Horne v Minister for Immigration and Citizenship
[2008] FCA 581
•1 May 2008
FEDERAL COURT OF AUSTRALIA
Horne v Minister for Immigration and Citizenship [2008] FCA 581
MIGRATION – visa holder’s visa cancelled by reason of his substantial criminal record and consequent failure to pass ‘character test’ – visa holder did not receive notices advising him that cancellation was being considered – whether there was a denial of procedural fairness – whether Minister took reasonable steps to notify the visa holder of the cancellation
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth), ss 189, 192, 198, 501, 504
Social Security (Administration) Act 1999 (Cth), s 208
Migration Regulations, reg 2.55Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 cited
Briginshaw v Briginshaw (1938) 60 CLR 336 referred to
Minister for Immigration and Multicultural and Indigenous Affairs v Ball (2004) 138 FCR 450 discussed
Minister for Immigration and Multicultural and Indigenous Affairs v George (2004) 139 FCR 127 discussed
Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416 discussed
Plaintiff S157 v Commonwealth (2003) 211 CLR 476 citedRe Refugee Tribunal; Ex part Aala (2000) 204 CLR 82 cited
SIMON HIPA HORNE v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 2464 OF 2007
SACKVILLE J
1 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2464 OF 2007
BETWEEN:
SIMON HIPA HORNE
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
SACKVILLE J
DATE OF ORDER:
1 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.An order in the nature of certiorari be made quashing the decision of the respondent, made on 20 September 2007, to cancel the applicant’s Subclass 444 Special Category (Class TY) visa (‘the Decision’).
2.An order in the nature of prohibition be made prohibiting the respondent from acting upon the Decision.
3.The respondent pay the applicant’s costs of the proceedings.
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
NSD 2464 OF 2007
BETWEEN:
SIMON HIPA HORNE
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
SACKVILLE J
DATE:
1 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE PROCEEDINGS
The applicant is a New Zealand citizen, born in 1967. He first entered Australia in 1975 under the entry provisions then relating to New Zealand citizens. The applicant left Australia in November 1995, but returned on 19 February 1997. Upon his return, the applicant was issued with a Subclass 444 Special Category (Class TY) visa (available to New Zealand citizens). This is his sole authority to remain in Australia.
The applicant has an extensive criminal record in Australia. There is no dispute that he has a ‘substantial criminal record’ within the meaning of that expression in s 501(7) of the Migration Act 1958 (Cth) (‘Migration Act’).
On 20 September 2007, the then Minister for Immigration and Citizenship cancelled the applicant’s visa. The decision recorded that:
·by reason of the applicant’s substantial criminal record, the Minister could not be satisfied that the applicant passed the so-called ‘character test’ laid down by s 501(6) of the Migration Act; and
·the Minister had decided to exercise his discretion under s 501(2) of the Migration Act to cancel the applicant’s visa.
The applicant challenges the Minister’s cancellation decision, invoking the jurisdiction of the Court under s 39B(1) and (1A) of the Judiciary Act 1903 (Cth). The applicant relies on the single ground that the decision was vitiated by a denial of natural justice. The basis for this contention is that the applicant never received any of the three letters sent to him by the Department of Immigration and Citizenship (‘Department’) notifying him of the Minister’s intention to consider cancellation of his visa pursuant to s 501(2) of the Migration Act. In consequence, so the applicant contends, he was denied the opportunity to put submissions to the Minister and the cancellation decision was affected by jurisdictional error.
The respondent (‘the Minister’) does not dispute that the applicant did not receive the notice, but argues that the Department took reasonable steps to give the applicant actual notice of the Minister’s intention. In these circumstances, the Minister submits that the applicant was not denied natural justice and that the proceedings should be dismissed.
THE LEGISLATION
Section 501 of the Migration Act deals with ‘Refusal or cancellation of visa on character grounds’. The material terms of s 501 are as follows:
‘Decision of Minister or delegate – natural justice applies
(1) …
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Otherwise, the person passes the character test.
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more
…’
Section 504(1)(e) of the Migration Act provides that the Governor-General may make regulations for or in relation to the giving of documents to, or the service of documents on, any person for the purposes of the Act. Section 504(3) states that regulations may be made under s 504(1)(e) providing that a document given to, or served on, a person in a specified way shall be taken to have been received by the person at a specified or ascertainable time.
Regulation 2.55 of the Migration Regulations was made pursuant to the powers conferred by s 504(1)(e) and (3) of the Migration Act: Minister for Immigration and Multicultural and Indigenous Affairs v George (2004) 139 FCR 127, at 140 [33], per curiam. Regulation 2.55 applies, among other cases to ‘the giving of a document to a holder … of a visa relating to the proposed cancellation … of a visa’: reg 2.55(1)(a). Regulation 2.55(3) provides that a document of this kind must be served in one of a number of specified ways including:
‘(c)by dating it, and then dispatching it:
(i)within 3 working days (in the place of dispatch) of the date of the document; and
(ii)by prepaid post …
to the person’s last residential address … known to the Minister.’
Regulation 2.55(7) provides that if the Minister gives a document to a person by dispatching it by prepaid post, the person is taken to have received the document seven working days after the date of the document.
BACKGROUND
The applicant, his partner and one of their three children gave affidavit evidence in the proceedings. Counsel for the Minister, Mr Kennett, did not object to any portion of the affidavits read on behalf of the applicant. Nor did Mr Kennett cross-examine any of the deponents. There is therefore no dispute about the underlying facts.
On 4 December 2001, the Department notified the applicant, who was then in Junee Correctional Centre, that the Minister or a delegate intended to consider cancellation of his visa. The applicant responded in writing to the notification on 27 December 2001. On 14 February 2002 the Minister decided not to exercise his discretion under s 501(2) of the Migration Act to cancel the visa. However, the Minister warned the applicant that a conviction for any further offence would result in a fresh assessment of whether cancellation of his visa should be considered.
The Minister’s interest in the applicant appears to have been revived by his conviction in the Court of Petty Sessions of Western Australia on 4 March 2005 for breaking into the house of a 92 year old lady, for which he was sentenced to nine months’ imprisonment. On 5 January 2006, the Department wrote to the applicant by registered mail notifying him of the intention to consider cancellation of his visa. The letter was sent to an address in Gosnells in Western Australia. The applicant had lived at that address with his family after his release from prison on or about 18 July 2005. However, in late 2005 the applicant left that address and stayed in a series of men’s refuges. At the time the Department sent the notice, the applicant was living alone in a unit provided by Mission Australia, although two of his children visited him there from time to time.
On 6 January 2006, one of the applicant’s daughters signed a ‘Delivery Confirmation Advice Receipt’ for the registered letter addressed to the applicant, using her usual signature. There was uncontradicted evidence that the daughter did not give the letter to the applicant or tell anyone about it. The applicant’s uncontradicted evidence was that he first saw the letter after the visa cancellation decision had been made.
The Department duly received the delivery confirmation signed by the applicant’s daughter. On 21 February 2006, an officer endorsed a file copy of the letter of 5 January 2006 with a notation: ‘Please confirm the accuracy of this [Gosnells] address’. No further action was taken at this time in relation to cancellation of the applicant’s visa.
In October 2006, a Departmental case officer made several attempts to ascertain whether the applicant would be making any written response to the notice of 5 January 2006. The steps consisted of:
·telephoning a mobile telephone number provided by Centrelink (out of service);
·telephoning the applicant’s partner at her home address in Huntingdale, Western Australia, on several occasions (no answer); and
·telephoning what was thought to be the partners’ mobile telephone number (advised that the number was incorrect).
A file note of 23 October 2006 recorded that the Western Australian Police listed the applicant as residing at the Huntingdale address. In fact, at about this time the applicant was staying in a number of places offering short-term accommodation. Members of his family apparently continued to live at the Gosnells address, but the applicant was not able to reside there because one of his daughters had taken out an apprehended violence order against him.
On 10 January 2007, the Department sent a second notice of intention to consider cancellation of the applicant’s visa by registered mail to the Gosnells address. A signed delivery confirmation was returned to the Department. The evidence suggests that an acquaintance of the applicant, a Mr Bazely, signed the delivery confirmation, apparently in the applicant’s name. In any event the signature was not that of the applicant. The applicant also did not see this notice until after his visa had been cancelled.
The Department sent copies of the letter of 10 January 2007 to the applicant at two other addresses, including the Huntingdale address. Both were returned to sender, the latter with the annotation that the applicant had ‘left address’. Once again, the Department did not give any further consideration at this time to cancellation of the applicant’s visa.
On 15 June 2007, the Department requested Centrelink to provide ‘any updated address information for the applicant’. Centrelink responded by stating that:
‘Customer current address is:- Colour City Caravan Park Orange 2800’.
On 28 June 2007, the Department sent a third notice of intention to consider cancellation of the applicant’s visa. This notice was sent to the applicant at the Colour City Caravan Park, but was returned to the Department on 9 July 2007 marked ‘Left address/Unknown’.
On the day the third notice was returned to the Department it requested Centrelink to advise:
‘whether the client may have updated address information with Centrelink if in receipt of an ISP or family payment.’
The Department’s request noted that it had attempted to make contact with the applicant, but that it had been advised that he had left the address. Centrelink responded on this occasion by advising that:
‘Customer … currently resides at Colour City [Caravan] Park Orange 2800.’
In June 2007, the applicant had spent several weeks at another caravan park in Orange. He went to Centrelink during this period to arrange payment of a benefit. Centrelink helped him obtain accommodation at the Colour City Caravan Park, where he stayed for only a week. The applicant then travelled to Sydney and apparently commenced work there. Although the applicant had been advised by a case officer to notify Centrelink when he had a new address, he did not do so.
On 21 June 2007, very shortly after arriving in Sydney, the applicant was taken into custody by the New South Wales Police. On that day, he appeared in a Local Court and was refused bail. It is not entirely clear whether he was convicted of further offences or was returned to prison for breach of parole conditions or for some other reason. In any event, he remained in custody from 21 June 2007 until 20 March 2008. He was released on the latter date, but was immediately taken into immigration detention.
In the meantime, on 21 August 2007, a Departmental officer submitted to the Minister an Issues Paper seeking a decision on whether to cancel the applicant’s visa. The Issues Paper recorded the history of the attempts to contact the applicant. The account included the following:
‘On 15 June 2007 Centrelink confirmed Mr HORNE’s new address and on 28 June 2007 Mr HORNE was notified by registered mail at his current address at Colour Caravan Park Orange NSW 2800 of the intention to consider cancelling the visa held by him pursuant to s.501 of the Act. The cancellation grounds were set out in the Notice and he was invited to submit any comment that he believed relevant to the consideration of the issue of visa cancellation. On 9 July 2007 the Notice was returned to the Department marked “Left address/Unknown”. On 9 July 2007, Centrelink confirmed once again that Mr HORNE’s current address was Colour Caravan Park Orange NSW 2800. Given these circumstances, Mr HORNE is deemed to have received the Notice dated 28 June 2007.
Centrelink confirmation of Mr HORNE’s current address dated 15 June 2007 and 9 July 2007 are at Annex E.
Copies of the Notices of Intention to Consider Cancelling a visa dated 5 January 2006, 10 January 2007 and 28 June 2007 and the Australia Post Delivery Confirmation Advice Receipts dated 6 January 2006, 15 January 2007 and the Centrelink confirmations of Mr HORNE’s current address dated 15 June 2007 and 9 July 2007 are at Annex E.’
The reference in the first paragraph of this extract to the applicant being deemed to have received the notice was apparently to reg 2.55, the relevant terms of which have been extracted earlier. Of course, at the time the Issues Paper was submitted to the Minister, the applicant had been in custody for two months. He remained in custody at all times until the Minister made the cancellation decision on 20 September 2007.
On 19 November 2007, the applicant was notified in writing that his visa had been cancelled. At that time he was in custody at Parklea Correctional Centre. There was no evidence as to how the notice came to the applicant’s attention or whether the Department had learned that the applicant was in custody and, if so, how it came by that information.
SUBMISSIONS
There is no dispute that the rules of natural justice or procedural fairness apply to a decision by the Minister to cancel a visa pursuant to s 501(2) of the Migration Act. On this basis, the applicant submits that, in the absence of any statutory constraints on the requirements of natural justice, the question is simply what is procedurally fair. Fairness requires that a person faced with cancellation of his visa and deportation be informed of the possibility of an adverse decision and have the opportunity to make representations to the decision-maker. In this case the applicant, by reason of his peripatetic lifestyle and the failure of the Department to ensure he was actually notified of the intention to consider cancellation of his visa, was denied that opportunity.
The Minister relies on the decisions of French J in Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416 and of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Ball (2004) 138 FCR 450. These authorities are said to stand for the principle that the requirements of procedural fairness are satisfied if the Department or Minister has made reasonable efforts to notify the visa holder that cancellation of the visa is under active consideration. In this case, the Department had made such efforts over a period of time, including the inquiry made of Centrelink after the notice of intention to consider cancellation of the applicant’s visa, sent on 28 June 2007 had been returned undelivered. The Minister submits, therefore, that the present case falls within the principle established by Osborne v Minister and Minister v Ball and that the applicant was not denied procedural fairness despite not receiving any of the three notices sent to him.
In his oral submissions, Mr Karp, who appeared for the applicant, contended that the Department had not made reasonable efforts to ensure that the notice of intention to consider cancellation of the visa actually came to the attention of the applicant. He argued that there were obvious steps that the Department could and should have taken once the notice of 28 June 2006 was returned undelivered. In the absence of evidence that the Department had made additional inquiries, the present case could not be said to be governed by the principle applied in Osborne v Minister and Minister v Ball.
REASONING
As I have noted, there is no dispute that the Minister was required to comply with the rules of procedural fairness before making the decision to cancel the applicant’s visa. There is also no dispute that if the Minister failed to afford the applicant procedural fairness, the cancellation decision would be affected by jurisdictional error. In these circumstances, relief in the nature of certiorari would be available to quash the decision: Re Refugee Tribunal; Ex part Aala (2000) 204 CLR 82; Plaintiff S157 v Commonwealth (2003) 211 CLR 476; Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651.
Competing Considerations
Cases such as the present create a difficulty. There can be few decisions of greater importance to the liberty and security of an individual than a decision by the Executive branch of government to cancel his or her visa. Such a decision renders the individual liable to immediate detention and removal from Australia: Migration Act, ss 189, 192, 198. Procedural fairness would seem to require, therefore, that the visa holder be afforded ample opportunity to put to the decision-maker reasons why the power to cancel the visa should not be exercised.
On the other hand, those responsible for administering the Migration Act will often encounter difficulties in contacting a visa holder in order to notify him or her that consideration is to be given to cancellation of the visa. This may be so even where the Department goes to considerable lengths to ensure that the visa holder is notified of the process and receives an adequate opportunity to present his or her case. If it is impossible for the Minister to cancel a visa validly unless actual notice is given to the visa holder in advance, the process might be frustrated, to the detriment of the public interest. (I note, however, that s 192 of the Migration Act empowers an officer to detain a non-citizen if the officer reasonably suspects that the non-citizen holds a visa that may be cancelled and that the non-citizen will not co-operate with officers in their inquiries.)
Authorities
Osborne v Minister
In Osborne v Minister, French J attempted to balance these competing considerations. In that case, the visa holder, a New Zealand citizen, had committed a number of offences. While in prison he told a Departmental officer that, upon his release, he intended to reside with his mother at a particular address. Following the visa holder’s release in September 2000, he lived with his mother for three months but then moved to another address. In July and September 2001, letters were sent to the visa holder at the mother’s address, but he received neither of them (although friends told him in September 2001 that a registered letter had been sent to him). The Minister cancelled the visa in February 2002 on character grounds, without having received any representations from the visa holder.
French J pointed out (at 423) that there is no express provision in the Migration Act requiring notice to be given to a visa holder as a condition of the exercise of the Minister’s power to cancel the visa under s 501. Nevertheless, in his Honour’s view:
‘prior notice to the visa holder is to be implied as a necessary condition of the power for it cannot be exercised unless: “The person does not satisfy the Minister that the person passes the character test.” It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister’s intention to cancel. Some process of notification is therefore contemplated even though the Act does not set it out. Indeed the regulations seem to assume as much.’
French J considered that the implied condition of notification could not be absolute:
‘otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires only that reasonable steps be taken to notify the visa holder. To send a notice of intended cancellation to his last known address is a reasonable step. When that last known address is the address of a close relative of the visa holder, in this case his mother, and with whom he had expressed an intention to resume living, then it is plainly a reasonable process.’
His Honour went on to say that the aid of the Migration Regulations (by which he appears to have meant reg 2.55) was not required to determine what was reasonable. He pointed out that, in any event:
‘[t]hey do not in terms condition the effect of exercise of the power under s 501.’
Minister v Ball
Osborne v Minister was followed by the Full Court in Minister v Ball. In the latter case, the notice was sent by the Department to an address in Kalgoorlie supplied by the visa holder when she had appeared in court charged with an offence in January 2003. It was also the address she had supplied to the Australian Taxation Office in March 2002. The Department sent the notice on 29 January 2003, but the visa holder had moved to Melbourne a few days earlier. The notice was returned to the Department ‘unclaimed’ on 11 March 2003.
The Minister cancelled the visa holder’s visa on 13 March 2003. The Issues Paper was presented to the Minister some time before the notice was returned to the Department. The Paper stated that the visa holder had been notified by mail of the intention to cancel her visa, but that she had not responded.
All members of the Full Court (Dowsett, Jacobson and Bennett JJ) held that the Department had taken reasonable steps to notify the visa holder. Dowsett J considered (at 457 [22]) that, in the absence of submissions from the visa holder, the Minister should have considered whether adequate steps had been taken to notify her. However, the only step that the visa holder’s counsel could suggest was a newspaper advertisement, which Dowsett J thought would have been unlikely to produce any result. In his view, there was nothing more that the Department could reasonably have done.
Jacobson and Bennett JJ adopted similar reasoning (at 474 [104]):
‘The Regulations establish a mechanism for notification which had been followed in Osborne and have been found, as a matter of fact, to have been followed in the present case. Even if it is accepted that, by the time the Minister made the decision, she was aware that the Notice had been returned unclaimed, the taking of those reasonable steps in circumstances where no alternative address for the respondent was known was sufficient. Otherwise, a person deliberately evading service could deprive the Minister of the power to cancel the visa. In the present case, the respondent continued to give the Kalgoorlie address after the Notice was returned unclaimed and the decision was made.’
Minister v George
Shortly after the decision in Minister vBall, a Full Court addressed similar issues in Minister v George, although the judgment of the Court made no reference to the earlier decision of the Full Court. In Minister v George, the Department sent two letters to the visa holder. The first was sent to an address held by the Department, but it was returned undelivered. The second was sent to an address supplied by the Western Australian Police. The visa holder was not living at this address at the time, although he commenced living there later. The second letter was not returned to the Department, but the visa holder received neither letter. The Minister subsequently cancelled her visa. The Minister believed at the time he made the decision that the visa holder had been notified of the cancellation process and had not taken up the invitation to make submissions.
The trial Judge held that the limited and unsuccessful attempts to contact the visa holder constituted a denial of procedural fairness. On appeal, the Full Court followed (at 139 [27]) Osborne v Minister, holding that the requirement in s 501(2) that the visa holder ‘does not satisfy the Minister that the [visa holder] passes the character test’ implied that some prior notice had to be given of the Minister’s intention to cancel the visa. The Court also held (at 139 [29]) that procedural fairness required the visa holder to be given an opportunity, assuming that the Minister was not satisfied that the visa holder passed the character test, to persuade the Minister not to exercise the discretion to cancel the visa.
Their Honours observed (at 139 [30]) that, notwithstanding the principles of procedural fairness, it is open to Parliament to specify circumstances in which notification of a cancellation process is deemed to be given to a person. Parliament can also confer on the Executive power to achieve the same result by regulation.
The Minister had relied on reg 2.55(7) to support the conclusion that, since the notice was sent to the visa holder at the address supplied by the Police, he was deemed to have received it. The Court held (at 141 [35]) that reg 2.55, in terms, only applies where the notice is sent to the actual address of the visa holder. The addresses to which the Department dispatched the letters were not and never had been addresses of the visa holder. Their Honours were of the view that reg 2.55(7) had no application to letters sent to an address with which a visa holder never had any connection.
The Minister’s alternative contention in Minister v George was that procedural fairness had been satisfied because reasonable steps had been taken to notify the visa holder. The Court considered (at 142 [40]) that this contention raised the following question:
‘where notice is sent to an address that was believed by the Minister or his officers, on reasonable grounds, to be the current residential address of a visa holder, does that satisfy the prerequisite of procedural fairness, when the address has never in fact been an address of the visa holder?’
Their Honours answered this question in the negative (at 145 [53]):
‘Where the Minister believes, erroneously, albeit on reasonable grounds, that a visa holder has been notified and proceeds on that untrue basis, there will be an error. The question is whether that error is a jurisdictional error. In order to determine whether a particular order is jurisdictional, it is essential to consider the relevant statutory context. … In circumstances where a visa entitles the holder to permanent residence in Australia and cancellation will render that person liable to detention and removal from Australia, a mistake as to whether the person has been notified of the intention to consider cancelling the visa is a very significant one. Such a mistake will be even more significant if the consequences of the cancellation of a visa entitling the holder to permanent residence in Australia may include separation from his family and removal to a country with which he no longer has any social connection. Such a mistake acted upon as it was here, must be regarded as going to the jurisdiction of the decision-maker to cancel the visa where procedural fairness is required before doing so. Failure to do so will normally involve jurisdictional error, notwithstanding that what occurred was subjectively fair from the point of view of the decision-maker, because, on the material and information available to the decision-maker, it was reasonable to conclude that a right to be heard had been afforded. Of course, this general statement is subject to any contrary indications within the relevant statutory scheme including, in this case, the deeming provisions within the Act. However, for the reasons already given, they do not assist in this case.’
The Court recognised (at 145 [54]) that there might be circumstances where the procedure followed by the Department is fair, even though the visa holder does not receive the notice. Their Honours gave the example of a person who avoids communicating with the Minister because of a fear that the communication may be detrimental. They also observed (at 146 [54]) that between the clear-cut cases:
‘there will be some circumstances which involve lack of procedural fairness and others where there will be no want of procedural fairness.’
Principles
It is not easy to reconcile the Full Court decisions in Minister v Ball and Minister v George. In each case, so it would seem, the Minister erroneously believed on reasonable grounds that the visa holder had been notified of the intention to consider cancellation of the visa. In George such a finding was express. In Minister v Ball it is to be inferred from the finding that the Departmental Issues Paper informed the Minister that the visa holder had been notified and had not responded, but did not inform the Minister that the notice sent to the visa holder had been returned undelivered. The precise holding in Minister v George was that the Minister committed a jurisdictional error by acting on his erroneous belief that the visa holder had received actual notice that cancellation of the visa was under active consideration.
Despite the difficulty in reconciling the two Full Court decisions, certain propositions seem to emerge from the cases:
·The power conferred by s 501(2) of the Migration Act is subject to an implied condition that the visa holder be given notice that the Minister intends to consider cancelling his or her visa.
·In any event, procedural fairness, to which the statutory power is subject, requires the visa holder to be given an opportunity to persuade the Minister not to exercise the discretionary power of cancellation.
·Parliament may specify that a visa holder is deemed to have been notified of the cancellation process even if he or she has not actually been notified. Parliament may do so in terms that dispense with any further requirements of procedural fairness.
·Subject to the previous paragraph, if the visa holder does not receive actual notice that the cancellation process is under way, he or she will be denied procedural fairness unless the Minister or Department has taken reasonable steps to notify him or her that cancellation of the visa is under consideration and provide an opportunity to make representations as to why the visa should not be cancelled This proposition may not hold good in exceptional circumstances, for example where the visa holder has deliberately evaded attempts to notify him or her of the cancellation process.
·The fact that the Minister has taken reasonable steps to notify the visa holder will not necessarily mean that the requirements of procedural fairness have been satisfied. It appears that the requirements will not be satisfied where the Minister acts in the mistaken belief that the visa holder has in fact been notified, even if reasonable steps have been taken.
A Point not Raised
In view of the decision in Minister v George, it may have been open to Mr Karp to argue on behalf of the applicant that the Minister must have erroneously believed, at the time of the cancellation decision, that the applicant had received actual notification of the intention to consider cancelling the visa. It was obvious from the Issues Paper that the applicant had not received the third notice of 28 June 2007. However, the Issues Paper recorded that ‘Receipt of one of the Notices [of 10 January 2000] was confirmed by Australia Post on 15 January 2007’. This may have supported an inference that the Minister took the Issues Paper to imply that the applicant had received the second notice of 10 January 2007, particularly as a person not familiar with the applicant’s signature could well have read the signature as that of the applicant. But Mr Karp made no such submission.
Mr Kennett appreciated the potential difficulty for the Minister’s case if the applicant submitted that the Court should find that the Minister erroneously believed that the applicant had received the second notice. At the conclusion of his oral submissions, Mr Kennett expressly noted that the applicant had made no suggestion to this effect and that it was therefore not necessary for him to deal with the decision in Minister v George. The Minister’s submissions, like those of the applicant, proceeded on the basis that the Minister had not formed a belief that the applicant had actually received a notice warning him that consideration was to be given to cancelling his visa.
Reasonable Steps
Mr Kennett accepted that, since the applicant had not been actually notified of the cancellation process, he had been denied procedural fairness unless the Minister could show that reasonable steps had been taken to notify the applicant that the process was under way. Mr Kennett pointed out that the Minister’s acceptance of this proposition potentially left room for reg 2.55 to operate by deeming service of the notice to have been effected. However, as will be seen, Mr Kennett placed no reliance on reg 2.55 in the circumstances of this case.
The question of whether the Minister or the Department has taken reasonable steps is a question of fact, dependent upon the particular circumstances of the case. In Osborne v Minister, French J thought that sending the notice to the last address provided by the visa holder, which in fact had been his address for three months after his release, was reasonable. His Honour was fortified in that conclusion by the fact that the address was that of the visa holder’s mother and the further fact that the registered letter sent to that address had not been returned. In Minister v Ball, the Court was influenced by the absence of any alternative address for the visa holder and the failure of the visa holder’s counsel to identify any further step that the Department could reasonably and practically take to notify the visa holder that cancellation was under consideration.
In assessing the reasonableness of the Minister’s actions, it is appropriate, in my view, to take account of the serious consequences to the visa holder of a cancellation of his or her visa. Although perhaps the point is self-evident, the Full Court in Minister v George (at 145 [53]) emphasised the potentially devastating consequences of a decision to cancel the visa of a permanent resident of Australia. A useful analogy is the principle that in applying the standard of proof on the balance of probabilities, a court takes account of the seriousness of the factual issue and of the gravity of the consequences flowing from a particular adverse finding: Briginshaw v Briginshaw (1938) 60 CLR 336, at 343-344, per Latham CJ; at 362-363, per Dixon J. By parity of reasoning, the circumstances relevant to the reasonableness of the Department’s attempts to notify a visa holder include the gravity of the consequences for that person of a decision to cancel his or her visa.
In the present case, the Department made a number of attempts to notify the applicant that the Minister intended to consider cancellation of his visa, including sending the three letters to him by registered post. However, none of the three letters (5 January 2006, 10 January 2007 and 28 June 2007) was sent to an address at which the applicant was then currently residing.
Receipt of the first letter was acknowledged in writing, but the signature did not purport to be that of the applicant, as a cursory examination of the receipt would have shown. The second receipt bore a signature that was not the applicant’s, but could have been read by someone unfamiliar with his signature as indicating that he had signed the document. The Issues Paper presented to the Minister did not expressly state that the applicant had acknowledged receipt: it merely recorded that Australia Post had confirmed receipt of one of the notices. As I have explained, the case was conducted on the basis that the Minister had not formed an affirmative belief that the applicant had actually received any of the notices.
The Department took no action in relation to the applicant’s visa on the basis of the second notice of 10 January 2007. The reason for the inaction was not explained in the evidence. In any event, the Department decided that a further letter should be dispatched to the applicant before any cancellation action was taken. Accordingly, the third letter was sent to the Colour Caravan Park nearly six months later, but it was returned with a notation that the applicant had left the address. The Department made a further enquiry of Centrelink, but that was limited to asking whether the applicant had updated his address. The Issues Paper was prepared on the basis that the Colour Caravan Park was the applicant’s last known address and that he was deemed to have received the third notice of 28 June 2007. The document recorded that Centrelink had ‘confirmed once again [the applicant’s] current address’; it did not claim that the applicant was in fact living at the Colour Caravan Park.
In these circumstances, one can readily understand the desire of the Department to proceed to a decision rapidly. But to recognise this is not necessarily to conclude that the Department had taken reasonable steps to notify the applicant of the intention to give consideration to cancellation of his visa. Mr Kennett accepted that the relevant enquiry is whether the Department had taken reasonable steps to give the applicant actual notice of the intention to consider cancelling his visa.
The Department cannot be expected to make endless enquiries or to pursue avenues that are unlikely to yield any worthwhile results (such as a newspaper advertisement directed to a person living an itinerant lifestyle). Care must also be taken not to use hindsight to impose undue burdens on the Department. Nor do reasonable efforts to notify a visa holder that cancellation is being considered imply that the Department must exercise special ingenuity or expend disproportionate resources in an attempt to locate the visa holder.
In this case, however, armed with the knowledge the Department had and assuming no special foresight on its part, there were simple enquiries it could have made that would have revealed the applicant’s whereabouts. A telephone call to the Colour Caravan Park doubtless would have confirmed the applicant’s departure from that location. Of course, the enquiry would not have revealed his destination, but it would have removed any doubt as to whether the applicant was still at the Caravan Park.
In view of the applicant’s criminal record and his apparent failure to update his address with Centrelink (presumably making it more difficult to claim benefits), it must have been obvious to the Department that there was at least a realistic chance that he had been taken into custody by the police. After all, the Minister was asked to give consideration to cancelling the applicant’s visa by reason of the latter’s extensive criminal record, going back many years. In the absence of evidence to the contrary from the Minister, I would infer that it was a simple matter to enquire of the New South Wales Police (or, for that matter, the Western Australian Police) whether the applicant had been taken into custody. Indeed, in oral argument, Mr Kennett frankly acknowledged that:
‘perhaps [making such an enquiry] wouldn’t have been a difficult thing to think of’.
He did not suggest that it would have been a difficult enquiry to make.
It would be surprising if the Department did not have in place a straightforward mechanism for ascertaining whether a visa holder with a substantial criminal record is in police custody or prison at any given time. Be that as it may, where there have been difficulties in making contact with a visa holder who leads a peripatetic lifestyle, an enquiry of the relevant police or prison authorities would seem to be both a simple and inexpensive step to take. There was no evidence before me to suggest otherwise. Had this procedure been adopted, it would have avoided the unfortunate situation in which the Minister cancelled the applicant’s visa without him ever having had an opportunity to put his case to the contrary.
In my view, the evidence supports the conclusion that, in the circumstances, the Department did not take reasonable steps to notify the applicant that the Minister would consider whether to cancel his visa. Subject to the operation of reg 2.55, it follows that the applicant was denied procedural fairness and that the cancellation decision was affected by jurisdictional error.
In reaching this conclusion, I have not assumed that the Department could have readily made additional enquiries of Centrelink, for example as to whether the applicant was continuing to receive benefits and, if not, why they had stopped. The evidence did not address the nature of the additional enquiries that the Department could easily have made: cf Social Security (Administration) Act 1999 (Cth), s 208. If, however, such enquiries could have been made easily, that would add force to the conclusion I have reached.
Regulation 2.55
The Minister’s written submissions acknowledged that French J was correct in Osborne v Minister to observe that reg 2.55 does not condition the exercise of power in s 501 of the Migration Act. The Minister accepted that reg 2.55 applies, by its terms, to circumstances in which the Migration Act or the Migration Regulations require a ‘document’ to be given to a visa holder. The submissions gave s 107 of the Migration Act as an illustration of a provision to which reg 2.55 applies. Section 107 authorises the Minister to give visa holders notice of any alleged non-compliance with certain statutory provisions.
Although the Minister’s written submissions asserted that ‘the mechanism’ in reg 2.55 had been complied with, the Minister did not contend that the applicant’s claims of a denial of procedural fairness could be met by establishing that the terms of reg 2.55 had been satisfied. When the issue was referred to in oral argument, Mr Kennett confirmed that the Minister’s position was that French J had held that reg 2.55 could not apply to a notice relating to the possible exercise of the power of cancellation conferred by s 501 of the Migration Act. Accordingly, the Minister did not dispute that reg 2.55 did not apply and thus did not condition the exercise of the power of cancellation.
In the absence of any submission that the Minister is entitled to rely on reg 2.55, at least in this Court, I do not need to consider it further.
CONCLUSION
The applicant is entitled to orders quashing the cancellation decision and prohibiting the Minister from acting upon the decision. These orders will not prevent the Minister, if so advised, from reconsidering the question of cancellation of the applicant’s visa with the benefit of any submissions the applicant may care to make. The Minister must pay the applicant’s costs of the proceedings.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate:
Dated: 1 May 2008
Counsel for the Applicant: Mr L Karp Solicitor for the Applicant: Legal Aid NSW Counsel for the Respondent: Mr G R Kennett Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 21April 2008 Date of Judgment: 1 May 2008
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