I am satisfied that the Minister in making his decision gave primary consideration to the protection of the Australian community and the expectations of that community. In the light of his decision to advance these considerations over those of the children, who he accepted would be disadvantaged, and the relationship of the applicant to his wife, it cannot be said that the remedying of the breach of natural justice which I have found would have produced another outcome. The impugned matters were given so little weight by the Minister that they cannot be said to have gone to the heart of his decision.
I do not consider that the argument of lack of verification of the circumstances of the assault upon Mrs El-Masri constitutes adverse material. The applicant proceeded on the basis that the assault that was being referred to was the assault that occasioned the apprehended violence order but in fact there was already a conviction for assault on the applicant’s record which the applicant had been given.

Neither am I satisfied that the possible impact of Mr El-Masri’s prior conduct on the children was a piece of adverse material that was not put to him. I accept Mr Smith’s submission that these were matters which Mr El-Masri well knew that the Minister might take into account. The reference in the notes of the interview with him to his acknowledgment that he had not been a good father and that he would now have to mend his ways found at [CB 52] seems to me to indicate that these matters were dealt with and that he was aware of them.
Another matter raised by the applicant was that whilst the Minister said he took into account the effect of his decision upon the applicant’s children he did not (a) consider those children individually or (b) consider the effect upon them if Mr El-Masri was removed from Australia but they did not join him in Lebanon. Dealing first with the second matter, this seems to have been considered by the Minister at paragraph 26. In regard to the first matter, it is not really possible to say from the reasons for the decision that the children were not dealt with individually. The words used are:
“I also gave consideration to the fact that Mr El-Masri’s children are all Australian citizens, the possible impact of Mr El-Masri’s prior conduct on the children, and any possible hardships that may be faced by the children if they were to live with Mr El-Masri in Lebanon. I found that the cancellation of Mr El-Masri’s visa and his removal from Australia may have a detrimental effect on his children. I gave this consideration significant weight.”
The Minister is obliged to give reasons for the decision pursuant to s.501G(1)(e): Ayan v Minister for Immigration [2003] FCAFC 7; Minister for Immigration v W157/00A [2002] FCAFC 28, however the Minister is not obliged to set out every matter he took into account when making his decision and the court should avoid reconsideration of the merits of a decision when reviewing the reasons for a decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259.

I know that the Minister did consider that the children would suffer a detriment and that he thought this was a significant factor to take into account. What I cannot see in the context of the Minister following non-mandatory procedures, is how he might have committed a jurisdictional error by not considering each child individually which, in any event, there is no evidence he did not.
The applicant also submitted that the Minister’s exercise of his discretion miscarried in the Wednesbury sense in that no reasonable decision-maker would have exercised his discretion in the manner exercised by the Minister. I am not at all satisfied that this is an argument that can be made. It is quite clear that the finding of Wednesbury unreasonableness will be “a very rare bird indeed.” I do not think that it can be found out of the weighting given by the Minister to the various different factors that he considered. It strikes me that what the applicant is seeking to do here is to utilise a claim of Wednesbury unreasonableness to argue the merits of the applicant’s case.
Dowsett J in Aksu v Minister for Immigration [2001] FCA 514 at [10] held that s.501 of the Act confers an unfettered discretion upon the Minister to refuse or to cancel a visa once the character test has been resolved against the person whose visa is in question (see also Ongel v Minister for Immigration [2003] FCA 525 at [64]).
I dismiss the application and order the applicant to pay the respondent’s costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: