Lisica v Minister for Immigration - [2004] FMCA 384

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LISICA v MINISTER FOR IMMIGRATION

[2004] FMCA 384

MIGRATION – Visa – transitional permanent visa – application for order of certiorari quashing a decision of the Minister to cancel transitional permanent visa – applicant arrived in Australia from former Yugoslavia as a child – applicant never obtained Australian citizenship – lengthy criminal record.

Migration Act 1958 (Cth), ss.501,503A

Kioa v West (1958) 159 CLR 550
Ayam V Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 539
NAAO v Secretary for Immigration and Multicultural and Indigenous Affairs (2002) 117 FCR 401
Ball v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 699; (2003) 199 ALR 374
Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91
Pakoti v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 376

Applicant:

DAMIAN LISICA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1337 of 2002

Delivered on:

29 April 2004

Delivered at:

Sydney

Hearing date:

28 April 2004

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Reilly

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondent:

Mr Smith

Solicitors for the Respondent:

Clayton Utz

ORDERS

That an Order of certiorari issue quashing the decision of the Respondent on 12 November 2002 to cancel the Applicant’s Transitional (Permanent) visa pursuant to s.501(2) of the Migration Act 1958.
That an Order of prohibition issue prohibiting the Respondent from acting further upon the decision to cancel the Applicant’s Transitional (Permanent) visa.
That the Applicant be released from the immigration detention forthwith.
That the Respondent pay the Applicant’s costs of this Application in the sum of $5.000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1337 of 2002

DAMIAN LISICA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for an order of certiorari quashing a decision of the respondent Minister made on 12 November 2002 to cancel the applicant's Transitional (Permanent) visa pursuant to section 501 subsection (2) of the Migration Act. There is also an application for an order of prohibition prohibiting the respondent from acting further upon the decision.
The history of this matter is that the applicant was born in September 1964. In 1968, when he was four years of age, he and his family emigrated from the former Yugoslavia to Australia. He arrived in Australia on 4 November 1968. He was granted permanent residence upon his arrival and his permanent visa was deemed to continue to be in effect long after 1 September 1994 under the Migration Reform Transition Committee's regulations as a Transitional (Permanent) visa. He has resided in Australia ever since he arrived.
His family, including parents and a sister, all reside in Australia. The part of Yugoslavia from which he came is now an independent country, being Croatia. He has no contacts in Croatia and has only a rudimentary grasp of the Croatian language. Whilst other members of his family applied for and were granted Australian citizenship, for some unexplained reason the applicant did not obtain Australian citizenship. Apparently he would now hold Croatian nationality. The applicant has a lengthy criminal record dating from January 1984 when he was convicted by a Magistrate for driving with a mid-range prescribed concentration of alcohol in his bloodstream. He was fined $400 and disqualified from holding or obtaining any driver’s licence in the state of New South Wales for a period 12 months.
Driving with the prescribed concentration of alcohol in one's bloodstream is defined in the New South Wales legislation as a major motoring offence. The applicant came under notice for offences of dishonesty and for drug offences. He was first sentenced to prison for offences of dishonesty in October 1990 when he received a sentence of a fixed term of imprisonment of three months. Between 1990 and March 2002, the applicant received various prison sentences from courts in Sydney of between two and six months.
His sentences expired on 1 January 2003. The applicant has had an involvement with prohibited drugs for some years. His record shows this clearly. There have been several occasions where he has failed to appear at the court and warrants were issued whereby he was convicted in his absence. A warrant under section 80AA of the New South Wales Justices Act, as it then was, was issued and his apprehension for sentence. In July 2001, as it appeared clear that his offences, or many of them, related to his addiction to prohibited drugs, he was referred to the Drug Court at Parramatta.
His record shows that a number of his offences were dealt with by way of suspended sentences under the provisions of the appropriate legislation. Regrettably, he failed to comply with the program imposed on him by the Drug Court and within a few months he had come under further notice and, of course, warrants were issued for his apprehension for failure to comply with the Drug Court program. It is salutary to reflect that had the applicant complied with the program that the Drug Court made available to him, as so many offenders have done in the past, he would not find himself in the predicament in which he currently stands.
Whilst he was being held in prison, serving sentences of imprisonment, he received from the respondent department a notice of intention to consider cancelling his visa under provisions of section 501 subsection (2) of the Migration Act. He received a letter dated 16 September and was given the opportunity to provide comments and information that he considered would be appropriate for the Minister to be aware of. He, in fact, received a questionnaire for him to fill in. A person from the Silverwater Correction Centre, a Ms Khan, who presumably was involved as a social worker or some other occupation assisting the welfare of prisoners, contacted an officer of the New South Wales Character section of the respondent Department seeking an extension of time until 9 October in order to provide the information in answer to the questionnaire.
That extension was granted and the completed questionnaire was faxed to the Department from Silverwater on 9 October 2002, the last day of the extended period. In that document the applicant set out details of his history, he advised that he had no family or contacts in Croatia, he had only rudimentary knowledge of Croatian, he had no place to live there nor any financial resources in that country. He pointed out that he was four years old when he came to Australia and felt that he was Australian. He also provided material which indicated that whilst he was serving the sentence he involved himself in a number of programs including, most importantly, a program to rehabilitate himself from the effects of prohibited drugs and other programs involving trade qualifications to assist him upon his expected release into the community.
It appears on the material available to the court today that he no longer has a drug problem. The respondent Minister on 12 November 2002 cancelled the applicant's visa. In his decision of that date he said:
I have considered all relevant matters including (1) an assessment of the character test as defined by section 501 subsection (6) of the Migration Act 1958, (2) my direction under section 499 of that Act and Mr Lisica's comments and have decided that I reasonably suspect that Mr Lisica does not pass the character test and Mr Lisica has not satisfied me that he passed the character test and I have decided to exercise my discretion under section 501(2) of the Act to cancel the visa so I hereby cancel the visa.
On 1 January 2003, the applicant's prison sentences came to an end. He was due for release on that date. What happened, however, was that on that date he was detained under section 189 of the Migration Act 1958 and he has been held in immigration detention ever since. When he attended court yesterday he came from immigration detention under escort and he was returned to that detention at the conclusion of the case.
What the applicant says is that the decision of the Minister, if it is carried out, will in effect exile him from Australia, the country that he regards as home. He was informed that his visa had been cancelled by means of a letter dated 20 November 2002. In that letter he received his notice of visa cancellation and he was informed the particular ground under which the Minister decided to cancel his visa, that was pursuant to section 501 subsection (2) of the Act, that he did not pass the character test provided in subsection (6) of section 501 of that Act.
The applicant has made an application to this court seeking the orders which I have previously advised. Originally, he was informed that the basis of this decision was failing to pass the character test under section 501 subsection (6). He was also informed that there was some protected information, as set out under section 503A. This information was not made available to the applicant. Subsection (2) of section 501 says, and I quote:
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 has not satisfied the Minister that the person passes the character test.
Subsection (6), in respect of the character test, says, and I quote:
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 persons past and present criminal conduct.
The applicant, of course, does not cavil with the fact that he has a substantial criminal record and that, of course, a substantial criminal record is set out in subsection (7) section 501. Whilst he has not been sentenced to a term of imprisonment of any one time exceeding 12 months or more, he has been sentenced to two or more terms of imprisonment and his terms of imprisonment have accumulated so that he comes within the purview subsection (7). As far as protected information is concerned, section 503A refers to that particular material related to the protection of information supplied by law enforcement agencies or intelligence agencies.
It has been described as very wide ranging and it appeared, until the day of the hearing, that there was some other information that the applicant was prevented from seeing on the basis that it was protected information. What happened, however, was that the applicant's legal advisers issued a notice to produce. In reply to that notice to produce the respondent provided an affidavit by one Summer Nguyen-Aulmann. a legal officer of the respondent department. The affidavit makes it quite clear that the documents referred to were in fact the applicant's criminal record. What the applicant says is that this information was never protected information. If it is the applicant's criminal record it may well be confidential vis-a-vis other persons but it cannot be confidential from the applicant himself.
The respondent chose to deal with the applicant under the provisions of subsection (2) of section 501. If for instance, the matter had been dealt under subsection (3) the provisions of natural justice do not apply but that is not the case and where the respondent deals with a person under the provisions of subsection (2) of section 501 there is an obligation to provide natural justice.
Mr Reilly of counsel who appeared for the applicant says that the applicant has not received natural justice, he has been denied procedural fairness by the actions of the respondent. Mr Reilly pointed out that cancellation of the applicant's visa has a most serious consequence for him, it means in effect, exile from Australia, the country which he calls home, the country which he regards as home and in fact, exiled to Croatia in the former Yugoslavia which is a country that he has not seen since the age of 4, a country whose language he barely speaks.
He was told that the decision was based on his criminal history at which he cannot cavil but also, that there was some secret information ie, the protected information that he was not privy to although as it is now revealed what it is or what is the protected information was nothing more than the criminal record provided by the Australian Federal Police. For the respondent, Mr Smith of counsel said that the case boils down to one particular issue, the applicant must establish that he has been denied procedural fairness by not being shown his criminal record.
Mr Smith referred to the decision of the High Court of Australia in Kioa v West (1985) 159 CLR 550:
Natural justice is to be determined on all of the circumstances before the court, one must establish whether the applicant has been made aware of the central issue on which the matter had been determined.
Now, it was put by Mr Smith that when the material from the Australian Federal Police is forwarded to the Minister, that the Federal Police version, if you like or the material that came from the Federal Police setting out the applicant's criminal record, that there was a claim that it was protected information. Mr Smith has relied on the statement that appeared on facsimile cover sheet and that statement is as follows and I quote:
This facsimile message may contain information that is confidential and subject of legal privilege which is intended only for the individual or entity named above. If you are not the addressee of the message you are hereby notified that copying, circulation or publication of this message is strictly forbidden, as is the disclosure of the information contained therein. If you have received this message in error, please notify the sender immediately and arrangements will be made to recover it.
I note that in reply, in his submission in reply Mr Reilly of counsel pointed out that whether something is protected information pursuant to section 503A is not decided by a pro forma message that appears on a fax cover sheet and with respect, I agree with that submission. Clearly the matter must be dealt with on a perusal of the information and a consideration of the circumstances of the case.
To return to the submissions made by counsel for the respondent, the applicant was made aware that his visa was in jeopardy of cancellation as a result of his criminal history. He was aware that this criminal history was an issue and he was certainly aware that it was an issue that was central to the decision being made. He was asked about the effect of the possible visa cancellation and he provided that information. He was certainly on notice of the matters, it is submitted that the Minister would be relying upon, to make the decision to exercise a discretion whether or not to exercise a discretion to cancel his visa.
It was put that the inference must be that the applicant was aware of his criminal history. That may be so but in my view, that is not the test. It is one thing for a person with a criminal record to be aware of what that criminal record is but it is another thing to be aware of a document tendered to an authority, be it the Minister in this case or be it a court produced by the police or by the Department of Corrective Services saying what is the person's criminal history.
Courts exercising criminal jurisdiction in this country are only too aware of the necessity to satisfy themselves as to the accuracy of a document setting out a person's criminal antecedents. In imposing a sentence a judge or a magistrate will inquire about the person's criminal antecedents and will take those matters into account when imposing a sentence. It is the practice in courts exercising criminal jurisdiction right across this country to satisfy themselves that the document setting out the person's criminal antecedents as alleged by the prosecution is, in fact, accurate. An example of this is set out in the transcript which appears on pages 19 through to 26 of the court book which is a transcript of the proceedings before Tupman DCJ in the New South Wales District Court hearing one of the applicant's many appeals over his criminal history in respect of a sentence imposed on him by the Local Court. The last such appeal, I note.
It emerges from the transcript that Her Honour was most concerned to find out what the applicant or the appellant in the case before her had by way of criminal antecedents and indeed the lawyer who appeared for the applicant, a Mr Laycock, indicated to her Honour that the criminal record from the New South Wales Department of Corrective Services, as opposed to that printed out by the New South Wales police, was the document that was appropriate. At page 3 of the transcript, beginning at line 55, Mr Laycock says to her Honour:
If I can assist your Honour in the papers inside the District Court file there are other criminal records. I submit the document sets out the sentences is the Corrective Services document in that file.
Mr Smith, for the respondent, referred the court to the decision of the full court of the Federal Court in Ayam and The Minister for Immigration and Multicultural and Indigenous Affairs, a decision which was handed down on 27 June 2003 and the court citation is 2003 FCA FC 539. In that matter the question of a criminal record was given some attention. At paragraph 20 her Honour said:
The question whether the respondent was required to provide the appellant with his own criminal record or the particular form of his own criminal record relied upon depends on all the circumstances of the case.
And in fact, later on in that paragraph, in referring to the decision in Kioa and West that I have previously referred to:
To enable the person, the subject of the decision to understand the matters which he or she needs to address, and to have a reasonable opportunity to address those matters. This assessment is not to be made by applying a priori logic but by attendance to the particular circumstances of the case and the procedure adopted up to the point of decision making.
Again, in Ayam it was pointed out that in that case the appellant was interviewed in prison and discussed his criminal convictions and accepted them. In paragraph 30 of that decision, their Honours came to the conclusion that, in the circumstances, the appellant in that case did not need to be told of the precise detail of his criminal past and the sentences that had been imposed on him. Then his successive solicitors approached the matter, entirely sensibly if we may say so, on the basis that there was no real issue about the precise detail of his record.
As I said, the situation in Ayam was that the appellant in that case was actually interviewed and was given the opportunity to discuss his criminal record, thus the document that was presented to the Minister was no surprise to the appellant. This is not the case in the matter before me. Mr Reilly has pointed out to me the decision of NAAO v The Secretary of The Department of Immigration and Multicultural and Indigenous Affairs reported in [2002] 117 Federal Court Reports 401 whether protected information is an objective matter for the court to be decided.
I refer also to the decision of Ball v The Minister for Immigration and Multicultural Affairs. The decision of the primary judge, Ryan J, is reported in [2003] 199 Australia Law Reports page 374, and I note that that decision has been affirmed on appeal by the full court. The Minister for Immigration and Multicultural and Indigenous Affairs v Ball reported in [2004] FCA FC 91 a decision handed down on 22 April this year. It's hardly surprising in the circumstances that I did not receive the Appeal Court decision in my list of authorities provided by counsel, bearing in my mind that this is very recent.

What is clear from the decisions is that again there was a decision of the Minister based on protected information. In the decision of Ryan J, referring to Ms Ball, his Honour said:
In that case she had the opportunity to advance a case to the Minister but for reasons explained above she is not given an opportunity to know the material adverse to her on which the Minister might have relied. Accordingly, she was not accorded that degree of procedural fairness, which, on the authority of the case as cited above, I consider the Act on its proper construction in the circumstance of the case required.
The decision at first instance in Ball, which has now been affirmed on appeal, has been considered by my learned colleague, Federal Magistrate Raphael, in the decision of Pakoti v the Minister for Immigration and Multicultural and Indigenous Affairs, the citation for which is [2003] FMCA 376. That decision, of course, is not binding upon me but in the ordinary course of events I would find it persuasive. The circumstances in Pakoti are not dissimilar to the circumstances of the case before me.
At paragraph 22, his Honour said, quote:
It is not appropriate to argue that information about the applicant's own criminality has no need to be put to her because she knows it already. The applicant does not know what the information was that the Minister sought to rely upon. It may not have been information about her at all. It could have been about someone with a similar name. The obligation of the Minister to put such information to an applicant was considered in some detail by Ryan J in Ball and The Minister for Immigration 2003 FCA 699.
The circumstances in Pakoti are of such similarity to the circumstances in the matter before me that, with respect to his Honour, I consider that I should follow his Honour's decision. It was put to me by Mr Reilly for the applicant that there was no suggestion of bad faith but a practice of concealing an applicant's own criminal record from an applicant in a case such as this should at the very least be reviewed.
Certainly the practice which results in a decision being made where an applicant is, to use Mr Reilly's graphic phrase, exiled from Australia forever, should cease. I am of the view that where the results of a decision unfavourable to a person can be made under subsection (2) of section 501 of the Act, a decision being so unfavourable that it does result in a person being removed from the country which they consider to be their home and which has, in effect, been their home from childhood to adult life is a matter where not only if there are requirements for natural justice to apply but that the respondent's Department must be assiduous in following the requirements of procedural fairness and thereby natural justice to the letter.
It is a requirement of natural justice that where criminal antecedents are to be relied on as the central issue then a copy of those antecedents must be provided to the person concerned in plenty of time for that person to comment upon them as to whether they agree or disagree with them. It is appropriate therefore that I should grant the application for review. I note that in the decision of my brother Federal Magistrate Raphael in Pakoti v The Minister that his Honour not only granted an order for certiorari to quash the decision made by the respondent Minister but that his Honour went further to order that the applicant be released from immigration detention forthwith.
The applicant has sought orders in his amended application that there should be an order of certiorari issued, there should be an order of prohibition prohibiting the respondent for acting further upon that decision. I propose to issue an order of certiorari quashing the decision of the respondent Minister made on 12 November 2002, to cancel the applicant's transitional (permanent) visa pursuant to subsection (2) of section 501 of the Migration Act 1958. I further make an order of prohibition prohibiting the respondent from acting further upon the decision to cancel the applicant's transitional (permanent) visa.
I should, at this stage, hear submissions as to whether I should go further and follow his Honour's decision to make an order that, in this case, the applicant forthwith be released from immigration detention.
In my view, as a result of the orders which I have made and noting that the only reason that the applicant was held in immigration detention was the decision made by the respondent, which has been the subject of the orders that I have made today, there can be no further reason for the applicant to be held in immigration detention. I consider, with respect, that I should follow the decision of Federal Magistrate Raphael in Pakoti and I order that the applicant forthwith be released from immigration detention.
This is a situation where the costs follow the event and I am of the view that the respondent should pay the applicant's costs of this application. It is my normal practice to make an order in a fixed sum rather than ordering that costs be taxed. My view is that the matter should be decided today. I note that again in the decision of Pakoti which was handed down on 5 September, Federal Magistrate Raphael considered that the sum of $5000 was appropriate. I note that counsel were briefed on each side and it seems to me that this is a very, very similar matter to Pakoti. I order that the respondent pay the applicant's costs for this application in the sum of $5000.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 21 June 2004