MAAKA v Minister for Immigration
[2005] FMCA 193
•24 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAAKA v MINISTER FOR IMMIGRATION | [2005] FMCA 193 |
| MIGRATION – Visa – cancellation of visa – whether jurisdictional error arising from procedural unfairness. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474; 475A; 501 Children (Criminal Proceedings) Act 1987 (NSW) Drug Misuse and Trafficking Act 1985 (NSW), ss.10; 12; 21 |
| Re MIMIA & Anor; Ex parte Miah (2001) 206 CLR 57 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 Tuncok v MIMIA [2003] FCA 1069 Ayan v MIMIA [2003] FCAFC 139 Re MIMIA; Ex parte Lam (2003) 195 ALR 505 Untan v MIMIA [2003] FCAFC 69 Wiseman v Borneman [1971] ACT 297 Kioa v West (1985) 159 CLR 550 Jones v MIMIA [2005] FCA 70 |
| Applicant: | RITCHIE MAAKA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3150 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 December 2004 |
| Date of Last Submission: | 23 December 2004 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms Seward |
| Solicitors for the Applicant: | Ebsworth & Ebsworth |
| Counsel for the Respondent: | Ms Henderson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That a writ of Certiorari issue quashing the decision of the Respondent on 12 August 2004 to cancel the Applicant’s Special Category (subclass 444) visa.
That an Order of prohibition issue prohibiting the Respondent from acting further upon the decision to cancel the Applicant’s Special Category (subclass 444) visa.
That the Applicant be released from immigration detention forthwith.
That the Respondent pay the Applicant’s costs of this Application in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3150 of 2004
| RITCHIE MAAKA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUR AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for a writ of prohibition restraining the Respondent Minister from acting on her decision of 12th August 2004 to cancel the Applicant’s visa and for a writ of certiorari quashing the decision.
Background
The Applicant is a New Zealand citizen who was born on
25th August 1979. He arrived in Australia on 29th April 1981 at the age of two years and eight months. He has lived in Australia ever since.
The Applicant was granted a Special Category visa on 1st September 1994 under the Migration Reform Act.
The Applicant first came under adverse notice in February 1995, when he was aged 15 years and 6 months. On 21st February 1995 he received control orders under the Children (Criminal Proceedings) Act (1987) (NSW) at the Cobham Children’s Court for the offences of illegal use of a motor vehicle and armed robbery in company. These sentences were reduced to non-custodial sentences on appeal.
From then on, the Applicant received numerous other sentences first in the Children’s Court of New South Wales and then, when he became an adult, in the Local Court. His most recent conviction appears to have been on 7th July 2003, when he was sentenced to imprisonment for
6 months at Burwood Local Court for the offence of break and enter building with intent to steal. He had previously received a sentence of imprisonment for twelve months with a non-parole period of nine months at Fairfield Local Court on 23rd June 2003, for the offences of taking and driving a conveyance without the consent of the owner and driving a motor vehicle at a speed or in a manner dangerous to the public.
The Applicant’s criminal record shows a history of drug involvement, as he appeared at the Parramatta Drug Court in November 1999, February 2000 and September 2001. He entered the Drug Court program on 30th November 1999.
The Applicant was previously considered for visa cancellation under
s.501 of the Migration Act in August 2002. The then Minister decided not to cancel the Applicant’s visa but issued a warning to him, which the Applicant received on 3rd September 2002.
On 12th August 2004, the current Minister again considered the Applicant’s situation. The applicant had by then been convicted and sentenced for the offences referred to in paragraph 5 above. The Minister decided that the Applicant was deemed to have a substantial criminal record as a consequence of his sentences, which totalled terms of two or more years. As a result, the Minister deemed the Applicant not to pass the character test by virtue of s.501(6) of the Act.
The Minister next proceeded to consider whether she should exercise her discretion to cancel the Applicant’s visa. The Minister stated that she considered matters under the headings of “Protection of the Australian Community”, “Expectations of the Australian Community” and other considerations. Having done so, the Minister concluded that:
The continuous nature and seriousness of Mr Maaka’s crimes over an extended period, the disruption these crimes have caused others ad the expectations of the Australian community outweighed all other considerations” (at page 6 of the Court Book).
The Applicant’s submissions
Ms Seward of counsel appeared for the Applicant. In her written submission, she referred the Court to the letter of 3rd December 2003 to the Applicant from the Department of Immigration and Multicultural and Indigenous Affairs. In that letter, the Department advised the Applicant that his visa may be liable for cancellation and giving him an opportunity to comment on matters to be taken into account. The Department provided a copy of Direction 21 to the Applicant in that letter.
In her submission, Ms Seward referred to the fact that Paragraph 2.5 of the Direction states that the seriousness and nature of the criminal conduct in question is one of three factors relevant to an assessment of risk to the community when the Minister is considering the need to take reasonable steps to protect the community. She went on to point out that paragraph 2.6 is the only paragraph that deals with the seriousness of the conduct of the party. The paragraph relates to conduct that the Government regards as “very serious”.
In the submission, Ms Seward accepts that the Minister is not bound by Direction 21. The Minister stated, however, that she had proceeded in accordance with the Direction.
Ms Seward concedes, quite appropriately, in my view, that there is no issue that the Applicant failed the character test. He failed the test both because of the number of offences he had committed and by the cumulative effect of the prison sentences he had received, which
Ms Seward points out are all “relatively short”.
The Applicant’s case lies in what counsel described as “the Minister’s failure to advise him that she intended to exercise her discretion under section 501(2) other than in accordance with Direction 21 as reasonably understood.”[1]
[1] Applicant’s written submission paragraph 15.
At page 3 of the Court Book, Ms Seward noted that the Minister’s reasons observed that the Applicant had been convicted of a number of offences, including certain drug offences, larceny, goods in custody, breaking and entering etc. The Minister then found that “some of the Applicant’s offences constitute crimes that I consider to be very serious under paragraph 2.6 of the Direction”. The categories nominated by the Minister were three very serious categories, including serious drug crimes.
Ms Seward pointed out that the Applicant’s drug offences for which he had been found guilty were all summary matters under sections 10 and 12 of the Drug Misuse and Trafficking Act 1985 (NSW) for which the maximum penalty is a fine of 20 penalty units or 2 years imprisonment or both. The sentences imposed in each case were relatively small fines.
The submission is that none of the Applicant’s drug crimes could be seen from an objective reading of the material before the Minister to fall into the “very serious” category.
Ms Seward submitted that the Minister appeared to have exercised her discretion either by:
a)considering that the Applicant’s drug offences fell within the “very serious” category; or
b)not following the Direction, despite saying that she had done so in her reasons for decision and despite the Applicant having been advised that this course would be followed.
The finding that the Applicant’s offences, including the drug offences, were in the “very serious” category was an integral and inseparable part of the Minister’s findings:
a)at paragraph 64[2] where the Minister gave great weight to the consideration that the Australian community needed protection; and:
b)at paragraph 71[3] where the Minister gave great weight to the expectation of the Australian community that the Applicant’s visa would be cancelled.
[2] Page 4 of the Court Book
[3] Also at Page 4 of the Court Book
The Applicant submits that the decision has led to a denial of natural justice. I will quote the relevant parts of the submission in full:
Once the Minister or her Department advised that the Direction would be taken into account when exercising the discretion under section 501(2), procedural fairness requires that the Applicant be notified of any reading or understanding of the Direction that was not reasonably obvious on its face or of the Minister’s or of the Minister’s intention not to follow the Direction in its particular aspect.
This was not something that the Applicant could reasonably have expected without notification: see Re MIMIA & Anor; Ex parte Miah (2001) 206 CLR 57 at [147]
The failure to advise the Applicant in the 3 December 2003 letter or at any material time that it was intended to regard summary drug offences relating only to drug use by the Applicant himself as offences which were in the ‘very serious’ category (a) set out in paragraph 2.6 of the Direction was an effective failure to advise the Applicant of all of the factors that would be taken into account in coming to a decision under s.501(2): see Re Refugee Tribunal: Ex parte Aala (2000) 204 CLR 82 at [78] and [103]; Re MIMIA & Anor; Ex parte Miah at [99], [140] and [192].
That (sic) failure to inform the Applicant of the case he had to meet was sufficient to establish ‘practical injustice’ for the purpose of establishing procedural unfairness: Tuncok v MIMIA [2003] FCA 1069 at [33] – [34]…
The Minister’s failure to provide procedural fairness resulted in jurisdictional error: Re Refugee Tribunal; Ex parte Aala at [4], [80], [131] and [211].
The Respondent’s submission
Ms Henderson of counsel provided a written submission on behalf of the Respondent, which she began by pointing out that the Minister’s decision is a privative clause decision under section 474 of the Migration Act and may only be impugned on the basis of jurisdictional error.
Ms Henderson drew the Court’s attention to the Applicant’s long criminal history, commencing with an appearance at Cobham Children’s Court on 27th December 1994 charged with illegal use of a motor vehicle[4]. She correctly points out that the Applicant conceded that he had a heroin habit, to which he attributed his offending.
[4] Counsel seems to have formed the view that Cobham Children’s Court is situated at Springwood, although it is actually at Werrington NSW. The reference to Springwood at page 89 of the Court Book indicates that the charge originated at Springwood Police Station.
At paragraph 6 of her written submission, counsel noted that the Applicant had received a warning letter from the previous Minister dated 30th August 2002. The relevant part of the warning letter read:
You are warned that any further conviction will lead to the question of visa cancellation being reconsidered. Disregard of this warning will weigh heavily against you in the event of your case being
re-opened.[5][5] The emphasis was in the original letter.
In the submission, counsel for the Respondent noted that the Amended Application concentrates solely on the claim that the Applicant was denied procedural fairness, which therefore led to jurisdictional error. She submitted that the presence or absence of procedural fairness must be evaluated in the context of the individual case, quoting from the useful judgment of the Full Court in Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 139 at [20]:
…the assessment of whether there has been an absence of procedural fairness is one of assessment of ‘practical injustice’ (Re Minister for Immigration and Multicultural and indigenous Affairs: Ex parte Lam (2003) 195 ALR 502 [34] and [38] per Gleeson CJ and see also [122] per Hayne J and [149] per Callinan J, and the Full Court of this Court[6] in Untan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 69 at [96] or [99] or whether the procedure was ‘fair in all the circumstances’ Wiseman v Borneman [1971] ACT
297, 308 (per Lord Reid) applied by Brennan J in Kioa v West (1985) 159 CLR 550 at 662 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.
[6] Ie The Federal Court
Ms Henderson submitted that the circumstances of the High Court decisions Aala (supra) and Miah (supra) bear no resemblance to the case before this Court. She characterised the Applicant’s argument as in essence, that he was misled as to the way in which the Minister would approach the exercise of her discretion. Ms Henderson said that the discretion in s.501(2) is unfettered, except for the requirement that it must be exercised by reference to considerations identified from the subject-matter, scope and purpose of the statute.
Counsel submitted that it is an unsound proposition to regard “serious conduct” in paragraph 2.6 of the Direction as defined by a proposition containing examples of offences that are regarded as “very serious”. How, then, does one define “serious conduct”?
Conclusions
In my view, there is a great deal of force in the Applicant’s submissions. I accept the fact that the Applicant received a clear warning about the consequences of his re-offending, and I accept the fact that he cannot be regarded as a person of good character, quite the reverse, in fact.
It is, to my mind, correct to say that procedural fairness must be evaluated in the context of the individual case, as Ms Henderson submitted. That said, it appears to me that the Applicant was advised that the Minister would take Direction 21 into account and, in this case, the Applicant was entitled to expect that the ordinary meaning of the Direction would apply. If that were not to be the case, then he should have been told that the Minister’s understanding was different from the ordinary meaning of the direction.
The Applicant’s drug issues are in two separate categories.
First, he has three findings of guilt for summary drug offences relating to possession of a prohibited drug or administering such a drug to himself. The first took place in 1996, when he was still a child. The other two took place at Fairfield Local Court in 1999 and 2003. He was an adult in each case, but the fines were relatively small, $250.00 and $100.00. There is nothing to suggest what the prohibited drugs were, although the relatively small nature of the fines suggests marijuana rather than a “hard” drug such as heroin.
The other drug issue concerns the fact that he has committed a number of larceny offences to support a self-confessed heroin habit. It was this issue that led to his being referred to the Drug Court.
When looking at the Applicant’s criminal history, it is clear that all of his offences have been ones that can be dealt with summarily. His court appearances as an adult have been in the Local Court, the third tier of the court system in New South Wales. The only times he has been to the District Court, the second tier, have been when he has appealed against a custodial sentence imposed by a Magistrate.
The fact is that the Applicant has a history of minor, drug-related crime. As an adult, he has been involved in burglaries, shopliftings and stealing motor cars (and driving them dangerously) to make money to fuel his drug addiction. He has a lengthy criminal history and can well be regarded as a chronic nuisance.
The various crimes that appear in paragraph 2.6 of the Direction bear little relation to the offences committed by the Applicant. The drug offences referred to there are “the production, importation, distribution, trafficking (including possession for this purpose) commercial dealing, or selling of illicit drugs”.
Those drug offences are far and away more serious than the summary offences of possession or self administer for which the Applicant has come under notice.
The offences involving breaking and entering, or entering on inclosed lands (ie trespassing) and stealing motor cars committed by the Applicant do not even rate a mention in the list of crimes that are to be found in paragraph 2.6.
When reading Direction 21, the Applicant could not reasonably have been expected to appreciate that the matters that appear in his record would be regarded by the Minister as falling into the “very serious” category, unless he had been notified of that fact.
As a result, the failure to advise the Applicant of the case he had to meet was sufficient to amount to practical injustice. I am satisfied that this practical injustice amounts to procedural unfairness. This procedural unfairness has resulted in jurisdictional error. As there is a jurisdictional error, the decision is not a privative clause decision and section 474 does not apply (see Jones v MIMIA [2005] FCA70).
The Applicant should be granted on the ground of procedural fairness.
I propose to make the orders sought by the Applicant.
Costs usually follow the event in this jurisdiction. The Applicant was legally represented in these proceedings and I intend to order that the Respondent is to pay the Applicant’s costs. It is the usual practice in the Federal Magistrates Court to award costs in a fixed amount wherever possible rather than have costs taxed.
I propose to set costs in the sum of $4,500.00.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 1 March 2005
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