Haynes v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1332

FEDERAL COURT OF AUSTRALIA

Haynes v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1332

MIGRATION – judicial review – natural justice – cancellation of visa – failure to pass character test – pre-decision invitation to put submissions – supporting submission from de facto partner – whether information as to relationship given to departmental officer – alleged failure to include such information in issues paper to Minister – whether failure to take information into account – whether misdirection as to address to send supporting submissions – on facts no breach of natural justice – no jurisdictional error – application dismissed

Migration Act 1958  (Cth)
Judiciary Act 1939 (Cth) s 39B

S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24 cited

STEPHAN WILBUR HAYNES v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W115 OF 2003

FRENCH J
19 NOVEMBER 2003
MELBOURNE (Heard in Perth)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W115 OF 2003

BETWEEN:	STEPHAN WILBUR HAYNES APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	19 NOVEMBER 2003
WHERE MADE:	MELBOURNE (Heard in Perth)

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant is to pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W115 OF 2003

BETWEEN:	STEPHAN WILBUR HAYNES APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	19 NOVEMBER 2003
PLACE:	MELBOURNE (Heard in Perth)

REASONS FOR JUDGMENT

Introduction

1. Stephan Haynes came to Australia from Trinidad and Tobago on a tourist visa in 1995 at the age of 15. He was granted permanent residence in 1996. He has lived in Australia since that time. In February 2002, he was sentenced to an effective total of three years imprisonment in respect of various offences including causing grievous bodily harm and unlawful wounding. On 19 December 2002, the Minister for Immigration and Multicultural and Indigenous Affairs cancelled his visa on the ground that he did not pass the character test. In May 2003, Mr Haynes filed an application for prerogative and injunctive relief under s 39B of the Judiciary Act 1903 (Cth). He contends that information that he and his de facto wife passed on to a departmental officer concerning the nature of their relationship was not put before the Minister and that a written submission invited from his partner was sent to an address, provided by the Department, which was not in fact the Department’s correct address. For the reasons which follow I am not satisfied that these factual contentions are made out. As a consequence I am not satisfied that there has been any want of procedural fairness or otherwise any jurisdictional error in connection with the making of the cancellation decision.

   Factual History

2. Stephan Wilbur Haynes is a citizen of Trinidad and Tobago.  He was born on 12 June 1980.  On 20 June 1995, at the age of 15, he entered Australia on a Tourist (Short Stay) Visa.  His father is an Australian citizen and on 6 June 1996 he was granted permanent residence and issued with a Sub-class 802 – Child Visa.

3. Since his arrival in Australia he has acquired a criminal record both as a juvenile and since he turned 18.  His criminal record is as follows:

Court	Date	Charge	No	Penalty
Perth C/Court	24/10/97	On premises w/out lawful excuse	1	$100 good behaviour Bond 3 mths
Perth C/Court	25/05/98	Offensive behaviour	1	No punishment
Perth C/Court	25/05/98	Violent behaviour	1	No punishment
18 years of age
Perth Court P/S	25/08/99	Damage	1	18 mths CBO (adult) 100 hrs comm. Work
Perth Court P/S	25/08/99	Threatening behaviour	1	18 mths CBO (adult) 100 hrs comm.. Work
Perth Court P/S	03/09/99	Possess prohibited drug	1	$150
Fremantle P/S	03/09/99	Poss. Smoking implement	1	$100
Perth P/S	03/09/01	Assault public officer	2	$400 each charge
Fremantle P/S	13/11/01	No motor drivers licence	1	Disq. holding/OBT MDL for 3 mths $200
Fremantle P/S	29/11/01	Possess weapon w/intent to cause injury	1	$200
Perth District Court	12/12/01	Breach of CBO	2	3 mths imp. conc for each charge
Perth District Court	12/12/01	Grievous bodily harm	1	3 yrs imp
Perth District Court	12/12/01	Unlawful wounding	4	2 yrs imp. conc each charge.
Perth District Court	05/02/02	Breach of CBO	2	3 mths imp. conc for each charge.

1. As appears from the preceding table  Mr Haynes was sentenced on 5 February 2002 in the District Court of Western Australia at Perth for a number of offences as follows:

   1.Three years imprisonment for the offence of doing grievous bodily harm backdated to commence on 22 July 2001 to allow for 211 days spent in custody.

   2.Two years imprisonment for each of four offences of unlawful wounding, each sentence to be concurrent with the other and with the term of three years imposed in respect of the offence of grievous bodily harm.

   3.Three months imprisonment for each of two offences of breach of a Community Based Order imposed in the Court of Petty Sessions on 25 August 1999 in respect of offences of damage and threatening behaviour.  Those terms of imprisonment were directed to be served concurrently with each other and with the terms imposed in respect of the grievous bodily harm and unlawful wounding offences.  The sentencing judge ordered that Mr Haynes be eligible for parole.  The overall effect of the sentences was that Mr Haynes had a sentence of three years imprisonment commencing on 22 July 2001.

2. On or about 21 March 2002, Mr Haynes received a notice sent by registered mail to Hakea Prison at Canning Vale. The notice was from an officer in the Cancellations Section of the Department of Immigration and Multicultural and Indigenous Affairs and was entitled ‘NOTICE OF INTENTION TO CONSIDER CANCELLING A VISA UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958’. The notice informed him that his visa might be liable to cancellation by the Minister for Immigration and Multicultural and Indigenous Affairs under s 501 of the Migration Act 1958 (Cth). A copy of the full text of s 501 was attached. The notice then said:

   ‘Before the Minister considers whether to cancel your visa under subsection 501(2), you are provided with an opportunity to comment.  Matters to be taken into account include the following:

   .          Your substantial criminal record
    and/or
   .          Your past and present criminal conduct
   .          Your past and present general conduct.’

   The notice also informed him that the address to which he should convey his written response to the notice was:

   ‘Cancellations Section
   Department of Immigration and Multicultural Affairs
   Locked Bag No 7
   Northbridge WA 6865
   OR
   Facsimile: 08 9228 0476’

   He was informed that any written comments and information should be sent to that office no later than close of business on 4 April 2002.  The notice also stated:

   ‘If you do not respond by 4 April 2002, a decision on whether to cancel your visa will be made using information already held by the Department.’

3. Mr Haynes sent a handwritten letter to the Department which was received on 5 April 2002.  He requested that his visa not be cancelled.  He said he was not a threat to society and should not be considered as a re-offender.  He said he did not plan on living a life of crime or doing any more stupid acts. He asked that the Minister take into account the fact that he had a father living in Western Australia and three brothers and his stepmother.  He said he did not know what he would do without them.  He said that when he first came to Australia he had gone to school and worked for a long time.  It was a wonderful place to start a good and healthy family and life and career.  He said that what he did was accidental and that he was sorry for causing any damage to anyone or the system.  He wanted to be given another chance in society to prove that he was a good person and that what happened was ‘just a big accident and will never happen again’. He then went on:

   ‘Also my partner at the moment is pregnant and is due to have the baby in July of this year.  So I ask you to give me that chance to start a new start please with my family and society.’

4. Subsequently a document was prepared entitled ‘ISSUES FOR CONSIDERATION OF POSSIBLE CANCELLATION OF Mr Stephan Wilbur HAYNES VISA UNDER S501(2) OF THE MIGRATION ACT 1958’. The document was prepared by Mr Don Stephens of the Visa Cancellation Unit on or about 10 December 2002. The document referred to the ground of cancellation of a visa set out in s 501(2) of the Migration Act. That section 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 and the person does not satisfy the Minister that he or she in fact passes the character test. Section 501(6)(a) provides that a person does not pass the character test if he or she has a substantial criminal record within the meaning of s 501(7). A person is deemed to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of twelve months or more (s 501(7)(c)). Based on the fact that Mr Haynes was sentenced by the Perth District Court on 5 February 2002 to three years imprisonment in respect of the offence of grievous bodily harm and two years imprisonment for each of four counts of unlawful wounding, it was said to be open for the Minister to find that Mr Haynes had a substantial criminal record and did not pass the character test.

5. Mr Haynes said nothing to negate the existence of his criminal record and the relevant sentences.  There was therefore no possibility that he could satisfy the Minister that he passed the character test. 

6. The issues paper then moved to discretionary considerations. It referred the Minister to Directions which he had issued under s 499 of the Migration Act to guide delegates and the Administrative Appeals Tribunal in the exercise of the discretion under s 501. It was pointed out that, in making a decision on the case, it was open to him to be guided by the factors set out in the Direction but that he was free to place whatever weight he regarded as appropriate on those factors.

7. The paper referred to the notice sent to Mr Haynes on 21 March 2002 and his written response which had been received on 5 April 2002.  A copy of the response was attached to the issues document. 

8. The document turned to factors under the heading ‘Primary Considerations’.  These were first the ‘Protection of the Australian Community’ which was considered by reference to the seriousness of the conduct, the likelihood that the conduct might be repeated (including any risk of recidivism) and general deterrence.  There was then reference to ‘The Expectations of the Australian Community’ and ‘The Best Interests of the Children’ and ‘Other Considerations’.  Under the heading ‘The Best Interests of the Children’ it was said at [32] of the document:

   ‘The Convention on the Rights of the Child is not relevant in this case as Mr HAYNES has no children.  Mr HAYNES verbally confirmed that his partner who he claimed in his submission of 05 April 2002 was pregnant has had a miscarriage.’

9. Under the heading ‘Other Considerations’ it was noted that there was no evidence presented that Mr Haynes had any business or other ties in the community.  Reference, however, was made to his comments about his family and in particular his father, his brothers and his stepmother.  At [35] the document continued:

   ‘ There is no evidence on file that indicates that Mr HAYNES is in a genuine marriage to, or de facto or interdependent relationship with an Australian citizen, permanent resident or eligible New Zealand citizen.  In Mr HAYNES’ submission his total reference to his partner is:

   “… Also my partner at the moment is pregnant and is due to have the baby in July of this year.”

   Subsequent discussions with Mr HAYNES and his partner indicated that the relationship could not [be] considered to be a de facto relationship.  The couple live independent of each other with Mr HAYNES living with his father and his girlfriend living with her mother.’

10. The document then went on to observe that there should be no impediment for Mr Haynes’ partner, father, stepmother and three brothers visiting him in Trinidad and Tobago should they so desire.  His mother lives in the United States and his grandparents in Trinidad and Tobago.  Reference was made to a report from the Department of Justice about his behaviour on parole.  It was said there ‘HAYNES is complying with the conditions of his parole order.  His home circumstances appear to be stable and he has ongoing employment.’  A submission from his stepmother, Ms Carolyn Mascall, was quoted:

    ‘… Although I cannot officially speak for Stephan I would like to say that I do feel that following Stephans (sic) recent release from prison he appears to be doing all that is possible to change his life style.  He is working and has been working since his release from prison.  I feel he now understands the ramifications that his behaviour has had not only on himself, the family but also on those he committed crimes against and the community and that the severity of those crimes has led to the process at hand being implemented.’

    ‘I would like if possible to be able to support Stephans (sic) application to retain his residency in Australia and that he be given another chance to become a respectable, hard working community member.’

    A copy of Ms Mascall’s submission was attached.

11. The document offered the Minister decisional options.  The decisional option he chose was expressed, in standard form, as follows:

    ‘PART E: DECISION

    I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and Mr HAYNES’ comments, and have decided that:
    …

    (d)I reasonably suspect that Mr HAYNES does not pass the character test and Mr HAYNES has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa

    Philip Ruddock

    Minister for Immigration and Multicultural and Indigenous Affairs

    Date: 19.12.02’

12. On 27 May 2003, Mr Haynes filed an application for prerogative and injunctive relief pursuant to s 39B of the Judiciary Act 1903 (Cth). While the application was outside the time limit specified in s 477 of the Act, it was evidently accepted by the Minister that if his decision were affected by jurisdictional error as claimed in the application, then the time limit set out in s 477 would have no application – Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.

13. Mr Haynes sought interlocutory release pending the hearing and determination of his application but the claim for interlocutory release was refused by RD Nicholson J on 24 July 2003.  The application came on for hearing on 31 October 2003.

    Grounds of Application

14. The grounds of the application are as follows:

    ‘3)The decision to cancel the Applicant’s Subclass 802 Child Visa made was made without jurisdiction and was not authorised by the Migration Act and is accordingly void and of no effect.

    PARTICULARS

    a)The Applicant was born in Trinidad and Tobago on 12 June 1980.  The Applicant’s father married an Australian citizen and the Applicant’s father came to live as a resident in Australia in 1985.  The Applicant’s father became a citizen of Australia in 1989.  The Applicant’s mother married and the Applicant subsequently was taken to live with his mother and stepfather in the United States of America in 1991.  The Applicant was physically abused by both his mother and his stepfather and was sexually abused by his stepfather.  The Applicant came to Australia on 20 June 1995 and his father and stepmother sponsored the Applicant to apply for a child visa to become a resident of Australia.

    b)The Applicant has been in a long term relationship for with Cassandra Louise Boskovich for approximately the last 3 years and has lived with her in stable de facto relationship for approximately the last 2 years, except for a period of imprisonment of approximately 7 months in 2001/2002 and whilst in detention from January 2003 to date.

    c)The Applicant claimed in his letter received by the Respondent’s department on 8 April 2002 (sic) that he was in a relationship and that his partner (Ms Boskovich) was pregnant and due to give birth in July 2002.  Ms Boskovich subsequently suffered a miscarriage of that pregnancy.

    d)The Applicant and Ms Boskovich subsequently confirmed by telephone to the Minister’s officer Don Stevens (sic) in or about the end of November or early December 2002 that they were in a stable de facto relationship and intended to marry.

    e)Cassandra Boskovich sent details of her relationship with the Applicant and her assessment of his character to the Minister by letter addressed to the Minister’s officer Don Stevens (sic) PO Box 7 Northbridge WA 6865 as instructed by Mr Stevens (sic) on or about 27 November 2002.

    f)Such letter was not received by the Respondent but was returned unopened to Ms Boskovich in an envelope marked “Private Box Cancelled” in or about April 2003.

    g)Ms Boskovich sent further details concerning the Applicant’s employment in a separate letter also addressed to Don Stevens (sic) PO Box 7 Northbridge WA 6865 on or about 28 November 2002.  Such letter was also not received by the Respondent.

    h)The Respondent’s decision was made on the basis that the Applicant was not in a de facto relationship with Cassandra Boskovich or with anyone else.

    i)The Respondent failed to have regard to a relevant consideration, namely that the Applicant was in a stable continuing relationship with Cassandra Boskovich who was a natural born Australian citizen and that her interests would be significantly adversely affected if the Applicant was removed from Australia and returned to Trinidad and Tobago.

    j)The Respondent failed to accord the Applicant natural justice in that the Respondent relied on adverse information provided by an officer of his Department that the Applicant was not living in a de facto relationship, that Ms Boskovich lived with her mother and the Applicant with his father without the Applicant being provided with the opportunity to provide material to refute that adverse information and without the Respondent’s officer informing the Respondent of the information that he had received both from the Applicant and from Ms Boskovich that they were in fact living together in a de facto relationship.’

    The Evidence

15. The Court received the following affidavit evidence:

    1.Affidavit of Teresa Ling sworn 10 July 2003.  Ms Ling is a solicitor employed by the Australian Government Solicitor.  Her affidavit exhibited various documents including the notice of intention to cancel Mr Haynes’ visa and the issues document prepared by Mr Stephens.

    2.Affidavits of Stephan Wilbur Haynes sworn 30 June 2003 (less pars 25 to 27) and 9 October 2003.

    3.Affidavit of Cassandra Louise Boskovich sworn 30 June 2003 (less par 9) and 28 October 2003.  Ms Boskovich is the person to whom Mr Haynes referred in his written submission to the Minister as his ‘partner’. 

    4.Affidavit of Carolyn Mascall affirmed September 2003 but otherwise undated – Ms Mascall is Mr Haynes’ stepmother.

    5.Affidavit of Wilbur Stephenson Francis-Mascall sworn 11 September 2003.  Mr Francis-Mascall is Mr Haynes’ father.

    6.Affidavit of Tessa Josephine Boskovich sworn 17 July 2003 – Ms Boskovich is the mother of Cassandra Boskovich.

    7.Affidavit of Donald Geoffrey Stephens sworn 17 July 2003.  Mr Stephens is the officer of the Department who prepared the issues document and who spoke to Ms Boskovich before doing so.

1. Oral evidence was taken at the hearing by way of cross-examination of the applicant, Stephan Haynes, Ms Boskovich and Mr Stephens. 

2. In his first affidavit Mr Haynes said that after sending his written submission to the Department in April 2002 and his subsequent release from prison he heard nothing further and assumed that his plea to remain in Australia had been accepted.  However late in November 2002, several months after his release, he was telephoned by Mr Stephens who inquired about his current personal circumstances.  He said that he told Mr Stephens that Cassandra had suffered a miscarriage and that he therefore did not have a child.  He also told him that his relationship with Cassandra was continuing and that they intended to marry.  He said that on 8 January 2003 he was arrested by officers of the Department who came to the Boskovich house in Sellenger Avenue in Samson where he was living with Cassandra.  He said that he and Cassandra occupied a self-contained unit which was an extension of the house.  Her mother owned the house.  At the time he was taken into detention he was given a copy of the issues document and noted that it claimed that he and Cassandra were not in a de facto relationship and that he was living with his father.  He said this was incorrect and contrary to oral information that both he and Cassandra had given to the Department.

3. Mr Haynes said in his affidavit that he had been in a long-term relationship with Cassandra for the previous three years.  They had known each other longer than that as they had common school friends.  They had lived together in a stable de facto relationship for approximately the previous two years except for his period of imprisonment which was approximately seven months from December 2001 to July 2002 and since 8 January 2003 when he was taken into immigration detention.

4. In his second affidavit sworn 9 October, Mr Haynes corrected the statement in his first affidavit that he had been in a long term relationship with Cassandra for the previous three years and in a stable de facto relationship for the past two years save for his period of imprisonment and immigration detention.  He said:

   ‘Cassie and I started to go out together as boyfriend and girlfriend in about mid 2000, the relationship has continued to develop and we have become closer together and have become committed to a life together over a period since that time.  By the second half of 2001 I was usually sleeping over with Cassie several nights a week in her part of the house at 33 Sellenger Avenue, however I was not living permanently with her at that address and in that respect we were not yet in a de-facto relationship.  I had a flat of my own where I kept my belongings and I also stayed with my parents on occasions in a room that they kept for me there.’

   He said that when he was convicted and sentenced Cassandra continued to visit and see him whenever allowed under prison regulations.  He said they agreed they would live together as soon as he was released and her mother gave her approval to their arrangement.  He said that although she had lost their baby while he was in prison that did not alter their commitment to each other or their plans to live together.  He said that following his release from prison in July 2002 he had moved with his belongings to the Sellenger Avenue address and had subsequently lived there on a permanent de facto basis with Cassandra except for relatively short periods that he was away working on fishing trawlers out of Carnarvon and until he was taken into detention on 8 January 2003. In cross-examination Mr Haynes confirmed that he and Ms Boskovich were not living together permanently or as husband and wife until after his release from prison in July 2002. 

5. Mr Haynes was also cross-examined about a Newstart Job Allowance application he had made after his release from prison in 2002.  Following an interview in connection with the application he signed a Customer Declaration form in which his marital status was described as ‘Single’.  The declaration gave his address as that of Ms Boskovich’s home in Samson.  In the form there was also a section setting out various changes in circumstances which recipients of an allowance were required to report to Centrelink.  The changes in circumstances included:

   ‘marry or reconcile with a separated partner or start living with someone as their partner.’

   Cross examined on this, he said he did not recall being told that if he had a wife or was in a de facto relationship with a partner it was relevant to his Newstart allowance.  He said he could not recall if he had told the person he dealt with at Centrelink that he was in a de facto relationship.  He was not sure if the person at Centrelink explained to him that he should tell Centrelink if he were in a de facto relationship.  He could not recall even telling Centrelink that he was living with Ms Boskovich as her partner.  He denied not telling Centrelink that he was in a de facto relationship with Ms Boskovich in the period from July to November 2002.  He said he used the word ‘single’ to describe his marital status because he was not married.  I find Mr Haynes unconvincing on this aspect of his evidence.  In my opinion he was aware at the relevant time that he had commenced to live in a de facto relationship with Ms Boskovich and he failed to so advise Centrelink.  He did not advise Centrelink at any later date of the relationship. 

6. Mr Haynes was also cross-examined about a telephone call from Mr Stephens in mid to late November 2002.  He reiterated that in the course of that call he told Mr Stephens that he was living with his de facto, Cassandra.  He said he then gave Mr Stephens Ms Boskovich’s telephone number.  In his oral account of the circumstance however he did not mention that, as stated in his affidavit of 30 June, he had told Mr Stephens that he and Ms Boskovich intended to marry.  In my opinion, and consistently with the representation he had made in connection with the Newstart allowance application, Mr Haynes probably did not tell Mr Stephens that he was then living in a de facto relationship with Ms Boskovich.  I am reinforced in that view by Mr Stephens’ evidence of that conversation in which he said Mr Haynes told him that he and his girlfriend were living apart.  Mr Stephens denied in cross-examination that Mr Haynes told him that he was living in a de facto relationship with Ms Boskovich.  Although it was put to him in cross-examination that it was unlikely that he would have thought it necessary to contact Mr Boskovich if she was not living with the applicant, he said:

   ‘Apart from the statement from Mr Haynes there was no other supporting evidence at that time on the file from family or the relatives and Mr Hayne’s case, I thought, needed additional assistance.’

7. In her affidavit, Ms Boskovich confirmed the truth of the contents of Mr Haynes affidavit.  She referred to the letter that she had sent to Mr Don Stephens which had been returned to her unopened.  In that letter, which was written in November 2002, she had said that she was then in a de facto relationship with Mr Haynes and had been for approximately three years.  She wrote:

   ‘In that time we have been involved seriously and plan to continue this relationship in the future.  We are living in the same dwelling and are dependent on each other in many ways, our relationship is of mutual affection and partnership and we plan to continue living together.’

   She accepted in cross-examination that she had exaggerated by about two and a half years the length of the time that she had been in a de facto relationship with Mr Haynes.

8. Ms Boskovich said in her affidavit of 30 June 2003 that she had spoken by telephone to Mr Stephens in late November 2002.  He had told her that he was a DIMIA officer and that he was preparing submissions for the Minister to consider the cancellation of Mr Haynes’ visa and that he wanted to clarify the relationship between Mr Haynes and herself.  She said she confirmed to him that they were living together in a de facto relationship and that they planned to marry.  As they discussed this he suggested that she could make further submissions in support of Stephan.  She was told that she should send any further submissions to PO Box 7 Northbridge WA 6856.  She said she wrote down the address given to her by Mr Stephens and some other notes relating to the conversation on a scrap of paper that was beside the telephone.  The notes were exhibited to her affidavit.  Her notes in respect of his telephone conversation with her read as follows:

   ‘Crimes of violence
   Case officer
   Don Stevens (sic)
   9415 9153
   His character
   Philip Ruddock
   PO Box 7
   Northbridge WA 6865’

   She said she posted her letter to Mr Stephens on 27 November 2002. 

9. Ms Boskovich is currently a student at Curtin University enrolled in the course for Bachelor of Social Work. 

10. In her more recent affidavit sworn on 28 October 2003, Ms Boskovich confirmed that what Mr Haynes had said in his affidavit of 9 October 2003 was correct and that she and he were not living together on a permanent basis before he went to prison in December 2001.  She described their relationship as ‘very close’ and said they had discussed marriage.  She said they were sleeping together and he stayed over with her frequently.

11. Ms Boskovich was in receipt of a Youth Allowance from Centrelink.  She accepted that she knew the Youth Allowance was dependent on various factors including whether she was single or in a de facto relationship.  She had not told Centrelink about the commencement of her de facto relationship with Mr Haynes following his release in July 2002.

12. She remembered receiving a message to call Mr Stephens and that she phoned him.  He told her to write a letter to the Department.  She denied that she had written down the address he gave her incorrectly. 

13. Mr Stephens in his affidavit said that he recalled contacting Mr Haynes by telephone on a date in mid to late November 2002.  He recalled speaking with him a short time before he spoke to Ms Boskovich on 26 November 2002.  He said he had telephoned Mr Haynes because of his submission to DIMIA that his partner was pregnant.  He was told by Mr Haynes during the conversation that Mr Haynes’ girlfriend had had a miscarriage.  Asking Mr Haynes about his relationship with his girlfriend he had been informed that they were living apart, with him living with his father and Ms Boskovich with her mother. 

14. Mr Stephens recalled contacting Ms Boskovich.  On his first call she was unavailable and he left a message for her to return his call.  She contacted him several days later and when he questioned her about the nature of the relationship with Mr Haynes she told him that she and Mr Haynes were not in a de facto relationship nor were they living together.  She said she was living at home with her mother but had known Mr Haynes for four years and had been his girlfriend for three.  According to Mr Stephens she said she would still put together a statement of support for Mr Haynes explaining the extent of her relationship with him and would do so by 5 December 2002.  Mr Stephens cannot independently recall whether he gave Ms Boskovich the postal address of the Department.  It is very likely, he said, that he did.  It is also very likely that he asked her to address the letter to his attention. 

15. Mr Stephens was cross-examined on this aspect of his affidavit as well as others.  In my opinion however he was not shaken in cross-examination.  The address which he gave to Ms Boskovich had been, to his knowledge, the DIMIA address for five years prior to the time of their conversation.  The difference in a sense narrows down to the difference between what Mr Stephens said he told Ms Boskovich, namely that it was Locked Bag No 7, and what she says he told her, which was PO Box 7, Northbridge.

16. The question of the address that Ms Boskovich was given by Mr Stephens is critical to the case.  If she was given the wrong address then she was misdirected by the Department and denied the opportunity of putting submissions which might have assisted Mr Haynes.  That misdirection would arguably have constituted a breach of procedural fairness in relation to Mr Haynes, albeit it concerned a submission in his favour which his partner wished to put to the Department.

17. I am not satisfied that Mr Stephens misdirected Ms Boskovich causing her to send her written submission in support of Mr Haynes to the wrong address. He knew the address.  He had known it for five years.  Ms Boskovich presented as a person under considerable stress in relation to these proceedings and I have no doubt she was under stress at the time of her conversation with Mr Stephens. In my opinion she probably misheard him.

18. As to Ms Boskovich’s claim in her affidavit that she told Mr Stephens that she and Mr Haynes were living in a de facto relationship, this is inconsistent with the note that Mr Stephens made of that conversation.  That note read:

    ‘Cassandra Boskovich, Mr Haynes girlfriend rang 26/11/2002.
    She noted that her and Mr Haynes weren’t living together – she was still living at home with Mum.
    She has known Mr Haynes for four years and has been his girlfriend for approx 3 years.
    She is not in a de facto relationship with Mr Haynes but will put together a submission explaining the extent of their relationship.
    Ms Boskovich agreed to submit her statement by 5/12/2002.’

19. These factual matters are critical to the application which depends upon Mr Haynes’ claim that he and Ms Boskovich told Mr Stephens that they were in a stable de facto relationship and intended to marry.  I do not doubt, and it is not really disputed, that they were at the relevant time living in a de facto relationship.  However Mr Haynes had compromised himself with Centrelink by claiming to be single and making no reference to his relationship with Ms Boskovich.  I also prefer Mr Stephens’ record of the conversation with Ms Boskovich in this respect.  There was no reason for him to falsify that aspect of the conversation.  There was some reason, however, for Ms Boskovich not to be forthcoming about the nature of her relationship with Mr Haynes having regard to his and her interactions with Centrelink.  It may be that this position was reconsidered when she drafted the letter to send to Mr Stephens.

20. Having regard to those factual findings there can be no basis for the contention that there was a failure to accord Mr Haynes natural justice in the decision to cancel his visa.  Nor could it be said that the Minister failed to have regard to a relevant consideration that Mr Haynes was in a stable continuing relationship with Ms Boskovich when no such consideration had been communicated to the departmental officer by Mr Haynes or Ms Boskovich.  There is no basis therefore for concluding that there has been a jurisdictional error on the part of the Minister and the application will be dismissed with costs.  

I certify that the preceding thirty eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:
Dated:            19 November 2003

Counsel for the Applicant:	Mr HNH Christie
Solicitor for the Applicant:	Christie Strbac
Counsel for the Respondent:	Mr MT Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 October 2003
Date of Judgment:	19 November 2003