Herrera v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 428
•14 APRIL 2004
FEDERAL COURT OF AUSTRALIA
Herrera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 428
MIGRATION – decision by respondent to cancel applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) – applicant failed character test by having a substantial criminal record – whether Minister’s failure to provide reasons constitutes jurisdictional error – whether the applicant was afforded a meaningful opportunity to deal with adverse material such as sentencing comments and parole reports
Migration Act 1958 (Cth) ss 474, 477, 499, 501, 501G
Acts Interpretation Act 1901 (Cth) s 25D
Judiciary Act 1903 (Cth) s 39BPlaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 applied.
Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 applied.
Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 332 cited.
Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298 cited.
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 applied.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited.
National Companies and Securities Commission v News Corporation (1984) 156 CLR 296 cited.
Kioa v West (1985) 159 CLR 550 cited.
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 cited.
Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 139 cited.
Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited.
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 cited.
Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 cited.
Stead v State Government Insurance Commission (1989) 161 CLR 141 cited.Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 cited.
HERRERA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 2555 of 2003SACKVILLE J
SYDNEY
14 APRIL 2004
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 2555 OF 2003
BETWEEN:
RODRIGO ANTONIO HERRERA
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
SACKVILLE J
DATE OF ORDER:
14 APRIL 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 2555 OF 2003
BETWEEN:
RODRIGO ANTONIO HERRERA
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
SACKVILLE J
DATE:
14 APRIL 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE PROCEEDINGS
This is an application under s 39B of the Judiciary Act 1903 (Cth) for prerogative relief in respect of a decision made by the then Minister for Immigration and Multicultural and Indigenous Affairs (‘Minister’) on 17 January 2003. The Minister decided on that date to cancel the applicant’s Permanent Resident visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (‘Migration Act’). Since the decision was made by the Minister personally, the applicant was unable to seek merits review in the Administrative Appeals Tribunal: see s 500(1).
The applicant is a citizen of Chile, who migrated with his family to this country in 1986, when he was six years old. On his own account, he became addicted to heroin at the age of 17 and later became a heavy user of benzodiazepines, including Serepax, Rohypnol and Valium. The applicant has a very extensive criminal record spanning the period from 1997 to 2001. On the material before the Minister, the applicant’s most recent conviction was on 11 December 2001, when he pleaded guilty in the Local Court at Central to breaking, entering and stealing from a pharmacy and to a number of other offences, including larceny and uttering forged prescriptions. He was sentenced to a term of twelve months imprisonment in respect of the principal offence, with a minimum term of nine months to be served. The sentence was to commence from 9 October 2001, the date the applicant was taken into custody. The Magistrate specified that the applicant’s release on parole was to be conditional upon his accepting treatment for addiction to benzodiazepines.
The applicant’s convictions, other than the principal offence for which he was convicted on 11 December 2001, were summarised in the Issues Paper prepared for the Minister as follows:
‘His convictions include Breach ADVO [apprehended domestic violence order], Common Assault, Malicious Damage (X 2), Larceny (X 8), Receiving (indictable), Receive Stolen Property, Carry Cutting Weapon Upon Apprehension, Goods in Personal Custody Reasonably Suspected Being Stolen, Enter Enclosed Lands of Any Person Without Lawful Excuse, Possess Housebreaking Implements, Maliciously Destroy or Damage Property (X 2), Break and Enter Building Commit Felony, Assault Occasioning Actual Bodily Harm (X 3), Goods in Personal Custody Reasonably Suspected Being Stolen (X 3), Unlawfully Possess etc a Prescribed Restricted Substance (X 2), Common Assault (X 2), Breach of Recognizance, Obtain Money etc By Deception, Receive Stolen Property, Possess Prohibited Drug (X 5), Contravene Apprehended Domestic Violence Order (X 2), Use Offence Language In/Near Public Place/School (X 2), Contravene Apprehended Domestic Violence Order (X 2), Resist Officer in Execution of Duty (X 2), Possession of Equipment for Administering Prohibited Drugs, Break and Enter W/I, Forge/Alter Prescription for Prescribed Restricted Substance (X 3), and Utter Forged/Altered Prescription (X 2).
He has received 12 months to two years recognizance orders, probation with and without condition, supervision by juvenile justice, control order without condition, two years supervision from New South Wales Probation Services with obey all directions concerning drug rehabilitation, warrants to issue, fines ranging from $25 to $1000, pay court costs, six months periodic detention, suspended sentence and terms of imprisonment ranging from one month to three months.’
There is no dispute that this summary was accurate.
The applicant was released on parole on 8 July 2002 after serving the minimum period of imprisonment imposed by the Local Court. He was then apparently charged with a new offence and on 14 August 2002 readmitted to a correctional centre. On 28 October 2002, the applicant was granted bail, but this seems later to have been revoked. I was told from the bar table that he was convicted of a further offence in December 2003 and was returned to prison in consequence. At the expiration of that sentence he was placed in immigration detention. The fact that the applicant had been convicted in December 2003 was not referred to in the Issues Paper and there is nothing to indicate that the conviction was taken into account by the Minister.
The present proceedings were commenced on 30 December 2003, some eleven months after the applicant was notified of the decision. The respondent has filed a notice of objection to competency on the grounds that the Minister’s decision was a ‘privative clause decision’ as defined in s 474(2) of the Migration Act and that pursuant to s 477(1) any application for prerogative relief in this Court must be made within 28 days of the applicant being notified of the decision.
THE LEGISLATIVE FRAMEWORK
Section 501(2) of the Migration Act empowers the Minister to cancel a visa if he reasonably suspects that the visa holder does not pass the ‘character test’ and the visa holder does not satisfy the Minister that he or she passes the ‘character test’. Section 501(6) provides, among other things, that a person does not pass the character test if he or she has a ‘substantial criminal record’, as defined by s 501(7). A person has 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). There is no dispute that the applicant had a substantial criminal record within the meaning of s 501(7)(c) and that it was therefore open to the Minister reasonably to suspect that the applicant did not pass the character test.
Section 501G(1) provides that if a decision is made under s 501(2) to cancel a visa:
‘…the Minister must give the person a written notice that:
(c)sets out the decision; and
(d)specifies the provision under which the decision was made and sets out the effect of that provision; and
(e)sets out the reasons…for the decision.’
This provision needs to be read with s 25D of the Acts Interpretation Act 1901 (Cth), which provides that where an Act requires a decision-maker to give written reasons for the decision, the instrument giving the reasons must also set out the findings on material questions of fact and refer to the evidence or other material upon which those findings were based.
Section 501G(4) provides that a failure to comply with s 501G in relation to a decision does not affect the validity of the decision.
Section 474(1) of the Migration Act provides as follows:
‘A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.’
A ‘privative clause decision’ is defined by s 474(2) to mean:
‘a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)…’
Section 477 imposes time limits on applications for judicial review in this Court. Section 477 relevantly provides as follows:
‘(1)An application to the Federal Court under section 39B of the Judiciary Act 1903 for:
(a)a writ of mandamus, prohibition or certiorari; or
(b)an injunction or a declaration;
in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by section 476 must be made to the Federal Court within 28 days of the notification of the decision.
…
(2)The Federal Court or the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1) or (1A) outside the period specified in that subsection.’
THE ISSUES
The applicant concedes that his application to this Court is well outside the period of twenty-eight days prescribed by s 477(1) of the Migration Act. He submits, however, that the delay is adequately explained by reason of his low level of education, his lack of understanding of the avenues of review open to him and the fact that he was in detention. Moreover, he says that he made attempts to obtain pro bono assistance and indeed received some advice in June 2003. It was not until December 2003, however, that he became aware that he could receive legal assistance to challenge the Minister’s decision.
While an explanation for the delay in commencing proceedings might be significant in relation to any discretion that may have to be exercised, it is not relevant to the operation of s 477(1) and (2) of the Migration Act. The decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, establishes that a decision which is affected by jurisdictional error is not a ‘privative clause decision’ for the purposes of s 474(2) of the Migration Act. Thus the time limit imposed by s 477(1), which applies only to application for relief in respect of a ‘privative clause decision’, does not preclude the applicant from seeking prerogative relief in this Court if the Minister’s decision was affected by jurisdictional error. The critical issue in these proceedings, therefore, is whether the Minister’s decision was vitiated by jurisdictional error.
The applicant submits that the decision was affected by jurisdictional error, for two reasons:
- First, the Minister failed to provide reasons for his decision, as required by s 501G(1)(e) of the Migration Act.
- Secondly, the Minister did not afford the applicant a ‘meaningful opportunity’ to deal with adverse material, thereby denying him procedural fairness. In particular, the Minister did not give the applicant an adequate opportunity to comment on or explain:
(i)the observations made by the learned Magistrate when imposing sentence on the applicant on 11 December 2001;
(ii)the context in which he had been charged with assault and breaches of apprehended domestic violence orders (‘ADVOs’); and
(iii)a parole report provided to the Department of Immigration and Multicultural and Indigenous Affairs by the Probation and Parole Services.
THE FACTUAL BACKGROUND
On 17 July 2002, the Department sent a ‘Notice of Intention to Consider Cancelling a Visa under Subsection 501(2) of the Migration Act 1958’ (‘Notice’). The Notice included the following:
‘It has come to the attention of the Department that this visa may be liable for cancellation under section 501 of the Migration Act 1958 (the Act). The relevant ground is:
· Subparagraph 501(6)(a) – Substantial criminal record
· Subparagraph 501(6)(c)(i) – Past and Present criminal conduct
I have attached the full text of section 501 for your information.
The Minister has advised that he will be personally making the decision whether to cancel your visa under subsection 501(2). This will mean that should the decision be to cancel your visa, you will not be entitled to have this decision reviewed by the Administrative Appeals Tribunal (AAT).
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 criminal record. A copy is attached for your information.
· The Judge’s comments
In reaching a decision whether to cancel the visa the Minister will have regard to the matters noted above and the attached Minister’s Direction No 21 titled “Direction under Section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958”. I have included a copy of this direction.’ (Emphasis in original.)
The Notice invited a response by 16 August 2002. The applicant acknowledged in writing on 22 July 2002 that he had received the Notice and its attachments. The attachments included a standard questionnaire which the applicant could use to make submissions to the Minister.
It will be noted that the Notice refers to ‘the Judge’s comments’. In fact the applicant, despite his lengthy criminal record, had never been sentenced by any court other than a Local Court or a Children’s Court. In particular, it was a Magistrate, not a Judge, who imposed the sentence of 12 months imprisonment on the applicant on 11 December 2001.
The applicant completed the standard questionnaire enclosed with the Department’s Notice. In response to the question ‘Do you agree you have a “substantial criminal history” as [sic] pursuant to s 501(7) of the Migration Act 1958?’, the applicant wrote this (as recorded in the Issues Paper):
‘I do agree that I have a very bad criminal history. The reason for my record being so bad is because of my drug problem. I know that there is no excuse for me to have such a bad record. I started to do something about my heroin addiction in 1999 by joining a methadone programme. I did stop using heroin after that but seen (sic) that my parents still could not get along even as friends I was always in the middle and started to take benzodiazepines (sleeping pills and anti deppressants (sic)) and I lost controll (sic) done (sic) very stupid things and I would not remember the next day unless someone reminded me. Now I am 22 yrs old and been (sic) in this situation knowing that you people want to kick me out of Australia where I have my family the (the following line is unreadable) has opened up my eyes and made me think about what I have been doing with my life, what I have done to my parents what I have put them through all these years and what it would do to them if I was to be removed from Australia. I guess what I’m trying to say is that yes I have had a bad long criminal history but I assure you that if I was given one last chance to stay in the country and straigten (sic) myself out I know deep inside that I have had enough of living my life the way I have been living it and am changing that as of now, because as I have said to my dad this matter has really hit me hard and opend (sic) my eyes.’
In response to the question ‘What is your current offence and the circumstances?’, the applicant seems to have been equivocal about his culpability, notwithstanding having pleaded guilty to the charge:
‘The offence is Break and Enter and it is in a chemist in Kings Kross (sic). I alway (sic) used to hang around Kings Kross (sic) and I took a script for some Valium tablets into this chemist, while the man sorted out the script I sat out the front to have a smoke and I must have leand (sic) against the window and left my hand print on the glass, then when the shop was broken into that front window was smashed and the cops got my prints so the blame comes back to me and again it’s because of my record. Believe me or not that’s the truth. What else can I say.’
When asked about his other offences, the applicant replied as follows:
‘Most of my offences are stealing and getting money by disshonest (sic) ways and the reasons are that I was sick withdrawing from heroin and needed money to by (sic) heroin. Also one time I took Serepax and beer together and being an idiot not knowing what I was doing I broke into a doctors (sic) surgery and got 12 months jail.’
When asked to give his reasons as to why his visa should not be cancelled, the applicant said this:
‘If my visa is cancelled and I am depported (sic) I would not know what to do, I would get to Chile and I would have nowhere to go no one to go to. For help, what would I do to find somewhere to live or get money, I can hardly speak fluent Spanish so I would not be able to get a job straight away and my dad would surley (sic) have a heart attack or stroke to be honest in the nicest way possible I would be in the middle of nowhere with nowhere to go.’
On 6 September 2002, the Department sent to the applicant (who by then had been returned to a correctional centre) a copy of his parole report dated 26 August 2002 and invited his comments on the contents of the report. The report stated that the applicant had been under supervision for six weeks before being returned to custody. During this period he failed to report on three occasions, failed to collect his methadone dose four times and tested positively for illegal substances on five occasions. The applicant made no response to this letter, although he was in possession of it at the time he returned the completed questionnaire on 20 September 2002.
A document entitled ‘Issues for consideration of Possible cancellation of Permanent Resident Visa under s 501(2) of the Migration Act 1958’ (‘Issues Paper’) was prepared by the Department for the consideration of the Minister. The Issues Paper set out the history of the matter and concluded that it was open to the Minister to conclude that the applicant had a substantial criminal record for the purposes of s 501(7)(c) of the Migration Act.
Under the heading of ‘Discretion’, the Issues Paper considered the seriousness of the applicant’s criminal conduct and concluded that it was open to the Minister to find that the applicant’s ‘conduct against the community [was] serious’. In this section the Issues Paper quoted the following remarks made by the Magistrate who sentenced the applicant on 11 December 2001:
‘The defendant is 21 years of age and his current situation is little less than tragic. He is not living at the moment, he is existing. But that was all he was doing when he was free because he was, it appears, totally and absolutely addicted to drugs and that was what controlled his whole life. It seems that just about his every waking moment was centred around that addiction. And of course if that addiction continues from now on into the future, the defendant will continue to come before the Court and he will spend most of the rest of his life, no matter how long that is, in gaol, not because gaol is going to do him any good but because he has to be taken out of society because he is seen as being dangerous.’
Next the Issues Paper addressed the likelihood that the applicant’s conduct would be repeated. It referred to the fact that the applicant had received no previous warnings about visa cancellation, his numerous convictions resulting in several short terms of imprisonment and the Magistrate’s comment that the applicant, on his own instructions, had been addicted to benzodiazepines, that this drug use had got out of control and that he had committed the offence to support his drug habit. The Issues Paper also referred to the parole report and quoted from the applicant’s submission, where he explained his criminal history and expressed the view that he had been rehabilitated.
This section of the Issues Paper concluded as follows:
‘Most of Mr Herrera’s criminal convictions have been committed for the sole purpose of obtaining funds to support his drug habit. And although he has in the past tried to stop taking drugs as stated by him, with no success, nothing before the department would indicate that Mr Herrera would not re offend. However, in his favour is his youth and as stated by him the possibility of being removed from Australia has provided him with a “wake up call”. Mr Herrera states that the latter has been the impetus for wanting to change, that it has opened his eyes and to quote his words, “made me think”.
Given the current nature of Mr Herrera’s unresolved drug addiction and his inability to abide by parole obligations, it is open for you to find that Mr Herrera has a moderate to high risk of recidivism.’
The Issues Paper then addressed questions of deterrence, the expectations of the Australian community, and the applicant’s family situation. It pointed out that the applicant had resided in Australia since he was six years old, had his immediate family in this country and had no continuing ties with Chile. The Issues Paper referred also to a letter from the applicant’s father asking for his son to be given an opportunity to remain in Australia. The Issues Paper stated that it was open to the Minister
‘to find that cancelling [the applicant’s] visa would especially cause both him and his father significant emotional hardship. It would also be reasonable to conclude that Mr Herrera’s mother would also suffer significant emotional hardship.’
Part E of the Issues Paper is headed ‘Decision’. It commences with the following statement:
‘I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) my direction under s 499 of that Act and Rodrigo Herrera’s comments, and have decided that:’
Part E then provides the Minister with four options and asks him to delete ‘whichever is not applicable’. The options were as follows:
‘(a) I am satisfied that Mr Herrera passes the character test.
OR
(b)I reasonably suspect that Mr Herrera does not pass the character test and Mr Herrera has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(2) of the Act to cancel the visa;
OR
(c)I reasonably suspect Mr Herrera does not pass the character test and Mr Herrera has not satisfied me that the passes the character test BUT I have decide NOT to exercise my discretion under subsection 501(2) of the Act to cancel the visa BUT Mr Herrera is to be WARNED that a fresh assessment will be made with a view to consider cancelling his visa if he is convicted of any further offences;
OR
(d)I reasonably suspect that Mr Herrera does not pass the character test and Mr Herrera has not satisfied me that the 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.’
On 17 January 2003, the Minister (as I infer) struck out the first three options and selected the fourth.
The Department notified the applicant of the cancelled decision by letter dated 3 February 2003. The letter attached the decision record, consisting of the Issues Paper endorsed and signed by the Minister. The letter included the following paragraph:
‘Because the Minister decided your case personally, you are excluded from appealing this decision to the Administrative Appeals Tribunal. However, you may wish to seek further legal advice as to other avenues of legal review, which may be available to you.’
FAILURE TO GIVE REASONS
The applicant’s counsel, Ms Tucker, argued that the Minister had not set out the reasons for his decision as required by s 501G(1)(e) of the Migration Act and that this failure constituted a breach of the requirement to afford the applicant procedural fairness.
The question of whether the Minister complied with the duty imposed by s 501G(1)(e) is one of fact: Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433, at 448 [49], per Branson J, with whom Goldberg and Allsop JJ agreed. In W157/00A, an issues paper was prepared for the Minister canvassing whether a visa held by a person with a serious criminal record should be cancelled. The Minister was asked to record his decision in Part E of the issues paper, by deleting either ‘Agreed’ or ‘not Agreed’ from a series of propositions. The Minister ‘Agreed’ that the visa should be cancelled.
Branson J observed (at 445 [37]) that the reasons for a decision are distinct from the decision itself and from factual findings on which the decision is based. To give reasons for a decision is to ‘disclose the process of reasoning which led the decision-maker from the factual findings to the decision’. Her Honour went on to say this (at 446 [39]-[40]):
‘I doubt that s 501G(1) is intended to require that the notice therein referred to should emanate from the Minister in the sense that it must be drafted by the Minister. In my view, it would be sufficient for the Minister to adopt as his or her own written reasons prepared by a departmental officer provided, of course, that such reasons actually reflected the reasons why the Minister had reached his or her decision. However, I respectfully agree with the Supreme Court of Canada that a document that does not purport to explain why a decision has been reached is not transmogrified into reasons for that decision by ministerial adoption.
I conclude that the issues document, as completed and signed by the Minister, may only be regarded as a notice that sets out the reasons for the Minister’s decision to cancel the respondent’s visa if it in fact tells the respondent why his visa was cancelled in the sense of explaining to him how the Minister arrived at the conclusion that cancellation of his visa was the appropriate outcome of the exercise of his discretion to cancel or not to cancel the visa. It is thus necessary to give careful consideration to the form and content of the issues document.’ (Emphasis added.)
Her Honour concluded that the notice signed by the Minister did not set out the reasons for the decision as required by s 501G(1)(e).
In my opinion, the decision record in the present case, which was completed after the Full Court delivered judgment in W157/00A, does not set out the Minister’s reasons for the decision to cancel the applicant’s visa. As in W157/00A, the Issues Paper made no firm recommendation to the Minister and thus did not present a suggested conclusion supported by appropriate reasons. Part E of the document records that the Minister considered ‘all relevant matters’ before making his decision. But the document does not explain why the Minister reached the conclusion he did. In particular, it does not specify what factors the Minister considered to have special weight and why he considered that the applicant should not be given a formal warning before his visa was cancelled, thereby giving him an opportunity to ‘mend his ways’.
The next question is what, if anything, flows from the Minister’s failure to comply with s 501G(1)(e).
Ms Tucker did not seek an order, of the kind made in Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 332 (Allsop and Jacobson JJ, Sackville J dissenting), directing the respondent to give the applicant the reasons for the cancellation decision as required by s 501G(1)(e). She pointed out that in Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298, the Full Court (Lee, Goldberg and Weinberg JJ) expressed concern that ‘real difficulties’ could arise if the course taken in Ayan were generally followed. Their Honours observed (at [64]) that:
‘s 501G(1)(e) requires the Minister to provide reasons at the time the decision is notified. There are obviously dangers in relying upon any statement of reasons, produced long after a decision is taken, as accurately reflecting the matters that most influenced the decision-maker at the time the decision was made.’
The Court in Dagli recognised that both the decision in Ayan and comments in the joint judgment (Gleeson CJ, Gummow and Heydon JJ) in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327, at 337 [48], support the view that mandamus may be available to enforce the Minister’s statutory duty, even though considerable time has elapsed since the decision. However, their Honours in Dagli took issue (at [69]) with the proposition that an order in the nature of mandamus would amount to an order that the Minister comply with his or her statutory duty:
‘That duty required that the Minister provide reasons at the time he notified the appellant of his decision. A statement of reasons provided six months later, in response to an order of the Court, is not compliance with the Minister’s statutory duty. The power to make such an order should, in our view, be sparingly invoked. When reasons are provided, long after a decision is taken, they should be treated with extreme caution.’
In the present case a further difficulty arises because the Minister who made the cancellation decision is no longer the Minister for Immigration and Multicultural and Indigenous Affairs. In view of the fact that the applicant does not seek an order in the nature of mandamus, it is not necessary to consider the significance of a change in the identity of the Minister between the date of the decision and the hearing in this Court.
The applicant’s submission that the Minister’s failure to comply with s 501G(1)(e) of the Migration Act constitutes a jurisdictional error encounters the formidable obstacle that it appears to be directly inconsistent with the decision of a majority of the High Court in Ex parte Palme. The joint judgment in that case reasoned as follows (at 336-337 [44]-[48]):
‘Here, the question is whether the step under s 501G which logically and temporally succeeds the making of a decision in exercise of a power is a condition precedent to that exercise. The possibility that this is so may be conceded. But, as Project Blue Sky [Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 390-391 [93]] emphasised, the answer depends upon the construction of the Act to determine whether it was a purpose of the Act that an act done or not done, in breach of the provision, should be invalid. This gives rise to several immediate difficulties for the prosecutor.
First, “the act” upon which the prosecutor fixes for relief by way of certiorari and prohibition is not the failure to give the written notice required by s 501G, but the exercise of the power of visa cancellation conferred by s 501(2). Secondly, the Act deals expressly in s 501G(4) with the interrelation between cancellation and notification. The stipulation it makes is that a failure in notification does not of itself affect the validity of the cancellation.
The cancellation decision may still be reviewed under s 75(v) of the Constitution for jurisdictional error otherwise arising. The prosecutor’s attack, albeit unsuccessful, for denial of natural justice is an immediate example. But failure in the notification required by s 501G does not impeach the cancellation decision for jurisdictional error.
…
The visa cancellation decision may be reviewed in this court for jurisdictional error. Such error may be found from what is disclosed by reasons provided under s 501G(1)(e). Failure to provide reasons may also be reviewed in this court and compliance by the minister with the statutory duty may be ordered. The reasons then provided may furnish grounds for prohibition under s 75(v) in respect of the visa cancellation decision. But what is not provided for is for a prosecutor, as in this case, to bypass that earlier step utilising mandamus, and to impeach the visa cancellation decision itself for want of discharge of the duty to provide reasons. There is, as was pointed out in argument, a critical distinction between failure to comply with s 501G(1)(e) and using that failure to conclude that the visa cancellation decision is flawed by jurisdictional error.’ (Emphasis added.)
Ms Tucker was unable to give any reason why this analysis is not determinative in the present case. As the Full Court recognised in W157/00A (albeit reluctantly), mandamus may lie to compel the Minister to comply with his or her statutory duty. The Minister’s failure to set out reasons might also be significant if it is necessary to make a finding as to why he or she acted in a particular way: cf W157/00A, at 454 [78], per Branson J. But non-compliance with s 501G(1)(e) does not, of itself, constitute a jurisdictional error warranting the grant of prerogative relief.
The applicant does not seek any declaratory relief. Nor does he make any claim for injunctive relief independently of his claim for writs of mandamus and certiorari. It follows that he is not entitled to relief by reason of the Minister’s non-compliance with s 501G(1)(e).
PROCEDURAL FAIRNESS
Two elements of the applicant’s procedural fairness case can be dealt with briefly.
One complaint was that the Issues Paper failed to provide ‘meaningful disclosure’ of the parole report dated 25 August 2002. This complaint is difficult to understand since the Department provided the applicant with a copy of the parole report on 9 September 2002 and indeed he expressly acknowledged receipt of the document. He was told that the report would be used in the ‘preparation of [his] case’ to be submitted to the Minister and he was invited to make comments on the contents of the report. The applicant had the parole report for 11 days before he returned the questionnaire to the Department. For reasons that have not been explained, he chose to make no specific comment on the report.
The applicant was plainly put on notice that the parole report was to be used in preparing his ‘case’ for the Minister. He was given an opportunity to comment, but chose not to take advantage of it. There was no evidence that the applicant was misled by anything that the Minister did or did not do in relation to the parole report. In these circumstances, fair disclosure was made to the applicant of the parole report and an adequate opportunity given to him to respond.
A second complaint was that the applicant was not given a sufficient opportunity to explain the circumstances in which he was twice convicted of breaching an apprehended violence order (the ‘ADVO convictions’), once in 1997 in Bidura Children’s Court and once in 1999 in Kogarah Local Court. But he was provided an 22 July 2002 with a copy of his criminal record, which included the ADVO convictions (among many others). He was also given the standard questionnaire, which he duly completed. The questionnaire made provision for the applicant to explain the reasons for committing offences other than the most recent offences for which he was considered on 11 December 2001. The applicant provided an explanation, but made no specific reference to the ADVO convictions.
In his brief oral evidence, the applicant acknowledged that he regarded the ADVO convictions as relatively minor compared with convictions for more serious offences such as assault occasioning actual bodily harm, break, enter and steal and larceny. I infer that the principal reason he made no specific reference to the ADVO convictions was that he regarded them, correctly, as likely to be less significant for the visa cancellation decision than his other convictions. In any event, the applicant was afforded an adequate opportunity to comment on those convictions. He was not denied procedural fairness on this account.
There may be a little more substance to the third complaint, that the applicant was not given an adequate opportunity to comment on the Magistrate’s remarks on sentencing made on 11 December 2001. On 8 August 2002, the Department sought a copy of the transcript of what was described as ‘the trial judge’s summation at the time of passing sentence’. The material in the Application Book does not make clear when the Department received the transcript, but it was probably shortly after 8 August 2002. (The transcript itself seems to have been prepared on 15 July 2002.) Although the Notice of 17 July 2002, received by the applicant on 22 July 2002, invited him to comment on ‘the Judge’s comments’, the applicant was not given a copy of the Magistrate’s sentencing remarks, then or at any later time.
The Magistrate’s recorded sentencing remarks were very brief, covering less than a single page of transcript. The paragraph from the remarks quoted in the body of the Issues Paper ([22] above) encapsulates the substance of the Magistrate’s reasons, except for a reference in the succeeding paragraph of the reasons to the applicant’s age warranting a reduction in the appropriate sentence from 16 to 18 months to twelve months.
The requirements of procedural fairness apply to the Minister’s decision to cancel a visa under s 501(2) of the Migration Act: see the sub-heading to s 501 and s 501(5). Natural justice or procedural fairness
‘does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.’
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296, at 311, per Gibbs CJ, cited in Kioa v West (1985) 159 CLR 550, at 614, per Brennan J. What is required is an assessment of whether there has been ‘practical injustice’: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502, at 510 [34], 511 [38], per Gleeson CJ; Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 139, at [20]. There will be practical injustice if the person concerned is not informed of material adverse to his or her case which is credible, relevant and significant to the decision to be made: Kioa v West, at 628-629, per Brennan J; Muin v Refugee Review Tribunal (2002) 190 ALR 601, at 631 [123], per McHugh J; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, at 591-592, per curiam.
This does not mean, however, that an applicant, in order to obtain relief by reason of a denial of procedural fairness, must demonstrate what he or she could usefully have said in response to adverse material not drawn to his or her attention by the decision-maker. The Full Court in Dagli quoted and endorsed the views expressed by Hely J in Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069, at [34]:
‘If a breach of the rules of natural justice is established an applicant would ordinarily be entitled to relief unless the Court was satisfied that the breach could have had no bearing on the outcome: Stead v State Government Insurance Commission (1989) 161 CLR 141 at 147; Re Refugee Review Tribunal; Ex parte Aala [(2000) 204 CLR 82] at 116-117. Accordingly, I reject the submission put by the solicitor for the Minister that this application must fail because of the failure on the part of the applicant to demonstrate by evidence that some practical unfairness accrued to him as a result of the procedures which were adopted. If the applicant was not informed of the case which he had to meet, that is sufficient to establish a “practical injustice” without the applicant having to prove what he would have done had he been informed of that case.’ (Emphasis in the Full Court judgment.)
The invitation in the Notice to the applicant to comment on ‘the Judge’s comments’ was ambiguous. The comments the author of the Notice had in mind were presumably the sentencing remarks made by the Magistrate on 11 December 2001. As it happens, the applicant had never been sentenced other than by a Magistrate; despite his extensive criminal record, he had never been convicted in the District Court. Although the applicant swore an affidavit in these proceedings and was cross-examined, he gave no evidence to the effect that he did not understand the reference in the Notice to ‘the Judge’s comments’ or that he thought it referred to something other than the sentencing remarks made on 11 December 2001. (His longest previous sentence had been two months imprisonment.) As I understood her, the applicant’s counsel made no submission that I should find that the applicant had been misled by or had failed to understand the reference in the letter of 17 July 2002 to ‘the Judge’s comments’. In any event, on the evidence I am not prepared to make such a finding.
As Mr Bromwich pointed out on behalf of the Minister, the applicant was present when the Magistrate made his sentencing remarks. In my opinion, however, this is not a complete answer to the applicant’s claim that he was denied procedural fairness by the Minister. At the time the applicant received the Notice, over seven months had passed since his latest sentencing. Bearing in mind the stress associated with being sentenced to imprisonment and the time that elapsed before the applicant was told that his visa might be cancelled, he could hardly be expected to remember the details of the sentencing remarks when the time came to complete the questionnaire. In particular, he could not necessarily be expected to recall which aspects of the sentencing remarks might prove significant to the Minister’s cancellation decision.
Whether the applicant has been denied procedural fairness ultimately depends on the content of the sentencing remarks and the role, if any, they played in the Minister’s decision. The Magistrate made essentially two points. The first was that the applicant was not ‘living’ but merely ‘existing’ because he was ‘totally and absolutely addicted to drugs’. The second was an observation that if the applicant’s addiction continued he would spend most of the rest of his life in gaol, not because gaol would do him good, but because he would be seen by the community as dangerous.
The first point was no more than a reflection of what was put on the applicant’s behalf to the Magistrate in sentencing submissions. The applicant’s representative said (as the Issues Paper records) that he had been instructed that the applicant’s use of benzodiazepines had got out of control the ‘last few months’. This was put as a mitigating factor. More importantly for present purposes, the applicant’s responses on the questionnaire he completed took as their starting point that his bad record was due to his ‘drug problem’. He stated explicitly that when he went off heroin he started to take benzodiazepines, ‘lost control’ and did ‘very stupid things’. He explained his most serious offence as the product of taking Serepax and beer together and ‘being an idiot not knowing what I was doing’.
In other words, it has never been in dispute that the applicant was ‘totally and absolutely addicted to drugs’ at the time he committed most of his offences. Indeed, the foundation of his submission to the Minister was that he had been addicted to drugs, but that if he were given one more chance he would straighten himself out, since he had had enough of living his life in that way. Thus the Magistrate’s first comment in the sentencing remarks was entirely consistent with the applicant’s own position both before the Magistrate and in his submission to the Minister. Only the language was different.
The Magistrate’s second point was simply a warning to the applicant that stated no more than the obvious, namely that if he did not curb his addiction, he would face spending most of his life in gaol because he would be perceived as a danger to the community. The Magistrate’s observation would seem to have been a virtually inevitable conclusion from the applicant’s record and his addiction to heroin and benzodiazepines. Once again, the Magistrate’s comment was in no way inconsistent with the applicant’s position, either as presented at the sentencing hearing or in the applicant’s submissions to the Minister. Both recognised that his future depended entirely on his successfully tackling his addiction to drugs, specifically heroin and benzodiazepines.
Given that the Magistrate’s sentencing remarks were entirely consistent with the applicant’s own position, I do not think that the Minister’s failure to provide a copy of the transcript to the applicant denied him procedural fairness. The applicant’s own submissions to the Minister in substance accepted the accuracy of the Magistrate’s observations. The Minister, to the extent that he took into account the Magistrate’s observations, could only have seen them as supporting the applicant’s analysis of the source of his difficulties. In these circumstances, in my opinion, there was no practical injustice in the course adopted by the Minister.
I stress, however, that this conclusion does not mean that the Minister can safely assume that there is never any need to provide someone whose visa is threatened with cancellation a copy of the transcript of relevant sentencing remarks. Everything will depend on the circumstances of the case.
CONCLUSION
The application must be dismissed. The applicant must pay the respondent’s costs.
I add a further comment. Obviously enough, the exercise of the Minister’s power under s 501(2) of the Migration Act to cancel a visa can have profound consequences for permanent Australian residents. The exercise of the power can even affect people who have lived in this country since infancy. If the power of cancellation is exercised by the Minister personally under s 501(2), no merits review is available in the Administrative Appeals Tribunal or elsewhere. Moreover, as Ex parte Palme shows, the failure of the Minister to give reasons for his or her decision to cancel a visa does not of itself invalidate the decision. Thus a permanent Australian resident may be removed from Australia without ever having been told why the Minister has exercised his or her discretion to cancel the visa.
In the present case, the applicant became liable to cancellation of his visa by virtue of the sentence of 12 months imprisonment imposed on him on 11 December 2001 (Migration Act, s 501(7)(c)). No reference was made at his sentencing hearing to the fact that such a sentence (as distinct from one for a shorter period) exposed him to possible removal from Australia (see also par (d) of the definition of ‘substantial criminal record’ in s 501(7)). The first time he appears to have been made aware of the consequences of his criminality for his permanent residence in this country was when he received the Notice from the Department in July 2002. The applicant still does not know why the Minister considered it inappropriate to give him a formal warning, and instead chose to cancel his visa immediately.
It is for others ultimately to determine whether the current legislative scheme is satisfactory. In my view, however, there are strong grounds for reconsidering whether the scheme provides adequate protection to permanent residents of this country who face removal by reason of an inability to satisfy the character test.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate:
Dated: 14 April 2004
Counsel for the Applicant: Ms L Tucker Solicitor for the Applicant: Turner Freeman Counsel for the Respondent: Mr R Bromwich Solicitor for the Respondent: Clayton Utz Date of Hearing: 31 March 2004 Date of Judgment: 14 April 2004
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