Lal v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 737
•11 JUNE 2004
FEDERAL COURT OF AUSTRALIA
Lal v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 737
MIGRATION – cancellation of visa on ground of non-satisfaction of character test – lengthy criminal record – all material circumstances taken into account – no misstatement of relevant discretion – recommendation as to reconsideration of events subject to decision in light of subsequent circumstances
Migration Act 1958 (Cth) ss 499, 501(2), (6) and (7), 501G(1)(e)
Shaw v Minister for Immigration and Multicultural Affairs (2004) 203 ALR 143
Minister of State for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273
Minister for Immigration and Multicultural Affairs v W157/00A (2003) 72 ALD 49
Long v Minister for Immigration and Multicultural Affairs (2003) 76 ALD 610
Minister for Immigration and Multicultural Affairs v Thiyagarjah (2000) 199 CLR 343SAMSON ROBINESH LAL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1436 OF 2002
CONTI J
11 JUNE 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1436 OF 2002
BETWEEN:
SAMSON ROBINESH LAL
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
11 JUNE 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. Application be dismissed.
2. The applicant to pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1436 OF 2002
BETWEEN:
SAMSON ROBINESH LAL
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
CONTI J
DATE:
11 JUNE 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Background circumstances
The applicant, who was born in Fiji on 20 March 1972, seeks by his amended application filed in Court on 18 March 2004 prerogative relief by way of prohibition, and of so-called interlocutory orders, to prevent his removal from Australia by the Minister, and also prerogative relief by way of certiorari in order to quash the Minister’s decision made on 3 December 2002 to the effect that the applicant’s permanent visa be cancelled pursuant to s 501(2) of the Migration Act 1958 (Cth) (‘the Act’).
In support of those claims for relief, the applicant framed the following points of claim:
(i)the applicant was denied procedural fairness by not being given the delegate’s submission upon which the Minister based his decision, in order that the applicant could comment upon the submission before the Minister made his decision;
(ii)the applicant was denied procedural fairness by not being provided with any judgment of the Court upon which the Minister relied in making his decision;
(iii)the applicant was denied procedural fairness by being mislead as to the nature of the case which he had to answer, in connection with his convictions upon which the Minister was relying, in order for the Minister to make his decision;
(iv)the Minister did not comply with s 501G(1)(e) of the Act, which relates to the giving of reasons for a decision to cancel a visa to a person if the Minister reasonably suspected that the person did not pass the character test, or did not satisfy the Minister that the person passes the character test;
(v)the submission to the Minister misstated the relevant discretion as one being to permit the applicant to remain in Australia, rather than as one being to cancel the applicant’s visa and thereby require him to leave Australia;
(vi)in determining whether the Minister should exercise a discretion not to cancel the applicant’s visa, the Minister failed to take into account the fact of there being ‘general deterrence’ in the sentencing of the applicant; moreover in further considering ‘the need for general deterrence’, the Minister in effect exposed the applicant to the likelihood of double punishment;
(vii)the Minister had not considered the best interests of the applicant’s child as a primary consideration in making the decision; and
(viii)the decision was unreasonable.
The limited extent to which these somewhat ambitiously framed grounds of application for review were pursued at the hearing appear in my reasons for judgment.
The relevant provisions of s 501 of the Act, upon which the application focused in the course of submissions, are set out below:
‘…
(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.
…
(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
…
(c) having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
…
(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; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
…’
The terms of the Minister’s decision of 3 December 2002 sought to be impugned were to the effect that having considered all relevant matters, being matters relevant to the exercise of the discretion to cancel a visa pursuant to s 501 of the Act, including an assessment of the character test as defined by sub-section (6) thereof, and the Minister’s directions made under s 499 of the Act in order to guide the exercise of that discretion, together with ‘Mr Lal’s comments’ which had been provided, the Minister had determined as follows:
‘I reasonably suspect that Mr Lal does not pass the character test and Mr Lal has not satisfied me that he passes the character test… I have decided to exercise my discretion under section 501(2) of the Act to cancel the visa, so I hereby cancel the visa.’
The expression of the Minister’s decision appeared at the conclusion of a 16 page document bearing date 3 December 2002 and headed ‘Issues for Consideration of Possible Cancellation of Transitional (Permanent) Visa under s 501(2) of the Migration Act 1958’, which had been prepared by the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) at a time when Mr Lal was in gaol in the Goulburn Correctional Centre. By then Mr Lal had a known early release date from gaol of 14 December 2002. The Minister personally signed the document.
The Minister’s issues document contained the following earlier material in relation to the applicant, comprising Mr Lal’s history of residence in Australia, and in particular his criminal convictions under the sub-heading ‘Reasonable Suspicion’:
(i)he arrived in Australia on 9 June 1985 on a visitor visa and was granted a temporary entry permit valid to 8 July 1985;
(ii)he was granted permanent residence on 1 December 1988, and had not departed Australia since his arrival;
(iii)his permanent visa was deemed to continue to be in effect on and after 1 September 1994, under the Migration Reform (Transitional provisions) Regulations, as a Transitional (Permanent) Visa;
(iv)on 15 December 1994 at Campbelltown Local Court, Mr Lal was convicted of the following so-called s 501(7)(c) offences, namely steal motor vehicle; attempt to steal motor vehicle; drive whilst disqualified; drive in a manner dangerous; malicious damage; and assault police; he was sentenced in relation to the first and second charges to two years gaol, with a non-parole period of 18 months, and in relation to the third to sixth charges, he was further sentenced to 6 months’ gaol on each other charge;
(v)on 21 December 1995, the Minister’s delegate decided not to order the deportation of Mr Lal, but that he be issued with a warning on 10 January 1996, pursuant to s 200 of the Act, in relation to his conviction for the above offences;
(vi)on 13 August 1998, Mr Lal was convicted of take and drive conveyance at Campbelltown District Court of Appeal, for which he was sentenced to 1 year 4 months gaol, with a non-parole period of 12 months dated from 28 May 1998. Mr Lal was then placed in Goulburn Correctional Centre, his earliest known release date being 14 December 2002;
(vii)on 19 March 1999, the Minister’s delegate again decided not to order the deportation of Mr Lal, but that he be issued with a further warning pursuant to s 200 of the Act in relation to his conviction for the par (vi) offence above; subsequently on 23 March 1999, Mr Lal acknowledged receipt of that warning; and
(viii)Mr Lal had also sustained the following further convictions and received the following sentences, being additional to those described in (iv) and (vi) above, being so-called s 501(7)(c) offences, particularised as follows:
(a) 24 June 1992 at Campbelltown Local Court: attempt steal motor vehicle (1 year 3 months with non-parole period of 12 months); and break, enter and steal (2 year 3 months with non-parole period of 12 months);
(b) 29 July 1997 at District Court of Appeal Liverpool: steal motor vehicle (1 year 3 months with non-parole period of 7 months); and have/possess implement (4 months);
(c) 11 August 2000 at District Court of Campbelltown: take and drive conveyance (12 months with non-parole period of 3 months); possess implements to steal motor vehicle (12 months with non-parole period of 3 months); and drive whilst disqualified (12 months with non-parole period of 3 months);
(d) 1 February 2001 at Local Court of Liverpool: drive whilst disqualified (12 months with non-parole period of 4 months); and drive vehicle furiously/recklessly (12 months with non-parole period of 4 months); and
(e) 30 August 2002 at District Court of Appeal at Campbelltown : assault police (3 years 6 months, with non-parole period of 16 months); take and drive conveyance (14 months); steal motor vehicle (15 months); possess implement enter conveyance (5 months); drive whilst disqualified (5 months); and goods in custody (3 months).
Thereafter that 16 page Departmental document signed by the Minister stated that as a consequence, it was open to the Minister to find that the applicant had a substantial criminal record under s 507(1)(c) of the Act, and further that on the basis of the above stated convictions, there was a reasonable suspicion that Mr Lal did not pass the character test, since he had been sentenced to a term of imprisonment of 12 months or more (and the total of 2 or more of those terms of imprisonment was 2 years or more).
The 16 page Departmental document thereafter set out under the heading ‘Discretion’ the following:
(i)if the Minister was to be satisfied that Mr Lal did not pass the character test, he must consider the exercise of his discretion to decide whether Mr Lal should be permitted to remain in Australia, being the discretion conferred by s 501 of the Act;
(ii)the Minister had a discretion under s 501 to cancel Mr Lal’s visa;
(iii)the Minister had issued directions under s 499 to guide delegates and the Administrative Appeals Tribunal in the exercise of that decision;
(iv)the Minister was not bound by his (earlier) s 499 directions, and that in making a decision in relation to Mr Lal, it was open to the Minister to be guided by the factors set out in the directions of the Minister made pursuant to s 499 of the Act, though in balancing the relevant factors in the present case, the Minister was free to place whatever weight he regarded as appropriate in relation to those factors;
(v)Mr Lal had been notified at the Goulburn Correctional Centre on 3 October 2002 by Departmental letter of the intention to consider cancellation of the visa held by him pursuant to s 501 of the Act; the cancellation grounds had been set out in that letter, and Mr Lal had been invited thereby to submit any comment that he believed to be relevant to any consideration of the issue of the visa cancellation; and
(vi)Mr Lal had first responded by letter received by the Department on 22 October 2002, and further documents had been received from him by the Department on 24 October and 1 November 2002; on 21 and 24 October 2002, supporting documents had also been received by the Department from Mr Lal’s family, including a letter written by Mr Lal to his mother during one of his terms of incarceration, a letter from his young daughter and a letter from the Holy Trinity Anglican Church of Glenfield (with supporting documents).
Under the heading ‘Primary Considerations’ contained in the above Departmental document, a body of material was next set out and/or enclosed in relation to the following subjects or headings:
(i)the very serious nature of Mr Lal’s offences for which he has been convicted;
(ii)Mr Lal’s statement by way of mitigation that he committed the offences because: he had an abusive and unstable background; he was subjected to physical and emotional abuse; and the use of drugs;
(iii)the likelihood that Mr Lal’s criminal conduct may be repeated; in assessing the risk of recidivism, reference was made to the warning issued by the Department to him on 21 December 1995, and subsequently again on 19 March 1999;
(iv)Mr Lal’s two deportation submissions made in 1999 and the outcome of earlier departmental interviews on 10 October 1995 and 22 October 1998 (at the former interview he had claimed that he needed to look after his mother who was unwell, and who additionally had the responsibility of his young daughter, and at the latter interview he claimed that it was his problems with his wife’s family at the time that caused him to overdose himself with heroin; nevertheless he claimed that he had been arrested for a crime he claimed he did not actually commit);
(v)Mr Lal’s admissions as to drug-taking;
(vi)certain psychologists’ reports of 27 August 2002 and 22 October 2002 (which were cited at some length) and Mr Lal’s response of 24 October 2002;
(vii) Mr Lal’s claims that he had never actually stolen a motor vehicle, that he had learnt from his past mistakes, and that he had been rehabilitated;
(viii)the fact that cancellation of Mr Lal’s visa would serve as a deterrence to other persons committing similar offences;
(ix)the expectations of the Australian community as to non-citizens obeying Australian laws while in Australia, and as to the need for Mr Lal’s removal from Australia;
(x)the best interests of Mr Lal’s (then) only child, the abovementioned daughter, whom Mr Lal said would be adversely affected by a decision to deport him (I have bracketed ‘then’, because of the subsequent controversial event of the birth of another daughter after the Minister’s decision was made and whilst Mr Lal has continued to be in detention); that daughter lives with her mother in Queensland, she having custody; the daughter was born whilst he was serving one of his terms of imprisonment and she is now 9 years old; Mr Lal spent 5 days with his daughter when she was 3 years old, under the supervision of a probation officer, and intended to spend time with her over the ensuing Christmas period; his maintenance of contact with his daughter was through telephone calls and correspondence;
(xi)the submission by the daughter’s mother that the daughter needed and loved Mr Lal, and had always maintained a close relationship;
(xii)that it was open for the Minister to find from the information provided that the cancellation of Mr Lal’s visa and his removal from Australia would have a detrimental effect on the daughter;
(xiii)the circumstance that Mr Lal arrived in Australia when aged 13 years, and had spent the last 17 years in Australia, albeit the majority of which time in Australia having been spent ‘in and out of prison’;
(xiv)Mr Lal had never departed from Australia since his arrival here in 1985;
(xv)Mr Lal’s family lives in Australia and he has no relation in Fiji; moreover he would have no means of support in Fiji and would not have a home to live in;
(xvi)Mr Lal had always maintained contact with his mother, sisters and his daughter in Queensland, and had provided some financial support for his mother who is sick and in ill health; his family was ‘his life’, having two grown sisters for whom he had provided financial support; he further said his father lived in the United States and they were not in touch with each other;
(xvii)as disclosed by medical evidence, Mr Lal’s mother suffered from glaucoma, back and memory problems, the glaucoma having advanced to legal blindness in her left eye; his mother also suffered fibroids in the uterus, which gave her abdominal pain and bleeding; and
(xviii)Mr Lal’s ambition was to conclude a university course and for that purpose to complete his higher school certificate, and after his release from gaol, to open his own business; he had provided to the Department several educational certificates, drawing examples, school reports and supporting letters from his family.
It was thus a very comprehensive and detailed report that was placed before the Minister, inclusive of many pages comprising copies of his drawings and sketches made whilst in custody. The decision of the Minister was expressed as follows, below which his signature appeared:
‘I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(b) of the Migration Act 1958, (2) my Direction under s 499 of that Act and Mr Lal’s comments, and have decided that… I reasonably suspect that Mr Lal does not pass the character test and Mr Lal has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.’
On the opening day of the hearing of the proceedings on 18 March 2004, Counsel for the applicant filed in Court an amended application accompanied by points of claim. Those points of claim have been already reproduced in [2] above; they were pursued to the extent addressed in these reasons.
The Court was informed after the commencement of the hearing that the applicant, whilst in detention at the Villawood Detention Centre, had recently fathered a second daughter named Nakita Aliya Lal, she having been born on 7 February 2004. The mother of the second child is not of course the same as the mother of his first child, who as earlier indicated above lives in Queensland. He is still held in custody in that Centre. The mother and the second child are not in custody at the Centre, though the second child was conceived whilst Mr Lal has been in custody. The Minister had apparently not been previously informed of that turn of events until the hearing. Counsel for the applicant made the opening submission that it would be the expectation of the Australian community that were a child born after the decision of the Minister, and thus before the execution of that decision, as of course had here occurred, then ‘… as a matter of fairness and in the interests of the community, [the matter] should be reconsidered’, particularly in the interests of the child. I should add that shortly after the child was born, the applicant and the mother of the second child were married at the Villawood Detention Centre. She is unemployed but in receipt of social security benefits, and resides at Macquarie Fields with her parents. She said in evidence that ‘… we need more [financial] help from dad’, referring implicitly thereby to her own father. The mother has the custody of Mr Lal’s second child and is a permanent Australian resident, having been born in New Zealand.
The submissions of counsel for the applicant and my responses thereto, having regard to the submissions of counsel for the Minister
It is appropriate that I address the submissions of counsel for the applicant in the sequence in which they were made in the course of his viva voce address to the Court. Counsel’s earlier written submissions had been assembled on relatively short notice, and were in effect merged, to the extent maintained, into his viva voce submissions, the presentation of which took up most of the first day’s hearing. Counsel for the applicant informed the Court at the outset of his submissions that the hearing of the proceedings had been delayed at the instance of the applicant, on account of the position adopted on behalf of the applicant to await the outcome of the proceedings in the High Court of Shaw v Minister for Immigration and Multicultural Affairs (2004) 203 ALR 143, which involved the statutory implications relevantly of a ‘British subject’, in terms of the Act. The conceivable relevance in relation to Mr Lal was thought to be that he was born in Fiji prior to a relevant historical United Kingdom occasion. The outcome in Shaw was apparently of no assistance to Mr Lal’s hopes of remaining in Australia as in effect a deemed Australian citizen according to law.
The first submission made on behalf of Mr Lal in support of the present application was that it would be the expectation of the Australian community that in the circumstance of the second child having been fathered by the applicant, albeit after the decision of the Minister, but before the implementation of that decision, it necessarily followed that ‘… as a matter of fairness and in the interests of the community… [the decision] should be reconsidered’. Reference was made to Minister of State for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273, where it was held that although the United National Convention on the Rights of the Child, which was of course ratified by Australia, does not become part of Australian law until its provisions are incorporated into particular municipal laws, any such ratification was an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers would act conformably with that expectation. In migration and related cases, considerations of that kind have been applied: see for instance Long v Minister for Immigration and Multicultural Affairs (2003) 76 ALD 610, where in the context of pending removal of a visa holder in detention, the detrimental effect on the best interests of the visa holder’s children was taken into account on the issue as to grant of interlocutory relief pending the hearing of an appeal. A similar issue was considered in Minister for Immigration and Multicultural Affairs v W157/00A (2003) 72 ALD 49.
A threshold difficulty with that first submission, and thus as to the relevance of the birth of Mr Lal’s second daughter subsequent to the Minister’s adverse decision the subject of the present proceedings, is the operation by analogy of the ratio of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Thiyagarjah (2000) 199 CLR 343, to the effect that by reason of the terms of s 481 of the Act, a determination of the Refugee Review Tribunal may not be vitiated by reason of a subsequent event otherwise of significance. A contention to similar effect was here advanced by the Minister and in my opinion correctly so, irrespective of the fact that the decision sought to be vitiated here is that of the Minister and not of the Tribunal.
The submission next advanced on behalf of Mr Lal was that the Department’s notice of intention bearing date 3 October 2002, that it would consider cancellation of the applicant’s transitional permanent visa under s 501(2) of the Act, carried the implicit indication that ‘… Mr Lal was in jeopardy of having his visa revoked’, not because of his earlier offences, but because of his so-called ‘recent offences’ committed after a previous warning. Or put another way on behalf of the applicant, the circumstances the subject of each earlier Departmental warning was said to be superseded, and thus discarded from further relevance, implicitly by the nature and context of each subsequent warning. A reading of all three Departmental letters in question does not in my opinion yield any such radical and unlikely implications.
The applicant next placed reliance upon a report of Dr A.G. Saaresta dated 30 May 2003 relating to the applicant’s mother, thus made after the Minister’s decision sought to be removed, the report reading as follows:
‘Re: Mrs Noleen Robinson
…Mrs Robinson has chronic simple glaucoma and I have been treating her for nine years. Recently, she developed acute bilateral optic neuritis and was an inpatient at the Eye Hospital in Sydney. The result of her optic neuritis is that she has lost sight in both eyes to the extent that she qualifies for 100% blind pension. She needs assistance in walking, shopping and housework. Her son, Samson Lall [sic], who is in Villawood Detention Centre at the moment would be a great help to take care of her. For this reason he needs to remain in Australia and if he was to be deported her health would suffer severely.’
That report was marked as exhibit A2, subject to relevance, the same having been made and provided after the Minister’s deportation decision. The Minister’s decision had been made in the light of the evidence as to the mother’s blindness in one eye only (see again [9(xvii)] above), though it may be inferred that the mother would have suffered advanced distress based on the condition of her other eye, at the time of the decision sought to be reviewed in the present proceedings.
The applicant also tendered a report of Dr R Bright dated 14 March 2004 relating to the applicant’s then partner (since then becoming his wife) reading as follows:
‘Natasha has chronic stress and depression since she [sic] the birth of her child. She has dyspepsia secondary to the stress.
She has the care of her mother in law who is blind.
She continuously warries [sic] about her partner, the father of her daughter, Samson Lal who is in Villawood Detention Centre and not able to help her with everyday tasks, the raising of their daughter and the care of his blind mother.
She needs her partners [sic] support. He needs to be granted a visa to help his family.’
This was marked exhibit A3, again subject to relevance for a similar reason. Neither exhibit is strictly relevant to the present attack on the Minister’s deportation decision, except to the extent that the same address circumstances prevailing prior to the Minister’s decision.
The complaint next raised by counsel for the applicant was that the earlier warning notice of 3 October 2002, sent by the Department to Mr Lal at the Goulburn Correctional Centre, did not include favourable or encouraging comments made by the presiding judges at the respective trials for the offences for which the applicant had been convicted and sentenced, being the convictions and sentences which had preceded the sending of that warning notice, notwithstanding the following documentary enclosures accompanying the notice:
(i) notice of intention to consider cancelling a visa under subsection 501(2) of the Act;
(ii) the section 499 Minister’s direction No 21;
(iii)the convictions, sentences and appeals (being documents provided by the NSW Department of Corrective Services);
(iv)the full text of s 501 of the Act; and
(v)a standard questionnaire.
By that covering letter, it was stated by the Department, in the context of providing to Mr Lal the opportunity to comment, that the following matters would be taken into account by the Minister in reaching his decision whether or not to cancel Mr Lal’s visa.
‘•Protected Information as pursuant to section 503A of the Act. A copy of the text of Section 503A of the Act is attached.
•The Judge’s comments
•Your Sentence Administration Report.
This report contains a record of your offences committed during your incarceration. A copy is attached for your information.’
The letter then continued as follows:
‘In reaching a decision whether to cancel the visa the Minister will have regard to the matters stated 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.
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 that 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 into account.
If you and/or anyone who wish to provide comments and information that you feel the Minister ought to be aware of and take into account, please provide them to this office by mail or facsimile no later than 25 October 2002.
If you do not respond by the above date, a decision will be made on whether your visa will be cancelled using information already held by the Department.
Please also sign on the attached Receipt Confirmation to acknowledge the receipt of this letter and the attachments. You may wish to send in your questionnaire, the Receipt Confirmation and your other comments using the self-addressed envelope.
The address to which you should convey your written response to this notice is:
Maria Nagy
DIMIA
NSW Character Section
Locked Bag CC7
Parramatta NSW 2123Facsimile: 9893 4743.
I can be contacted on 9893 4077 if you have any further questions in relation to this matter.’
I am of the opinion that no viable basis for judicial review is established by the absence of provision to Mr Lal, with the covering letter of 3 October 2002, of the inter-departmental submission to the Minister of 3 December 2002. It is clearly implicit from the text of the above communication to the Minister that the comments of the presiding judges, who passed sentences on Mr Lal, were not inadvertently omitted from the Minister’s briefing. In contrast to other material attached for Mr Lal’s consideration in relation to what had the hallmarks otherwise of a standard communication, it was not indicated explicitly or implicitly by that letter that any such ‘Judge’s comments’ were in fact intended to be attached to the submission. Mr Lal would have been present in Court when judicial comments were made in the context of the pronouncement of the sentences which were passed. Moreover it was open to Mr Lal to request the provision of any such additional information, if he considered that the same would be of assistance to him for the purpose of responding to the Minister’s letter of 3 October 2002. That course appears to have been implemented at least in relation to the reasons for sentencing provided by District Court Judge Moore on 13 August 1998, in the course of which optimistic observations were made by his Honour in favour of Mr Lal. Indeed in any event, the documents described in [19] above were acknowledged in writing by Mr Lal to have been sent to him by the Minister for the purpose of his response. Mr Lal filled out and completed the standard questionnaire I have earlier identified.
Counsel for the applicant next submitted that the critical Departmental document of 3 December 2002 headed ‘Issues of Consideration of Possible Cancellation of Transitional (Permanent) Visa under s 501(2) of the Migration Act 1958’, comprising 16 pages (the last page whereof bearing the signature of the Minister), should have been, but never was, provided to Mr Lal. It was however in my opinion sufficient for Mr Lal to have been provided (which in fact occurred) with the following Departmental material which successively signified Mr Lal’s susceptibility to, and later crystallised, deportation from Australia:
(i)letter dated 2 August 1995 addressed to Mr Lal care of the Cessnock Correction Centre;
(ii)letter dated 10 January 1996 addressed to Mr Lal at his residential address in Macquarie Fields;
(iii)letter dated 26 August 1997 to Mr Lal care of the Junee Correctional Centre;
(iv)letter dated 21 September 1998 to Mr Lal care of the Silverwater Correctional Centre; and
(v)letter dated 19 March 1999 to Mr Lal care of the Cessnock Correctional Centre.
It was in the context of those ample and adequate warnings to Mr Lal that the issues paper was signed by the Minister. It was sufficient in the circumstances for the Minister to foreshadow the outcome of deportation to Mr Lal, and to outline the basis therefor, in order to extend to Mr Lal the opportunity to adequately address the implications, from his perspective, of any deportation decision that might be made. No viable ground for review is constituted by the absence of provision to Mr Lal of that submission paper furnished to the Minister.
The next submission advanced on behalf of the appellant was that ‘[o]f all the offences in the whole criminal history’ of the applicant, only one of those identified in his criminal history, as detailed in the internal document of 3 December 2002, was ‘serious’, namely that of ‘assault police’ appearing in [6(viii)] above, in relation to which the applicant was sentenced to 3 years and 6 months gaol on 30 August 2002. It was contended by the applicant that the earlier offence of assault police, for which the applicant was convicted on 15 December 1994 as appearing in [6(iv)] above, was not a serious offence, since as there appears, the sentence involved was only 6 months gaol. In that context I was referred to those provisions of s 501 of the Act extracted in [3] above. The submission is misconceived. There is no justification for confining the operation of the s 501 expressions substantial criminal record or criminal conduct to an offence of assault, in relation to which there was imposed a sentence to a term of imprisonment of 12 months or more.
Conclusions
Having rejected each and all of the applicant’s submissions, the proceedings as presently structured must be dismissed, upon the basis that the decision of the Minister is not visited with any relevant error, for the reasons I have already indicated in response to each of the applicant’s submissions. There has been no denial of procedural fairness or failure to take into account relevant considerations, nor has there been demonstrated other vitiating administrative errors.
The implications of events occurring subsequent to the Minister’s decision are nevertheless reasonably compelling, such as to merit further consideration by the Minister in the exercise of her discretion. Of course the Minister has no statutory obligation to so do by reason of this recommendation, but having heard evidence as to post Ministerial decision events presented by the applicant, as recorded earlier in these reasons, the Minister might well be prepared to entertain a reconsideration of the application in the light of those subsequent events. I refer of course to the events of the recent birth of Mr Lal’s second daughter, his marriage to the mother of that baby, and his aged mother’s now total blindness, being a condition understandably adding to her distress at the prospect of her son’s deportation to a country where he has no family or friends, and nowhere to live. Those factors may perhaps be seen by the Minister as producing significant additions to the existing factors of this young man’s nineteen years residence in Australia, and the view of the Glenfield Anglican rector already in evidence as to changes of significance in the applicant’s behaviour and attitude.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate:
Dated: 11 June 2004
Counsel for the Applicant: DJ Brezniak Counsel for the Respondent: RT Beech-Jones Solicitor for the Respondent: Clayton Utz Date of Hearing: 18 and 23 March 2004 Date of Judgment: 11 June 2004
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