Hunyh v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1270
•7 NOVEMBER 2003
FEDERAL COURT OF AUSTRALIA
Hunyh v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1270MIGRATION – judicial review of a decision to cancel a visa on character grounds – Vietnamese woman convicted of a serious criminal offence –failure to take into account mitigating factors acknowledged in sentencing remarks of New South Wales Court of Criminal Appeal as well as factors referred to by primary sentencing judge – failure to take into account relevant considerations
Migration Act 1958 (Cth), ss 501(2), (6), (7), 501G
Bond Corporation Holdings Limited v Australian Broadcasting Tribunal (1988) 84 ALR 669
Elias v Commissioner of Taxation 2002 ATC 4579
Giris Pty Limited v Federal Commissioner of Taxation (1969) 119 CLR 365
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
R v Clarke (NSWCCA, 15 March 1990, unreported)
Re Minister for Immigration & Multicultural Affairs Ex Parte Lam (2003) 77 ALJR 699
Sean Investments Pty Limited v MacKellar (1981) 38 ALR 363Trustees of the Post Office Staff Superannuation Scheme v Commission of Taxation (1999) 94 FCR 268
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
XUA THI HUNYH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N350 of 2003MADGWICK J
7 NOVEMBER 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N350 OF 2003
BETWEEN:
XUA THI HUNYH
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
MADGWICK J
DATE OF ORDER:
7 NOVEMBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The decision of the respondent of 16 October 2002 to cancel the applicant’s visa is quashed.
2.The respondent, her servants and agents are prohibited from carrying it into effect.
3.The respondent is to pay the applicant’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
N350 OF 2003
BETWEEN:
XUA THI HUNYH
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
MADGWICK J
DATE:
7 NOVEMBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HIS HONOUR:
By her amended application, the applicant seeks judicial review of a decision by the respondent (‘the Minister’) to cancel pursuant to s 501(2) of the Migration Act 1958 (Cth) (‘the Act’) the visa she holds which permits permanent residence in Australia. The Minister made his decision on 16 October 2002 and the applicant was notified of it on 4 November 2002. The applicant commenced proceedings in the High Court on 15 November 2002 and Gaudron J remitted the proceedings to this Court.
Section 501(2) provides that the Minister may cancel a visa if he or she reasonably suspects that the visa holder does not pass the ‘character test’ and that person does not satisfy the Minister that he or she passes that test. Pursuant to s 501(6) a person does not pass the character test if that person has a substantial criminal record as defined by subs (7) or, having regard to the person’s criminal conduct, that person is not of good character. Under subs (7) a person has a ‘substantial criminal record’ if he or she has been sentenced to a term of imprisonment for twelve months or more.
As the decision was made by the Minister personally, it is not reviewable by the Administrative Appeals Tribunal: c.f. s 500(1)(b) nor is it reviewable under either Part 5 or Part 7 of the Act: s 500(4)(b). As such it is not a primary decision as defined in s 476(6) of the Act and the jurisdiction of this Court is not excluded by s 476. The decision is, however, a privative clause decision as defined in s 474, unless the applicant is able to demonstrate that the decision involved jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (‘Plaintiff S157’). In determining whether the Tribunal made a jurisdictional error, regard must be had to s 474 in the way described by the High Court in Plaintiff S157, especially at [21], [26], [60], and [76]-[77].
The applicant’s circumstances
The applicant was a Vietnamese national who was born on 24 April 1952 in Vietnam. She is the mother of six children in their twenties and thirties and has nine grandchildren. All of these people live in Australia. Her former husband (‘the husband’), whom she married in Vietnam when she was 15 years of age, escaped with the applicant’s and his two eldest sons in 1978, leaving the applicant behind with the other four children. The husband and those two boys came to Australia in 1982 as refugees.
Soon after coming to Australia, the husband entered into a de facto relationship with another woman and thereafter took little interest in such of his family as remained in Vietnam; indeed, he provided little in the way of care for the two sons whom he had brought to Australia. The eldest son visited Vietnam in 1989 and was impressed with how hard his mother’s life was, looking after the four younger children and also her parents. He prevailed on his father to ‘sponsor’ the rest of the family to come to Australia, which they did in 1992. The applicant and her husband lived together for a short period but parted for the purposes of divorce in July 1993. A couple of weeks later the applicant discovered that her eldest son was, and had been for some time, a confirmed heroin user. Naturally, she was much distressed by this and apparently continued to be so.
In June 1998, the applicant was convicted and fined for being in possession of goods reasonably suspected of having been stolen and, in May 1999, she was similarly dealt with for offences committed in August 1998 of resisting an officer in the execution of duty, being in possession of goods reasonably suspected of being stolen and of being in possession of a prohibited drug. On 24 August 1999, the applicant and her son were arrested and charged with supplying heroin.
On 15 March 2000, after, as Tupman DCJ put it, the matter had been before the District Court of NSW ‘on several occasions for mention during the course of which negotiations were conducted between the representatives for [that son] and the Crown’, the son pleaded guilty to the charge against him and the applicant pleaded not guilty. As her Honour said:
‘It was indicated to me at the time that, as a result of that combination of factors, the Crown would be entertaining an application on behalf of the prisoner’s mother to take no further proceedings in relation to the charge against her. Although, as I understand it, that has not yet been finalised, it is anticipated by all the parties that that is the course that will be taken’.
Her Honour sentenced the son to a term of imprisonment of two years with a non-parole period of nine months and two days. The effect was his conditional release upon the day that Judge Tupman dealt with him.
Trial judge’s approach to sentencing
On 30 August 2000, after a trial by judge alone, Acting Judge Woods QC, as his Honour then was, found the applicant guilty of statutory supply of a prohibited drug, in that she had in her possession an amount of heroin which was not less than the ‘trafficable quantity’ of such drug. She had been apprehended in a motor vehicle with a package containing thirty six ‘hits’ of heroin encased in balloons. Police officers had observed her son apparently to supply drugs to a known addict in the street nearby and had followed him back to the vehicle. His Honour found that it was clear that the applicant knew what she had in her possession and the implications because, when apprehended, she tried to discard the incriminating bundle. His Honour found that she had always had a package of thirty of the thirty six balloons on her person, a smaller package having been thrown to her by her son as he was extracted from the vehicle.
Relevantly, for present purposes, his Honour recounted that she was ‘in receipt of a sickness benefit’; and
‘There are medical reports from Dr [Le]; … and also a Dr Davies and generally they note hypertension, panic attacks, insomnia, depression, rheumatism, high blood pressure and extreme stress. There does not seem to be any record of any regular medical attention on some regular basis. The medical attention seems to date only from last year when apparently you may have been involved in a motor vehicle accident in May and then of course … you were arrested for this charge in August last year.’
His Honour later continued:
‘The average sentence for an offence like this is around two years imprisonment. I am asked to consider that there are special circumstances and in particular I am asked to consider a suspended sentence. The special circumstances are the leniency given to your son; the fact that you have not served any period of imprisonment …; that your whole lifestyle is a difficult one in view of the way you have come to Australia and you have been living in social isolation because of your lack of skills and language problems and also in particular your medical and psychological problems.
In connection with the medical and psychological problems I must recognise that any corrective [institution] would have appropriate medical and psychological assistance that would be necessary so I am not satisfied that there are any special medical [and/or] psychological reasons why you cannot serve a term of imprisonment. One wonders in actual fact whether you would have just as many psychological problems with a sentence of imprisonment hanging over your head in a suspended sentence. I find there is nothing exceptional in any of the above problems or nothing special or exceptional in your circumstances. Of course gaol may aggravate stress …
So considering your circumstances and the history of the matter I cannot find any special circumstances to consider anything but what the law demands.’
The judge also said in a relevant passage:
‘… you have been found guilty of knowingly having a quantity of heroin and the implication is that it was for sale on the street. This is clearly a very serious criminal offence, this cannot be an accident or an error of judgment. This is the deliberate involvement in the supplying of a substance into our community which is causing so much distress and danger to lives therefore anyone involved in any way in the peddling of such dangerous drugs in the streets must be dealt with by the full force of the law. There is no place in our community for anyone so involved …
This was not a matter of heroin for your own personal use, it was clearly for sale to persons on the street.’
His Honour went on to impose a sentence of two years’ imprisonment from 10 November 2000 with a non-parole period of sixteen months. In New South Wales the statutory prima facie proportion of the head sentence for a non-parole period is 75%: s 44 Crimes (Sentencing Procedure) Act1999 (NSW).
Appellate intervention
The applicant appealed to the NSW Court of Criminal Appeal (‘the CCA’) which on 29 June 2001 gave her leave to appeal, confirmed the head sentence and reduced the non-parole period to twelve months, submissions on the appeal having been confined to the non-parole period. The CCA noted that the statutory concept for departure from the prima facie ratio of the non-parole period to the head sentence was that of ‘special circumstances’ whereas in R v Clarke (NSWCCA, 15 March 1990, unreported) it had been held that a concept of ‘exceptional circumstances’ needed to exist before a non-custodial sentence would be appropriate for a drug trafficker. It was unclear whether the primary judge had erred as to those two concepts and, if he had found that there were no statutory ‘special circumstances’, then there was a mathematical error: the statutory ratio would have called for a non-parole period of eighteen months rather than the sixteen months which his Honour had specified. The CCA, in the circumstances, was minded to grant leave to appeal and to consider ‘special circumstances’ for itself. The CCA continued:
‘… It must be accepted that the offence was serious in that the applicant was involved in the deemed supply of heroin and was actively assisting her son in that regard.
It is not the case, as distinct from the position with her son, that she was a user/dealer, but it may be accepted that she was engaged in this activity for the purpose of assisting him. He had his own problems in that regard, arising from a long-standing addiction to heroin and from the fact that the family was living in straitened circumstances with some financial commitments. The important considerations, however, which do arise concerning the applicant, relate to her deprived and difficult background, and to the medical sequelae arising from that background, and from a motor vehicle accident in which she had been involved shortly prior to the offence.
The evidence suggests, in this regard, that she had been born into a rural family environment in Vietnam where she had received no formal education.
She had been left by her husband, whom she married in 1967, when he escaped with two of their six children in 1979. When she eventually made her way to Australia in 1992 she was rejected by him as by then he had formed another relationship. She was divorced the following year and was left without financial support.
Thereafter, by reason of her limited ability with the English language and her lack of education, she had been unable to obtain employment and, as a result, had been suffering from anxiety and a depressive disorder. Additionally, she
suffered from conditions of hypertension and arthritis as well as the sequelae of a whiplash injury sustained in the motor vehicle accident. She was at the time of the offence in receipt of sickness benefits.
Some material was placed before his Honour concerning her medical condition. This comprised a report from Dr Gordon Davies, a forensic and general psychiatrist, and also from Dr Thi Le-Anh, a general practitioner.
In Dr Davies' opinion, she suffered from “post concussive symptoms following her motor vehicle accident” which had been “superimposed on an underlaying chronic dysthymic illness which fundamentally relates to her difficult childhood and subsequent family problems”. Dr Davies thought it important that the applicant receive adequate psychiatric treatment on an ongoing basis, preferably by a Vietnamese speaking psychiatrist. He also thought it would be useful for this to be supported by the Probation and Parole Service.
Dr Thi Le-Anh [this is the Dr Le referred to by Judge Woods] dealt with the physical disabilities of the applicant relating to the conditions of hypertension, arthritis, peptic ulcer, and the post-concussive motor vehicle accident condition. In his opinion those health problems would be aggravated by her presence within a custodial situation, and that situation, he thought, would be detrimental to her already poor health.
The material placed before his Honour was taken into account but his Honour was not satisfied that they constituted special circumstances. It would appear in this regard that his Honour thought that any disabilities relating to her physical and mental state could be satisfactorily dealt with within the prison medical health system.
The evidence in this regard has been supplemented by a further report placed before the Court this morning from Dr Dong B Tran, a Vietnamese speaking general and forensic psychiatrist. His somewhat more comprehensive report confirms the significance of the matters placed before his Honour which Dr Dong Tran assessed as amounting to a “major depressive disorder, complicated by both unstable general medical conditions and multiple psycho social stressors”. He thought that she was “particularly vulnerable to the impact of custody and at risk of further psychiatric decompensation”.
Of particular concern, he noted, was the potential given her propensity to use avoidance as a coping mechanism and her inability to speak English, for deterioration in her medical and/or psychiatric conditions to go unnoticed. It was his opinion that her health could be “further compromised as a result of her remaining in custody”.
There were matters properly to the exercise of sentencing discretion since they were such as to visit exceptional hardship upon her while in custody, and were also such as to justify an extended period of rehabilitation post release.’
The CCA accordingly considered that there were ‘special circumstances’ warranting an adjustment in the ratio between the non-parole period specified below and the head sentence. The court directed the applicant’s release on parole at the expiration of the new and reduced non-parole period which expired on 9 November 2001.
Invitation to applicant to put her case
The respondent’s department advised the applicant by a letter dated 22 August 2002 that he was considering the cancellation of her visa under s 501(2) of the Act. The letter indicated:
‘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 history. …
·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 … I have included a copy of this Direction.
In preparing your comments please read fully and carefully the contents of the Minister’s Direction. You should address each and every topic that you feel applies to you and is relevant to your circumstances.
I have attached a standard questionnaire which you may wish to use as a guide in providing your response. You may also wish to provide any further information in written form that you feel the Minister ought to be aware of and take in to account.
…’ (emphasis in the original)The applicant responded, evidently without the aid of a legal adviser or even a migration agent. I would infer that members of her family helped her. The material is largely in handwriting and apparently from more than one hand. Foolishly (even if, beyond the bounds of reasonable possibility, it might be true), the applicant continued to assert her innocence: she said that, in effect, she was staying close by the side of her addicted son to look after him; and ‘I was in the wrong place at the wrong time’ and ‘despite my conviction I still felt I had not done anything wrong’. She otherwise mentioned that she accepted the court decision and complied with it satisfactorily; that she would not re-offend in future; she had no close relatives in Vietnam who could afford to ‘care for and support me in my current health situation’; that it would be very hard for her emotionally to be separated from her family whom she was used to seeing on a daily basis; and ‘I don’t know if I would cope. I have a current health condition that I am getting regular treatments in Sydney Australia (attached doctor Cert.) If I am deported to Vietnam I could not survive due to the lack of medical and medication expertise’.
By decision dated 16 October 2002, the Minister purported to cancel the applicant’s visa under s 501(2) of the Act. The decision was endorsed on a memorandum to the Minister from a departmental officer. The officer had annexed to the memorandum a copy of Acting Judge Woods’ comments and quoted from it. He also annexed documents being a number of personal letters and testimonials from family and friends in support of the applicant’s remaining in Australia.
The Minister’s reasons
The decision of the High Court in Re Minister for Immigration and Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56 was to the effect that a similar endorsement on a departmental officer’s memorandum did not amount to a discharge of the Minister’s duty under s 501G of the Act to give the affected person:
‘… a written notice that:
…(e)sets out the reasons (other than non-disclosable information) for the decision’.
After that decision was given, the Minister, on 1 July 2003, provided a statement of reasons for his decision to the applicant’s solicitor in the current proceedings. In that statement the Minister:
·recited the relevant provisions of the Act;
·indicated that he had taken into account the departmental memorandum and all of the annexures to it;
·explained that by reason of her convictions the applicant did not pass the ‘character test’ set up by s 501(6) and (7);
·indicated that the Minister had proceeded in accordance with his own General Direction No 21 and accordingly ‘I gave primary consideration to the protection of the Australian community and the expectations of the Australian community. I then went on to consider other considerations in relation to [the applicant]’;
·stated, under the subheading ‘seriousness and nature of conduct’:
‘[12] Paragraph 2.6 of the Direction states:
It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
·persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;
·the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
·offences involving illicit drugs of dependency or addition, such as heroin, are also of particular concern to the Government and the community;
[13]Ms Huynh’s offence is listed as a very serious offence under the Direction.
[14]On 10 November 2002 when passing sentence at Campbelltown District Court, Judge Woods, stated the following:
‘…On the day in question you were apprehended in a motor vehicle with a package containing thirty six balloon objects being apparently separate hits of heroin ready for sale on the street.
When apprehended you were in the company of another person who is your son who was separately apprehended and charged. The circumstances of the apprehension were that the police had noticed the activities of your son in the street nearby and had followed him to the vehicle where you were sitting.
It was clear following the evidence that you knew what you had in your possession and knew the implications because when apprehended you did try to discard the incriminating bundle as this action was seen by the apprehending police as noted in my judgment following the trial. It is of some concern to me that at the trial before me it was suggested that the incriminating package of the thirty six balloons together with a smaller package of five balloons was merely tossed across to the prisoner by the son as he was being taken from the vehicle and that the prisoner had no real possession of the package for the purposes of the Act.
However it is now clear from the judgment on the sentence of the son that the evidence as agreed at trial of the son was that merely one package had been tossed across to the prisoner, that being the package of five balloons which it was suggested the son had been carrying around the street. Therefore my finding that the prisoner had always had the package of thirty balloons on her person was always the correct circumstance.’
A copy of the Judges Comments for Ms Huynh is at Annex F.
[15] Paragraph 2.7 states:
It is the government’s view that the sentence imposed for a crime is an indication of the seriousness of the offender’s conduct against the community. Decision-makers should have due regard to the Government’s view in this respect, including:
(a)the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
(b)the repugnance of the crime:
·crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.’
·found that there was ‘a medium risk of recidivism and I placed moderate weight on this consideration’;
·placed little weight on the consideration of deterrence to others;
·gave primary consideration to the expectations of the Australian community and indicated:
‘21. In view of the seriousness of Ms Huynh’s offences, I believe that the Australian community would expect Ms Huynh’s visa to be cancelled and her to be removed from Australia. Overall I placed substantial weight on this consideration.’
·under the heading ‘Other considerations’, expressed the view that her ‘children and grandchildren would suffer emotional hardship and [the applicant’s] relationship with her children may be adversely affected if she were removed from Australia’;
·considered that ‘she would have community links and some support in Vietnam if she were removed from Australia’;
·stated, as to her medical condition:
‘25. I took into account Ms Huynh’s medical condition and I noted that she was on a sickness benefit at the time of my decision. I found it reasonable to assume that medical services in Vietnam are not comparable to that of Australia. However, I noted Ms Huynh’s doctor’s claims that she suffers from depression partly as a result of her broken marriage and being upset with her children. As such, there was no indication that her condition is of a serious nature that requires long term treatment. I also noted that in a medical certificate provided to Centrelink, Ms Huynh was assessed to be able to undertake any work for eight hours per week. I gave moderate weight to this for consideration.’;
·and concluded in the following terms:
‘27. In reaching my decision, I concluded that the seriousness of Ms Huynh’s crime, the disruption these crimes had caused others, and the expectations of the Australian community, outweighed all other considerations above.
28. In the circumstances I exercised my discretion to cancel the visa under s 501(2)’.
The case for the applicant
The applicant submitted that the Minister had failed to take into account a number of relevant considerations including:
·the circumstances of the sentence imposed upon the applicant’s son by Judge Tupman;
·that a/Judge Woods’ sentence was partially reduced by the CCA;
·that the CCA had found that there were ‘special circumstances’ so as to justify treatment of the applicant which was both more lenient than the usual minimum proportion of the head sentence to be served in actual custody and also more lenient than a/Judge Woods had thought appropriate;
·the further evidence that was placed before the CCA; and
·the comments of the CCA when sentencing the applicant.
The submission that the respondent did not have regard to the fact of reduction of the non-parole period by the CCA is mistaken. The Minister shortly mentioned that fact in para 7 of his reasons for decision.
Respondent’s answers
As to the other particular matters, counsel for the respondent submits that the circumstances of the sentencing of the applicant’s son by Judge Tupman ‘are of limited or no significance to the exercise of the respondent’s discretion’ and that the Minister had had regard to what a/Judge Woods said on this subject. The substance of the matters found to amount to ‘special circumstances’ was set out in a/Judge Woods’ remarks on sentence, to which the Minister said he had had regard. The further evidence was a report of Dr Tran. However the respondent had had regard to the applicant’s medical condition and the applicant had had the opportunity to put that report to the Minister if she had wanted him to take its contents into account. The only comments made by the CCA that might have assisted the applicant concerned her background and medical condition. The respondent had in fact taken into account her medical condition. The applicant had not availed herself of the opportunity that she had had to provide the CCA judgment to the Minister if she had regarded its contents as significant.
More generally, the Minister says by counsel that the discretion under s 501(2) is of the kind considered in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40, namely broad and unconfined and not subject to any express limitation or constraint. As such, the factors which may be taken into account by the decision-maker are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the legitimate range of such factors. Further, in such a case, it is largely for the decision-maker having regard to the material before him or her to determine what matters are to be regarded as relevant and the weight to be given to them: Sean Investments Pty Limited v MacKellar (1981) 38 ALR 363 at 375; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40-41; Bond Corporation Holdings Limited v Australian Broadcasting Tribunal (1988) 84 ALR 669; Trustees of the Post Office Staff Superannuation Scheme v Commission of Taxation (1999) 94 FCR 268; Elias v Commissioner of Taxation 2002 ATC 4579 at [56]-[57]; 2002 ATC 4761 at [53], [78]-[79]; Giris Pty Limited v Federal Commissioner of Taxation (1969) 119 CLR 365. There can be no jurisdictional error in failing to take into account a consideration unless that consideration is one that the respondent is bound, as a matter of statutory construction, to take into account. None of the matters or documents asserted by the applicant as not having been taken into account was so required to be brought into consideration.
Further, each matter or document now relied on by the applicant was peculiarly within the applicant’s own knowledge or possession and she had been given the opportunity to put them before the Minister and comment on their significance. The Minister was entitled to make his decision on the material before him.
Finally, the various matters relied on and each of them were, in the circumstances, of such limited significance that failure to take them into account could not materially have affected the Minister’s decision. In consequence, the Court would not be justified in setting aside the Minister’s decision and in effect requiring that it be reconsidered on that basis.
Applicant’s reply
To these submissions the applicant replied that everything complained of by the applicant was adverted to in the CCA judgment. Most people, lawyers included, would have failed to appreciate the significance of the punctuation in the reference to ‘the Judge’s comments’ in the departmental letter which told the applicant that such comments would be taken into account and would have assumed that the Minister had the CCA’s reasons before him, as well as those of Woods a/DCJ. There was thus both no reason for the applicant to have put before the Minister the materials referred to and, in the circumstances, a denial to her of the opportunity to put such materials before the Minister.
To this, the Minister rejoined that there was no evidence before the court that the applicant by herself or those assisting her had understood that the CCA judgment would be before the Minister or that the applicant would have acted differently had she known it was not.
Conclusions
Much of the general submissions made on behalf of the respondent is, in my opinion, correct. However, it seems to me that neither those submissions nor the more particular submissions adequately meet the applicant’s case.
Section 501 applies to visas of all kinds. The condition enabling the Minister to act is the combination of:
(i)his/her reasonable suspicion that the visa holder is not of good character (s 501(6)(c)) or, in other ways defined in s 501(6), is of statutorily impaired character; and
(ii)the visa holder’s failure to satisfy the Minister that the person passes that character test.
The Minister is empowered to exercise a broad discretion once that condition is satisfied. However, the nature of the condition clearly implies (what is also obvious from the subject matter and context) that the extent and degree to which the visa holder falls short of statutory good character is a prime matter for the Minister to take into account in considering how to exercise the discretion, as is the degree and extent of any hardship to the applicant and/or any family member lawfully resident in Australia. Where, as here, the possession of a ‘substantial criminal record’ is the manner in which the visa holder does not pass the character test, it is necessarily the case that the circumstances surrounding the crimes concerned and the imposition of sentences for those crimes will be a highly relevant consideration. The usual main source of information is the reasons for sentence of the sentencing court.
Where an appeal against sentence is heard by an appellate court, it is well-known in legal, administrative and legislative circles that almost always that court will examine and evaluate the facts of and surrounding the crime or crimes in question. That is also the case even where an appeal or application for leave to appeal against sentence is dismissed. It would therefore be for the Minister to shut his/her eyes to relevant or potentially relevant considerations not to have regard to such reasons given by an appellate court. As a practical matter, the Minister will understandably depend on the departmental officer providing the briefing papers. It is therefore of great importance that such officer should obtain, read, and at least inform the Minister of the gravamen of, the reasons of the appellate court as well as of the primary sentencing judge.
It is also clear, as a matter of statutory construction, which must commence with an appreciation of the context and purposes of the relevant legislation, that the Minister must make reasonable inquiry about all the circumstances of the visa holder and family members who might be affected. Where the visa is one allowing permanent residence and it is obvious, as here, that great emotional hardship would ensue to the visa holder and her family if she were deported, that will clearly affect what would be reasonable inquiry in the circumstances. It is, to my mind, inconceivable that any different intention should be ascribed to Parliament, absent the clearest express words.
Further, whether considerations or material are relevant in the jurisdictional sense is not necessarily confined to a consideration of whether they are directly relevant to the ultimate question for consideration. If the decision-maker’s duty is to make, or see that there is made, a degree of inquiry about a matter, material may be ‘relevant’ if it could reasonably bear upon process decisions about whether to inquiry further, and into what, for the purpose of assisting in the decision about that ultimate question.
The judgments of multi-member appellate courts dealing with the relevant criminality exhibited by a visa holder are, generally, readily available. They almost certainly will contain the kinds of findings and assessments I have referred to, and they will very possibly contain summaries of evidentiary material either not before, or not summarised at all or adequately by, the sentencer of first instance. In these notoriously well-known circumstances, it seems to me that such a judgment is or may be itself a relevant consideration or will so likely refer to relevant considerations that failure to have regard to the judgment should be regarded as a failure to have regard to any relevant consideration that is in fact referred to in the judgment but not elsewhere in the material before the Minister.
In addition, it is not enough that the Minister should merely advert to a relevant topic, for example, the subject person’s medical condition, without considering any further pertinent information about that topic which perusal of the appellate court’s judgment would disclose.
Here, the Minister was not informed of the appellate court’s appreciation of the matter, nor of some further, clarifying medical evidence put before the CCA. The impression that the material sent to the Minister consequently gives, under cover of that silence, is that on factual and evaluative matters the CCA had no material difference of approach from that of a/Judge Woods and that his Honour’s remarks were effectively the last judicial word on the applicant’s culpability for her crime and on mitigatory factors subjective to her. But that was not the case.
It is clear that the CCA accepted that there were three factors which mitigated, to some degree, the overall criminality exhibited by the applicant. These were that:
·the applicant’s medical condition was, in the light of the additional evidence received by the CCA, rather more serious and fraught with danger of deterioration than the primary judge had thought; and
·the applicant had had a background fairly described as ‘deprived and difficult’;
·although the CCA considered it a less important factor, the applicant had engaged in the heroin supply not coolly for profit but for the purpose of assisting her drug-addicted son, who was himself deserving of a measure of sympathy.
The applicant’s crime was certainly serious. On the other hand, it would appear to involve great hardship to her and her family to banish a sick mother from the society of all of her children and grandchildren. It cannot, in my opinion, safely be said that any of the factors thought important by the CCA, let alone the combination of some or all of them, might not possibly have affected the Minister’s ultimate determination of the difficult question that he faced. The departmental submission to the Minister and the unclosed remarks on sentencing of a/Judge Woods had not recounted some material aspects of the applicant’s background, warranting the CCA’s description of it as deprived and difficult. The medical condition of and outlook for the applicant, as described to and by the CCA, appeared rather more serious than the material before the Minister indicated: there were more medical conditions and the implications of the applicant’s psychiatric condition(s) were considerably more worrying then the Minister was ever told. The Minister acknowledged that ‘medical services in Vietnam are not comparable’ to those in Australia. Finally, that the applicant had committed her crime in an auxiliary capacity to her son rather than as an equal director of the criminal enterprise could have been regarded as some reduction in the degree of her criminality which either might have tipped or helped to tip the scales in her favour.
The CCA judgment might at least, have caused the Minister to desire further inquiries. The Minister might, possibly, for example, have considered that the applicant’s risk of recidivism would be reduced to very little if her eldest son had been rehabilitated, a subject on which the papers before the Minister (and the CCA judgment) were silent. Again, the Minister might have been moved to find out more about the son’s relatively lenient sentence, in which case he would have been led to understand the unfortunate way in which the applicant and her son had, for a time, been encouraged to believe that the son’s plea of guilty might, as it were, also wipe clean the slate for his mother. That matter could possibly have weighed with the Minister on the question of hardship.
Thus, in my opinion, the Minister failed to have regard to relevant considerations. Applying the Plaintiff S157 test of looking at the Act as a whole to determine whether a procedural or other error should be regarded as jurisdictional, and bearing in mind the potential of decisions to cancel visas to have catastrophic consequences for the visa holder and his or her family, it seems to me that such a failure is a jurisdictional one which vitiates the decision. Section 474 does not, therefore, prevent the Court from relieving against that failure. Nor do I see any adequate discretionary reason for not doing so.
Thus, in the way I approach the matter, there is no need to consider whether the applicant was not, in the circumstances, given an adequate and reasonable opportunity to be heard. However, it is not the case that there must always be direct or even any evidence before the Court that, in effect, a person so denied would have used a proper opportunity by putting more material before the decision maker than was done in the absence of that opportunity: see WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171,
explaining Re Minister for Immigration & Multicultural Affairs; Ex Parte Lam (2003) 77 ALJR 699.Disposition
For these reasons, the decision of the erstwhile Minister will be quashed and the present Minister, her servants and agents will be prohibited from giving effect to it.
It would of course be open to the Minister to reconsider the question of cancellation of the applicant’s visa according to law.
The respondent is to pay the applicant’s costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate:
Dated: 7 November 2003
Counsel for the Applicant: Mr Poynder Solicitor for the Applicant: Anne O’Donoghue & Associates Counsel for the Respondent: Mr Wigney Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 November 2003 Date of Judgment: 7 November 2003
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