Morgani v Minister for Immigration
[2003] FMCA 364
•28 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MORGANI v MINISTER FOR IMMIGRATION | [2003] FMCA 364 |
| MIGRATION – Review of Minister’s decision to cancel visa under s.501 of the Migration Act 1958 (Cth) – where the Minister provided the applicant with a copy of the ‘Minister’s Discretion No.21’ before the decision was made to cancel his visa – where the applicant was given the opportunity to respond – where the ‘issues paper’ constituted the reasons until proper reasons were later provided to the applicant – whether the Minister failed to take some matters into consideration – where the applicant argues that the Minister’s decision on recidivism was unreasonable – whether the whole decision was unreasonable in the Wednesbury sense. |
Migration Act 1958 (Cth), s.501
Re Aksu v Minister for Immigration [2001] FCA 514
Griffiths v Minister for Immigration [2003] FMCA 249
Singh v Minister for Immigration (2000) 105 FCR 453; (2000) 179 ALR 713
Minister for Immigration v W157/00A (2002) 72 Ald 281
Re Ruddock, Minister for Immigration; Ex parte Truong (22 March 2001 unreported (HC))
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Singh v Minister for Immigration [2000] FCA 485; (2000) 173 ALR 313
Minister for Immigration v Eshetu (1999) 162 ALR 577
Re Minister for Immigration; Ex parte S20/2002 [2003] HCA 30
| Applicant: | ANTONIO MORGANI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 18 of 2003 |
| Delivered on: | 28 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 22 August 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Solicitors for the Applicant: | David Begg & Associates |
| Counsel for the Respondent: | Mr Robert Bromwich |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 18 of 2003
| ANTONIO MORGANI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Mr Morgani is an Italian citizen. Together with his parents he arrived in Australia in 1969 seeking permanently to relocate from Italy. He undertook all of his study in Australia, finished high school and commenced an apprenticeship. His mother committed suicide when he was thirteen. At the age of 21 he was married but by 1989 he was divorced. His evidence is that the divorce severely disturbed him and it resulted in him turning to crime to satisfy a drug habit which he had acquired as a consequence. Mr Morgani’s criminal record is contained in the papers. It is not necessary to go to it in detail, suffice to say it includes a number of convictions for armed robbery although the length of sentence imposed in regard to those crimes indicates that they were not considered to be at the very worst end of the spectrum. However, he was on at least four occasions sentenced to terms of imprisonment exceeding one year.
Mr Morgani never became an Australian citizen. It is accepted that he has a right of abode in Australia subject always to the provisions of the Migration Act and in particular in his case to the provisions of s.501. This section provides machinery whereby the Minister either by himself or acting through a delegate can, on suspicion that a person does not pass the character test, assess whether or not he or she does so and if he or she fails to pass the test, exercise a discretion to cancel that person’s visa whereupon that person becomes liable for deportation into their country of origin.
In this case the Minister decided that he would personally undertake the decision making progress set out in s.501(2):
“501(2)The Minister may cancel the visa that has been granted to a person if:
(a)The Minister reasonably expects 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.”
The provisions of this section are provisions to which the rules of natural justice apply.
In accordance with the Minister’s normal practice Mr Morgani was advised by his department that his visa was liable for cancellation pursuant to s.501 in a letter dated 14 August 2002. Mr Morgani was provided with a copy of the relevant legislation and a document entitled “Minister’s Direction No 21.” This direction is a direction which is given to delegates of the Minister when they are acting under delegated powers. It is intended to ensure that decisions on these sensitive issues are consistent. The Minister, whilst acknowledging that the direction does not bind him because he has an unfettered discretion, advises a person who is subject to a decision under s.501 that he, the Minister, will apply that direction when considering the person’s case. The direction goes to the exercise of the Minister’s discretion and provides for some categorisation of matters which are taken into account.
Mr Morgani responded to the Minister’s letter by making a submission and included in it comments from his de facto partner, friends and professional counsellors. These responses are found in the Court Book along with extracts from the applicant’s criminal record and Judge’s sentencing remarks.
The main thrust of Mr Morgani’s submissions was that his criminal activity had been driven by his drug dependence and that over the last two years he had, with the assistance of various organisations, managed to wean himself off heroin. He had also entered into a long term de facto relationship and was listed as a tenant on his de facto’s tenancy with the New South Wales Housing Commission. It is not entirely clear whether he was in employment at the time the responses were received but I am informed that he was in employment just prior to the time when he was taken into detention at Villawood.
Mr Morgani also made it clear in his submissions that he did not speak Italian, that he had no relatives in Italy, that he had little understanding of the Italian way of life and that it would cause considerable hardship to his de facto if she was required to live in Italy with him. He also indicated it would cause hardship to his father if he was removed into Italy because it would be difficult for his father to visit him there. Mr Morgani would have none of the support facilities which were made available to him and which he claimed had been instrumental in the successful termination of his heroin habit.
In accordance with the usual practice in these matters Mr Morgani had been provided with a document which is sometimes described as an “issues paper” and is a detailed briefing paper to the Minister to enable him to make a decision in the matter. This document is found at [CB 6] et seq. At the conclusion of the document there is a proforma series of decisions with the notation “Please delete whichever is NOT applicable.” Three of the decisions have been deleted and the fourth has not. The fourth decision was for the Minister, having found that the applicant did not pass the character test to decide to exercise his discretion to cancel the visa. For some considerable time after commencement of these proceedings that document was said to constitute the Minister’s reasons. However, lately a proper set of reasons have been provided. To the extent that the applicant had complained that he had not been given reasons and that this was in contravention of the Migration Act the complaint is now moot.
Mr Morgani was represented before me and I was provided with some helpful written submissions by his solicitor Mr Begg. Mr Begg’s argument before me was restricted to those matters which appeared on the second page of his submissions and which I reproduce below:
“We contend that the visa cancellation decision was tainted by jurisdictional error in that the Minister failed to take the above relevant matters into consideration when arriving at the visa cancellation decision. The Minister has failed to take into consideration the fact that the applicant’s entire family resides in Australia and that Morgani could not rely on anyone if he was deported. The Minister has failed to consider the fact that the applicant’s partner will have to move to Italy if they are to marry. No consideration was given to the fact that Morgani cannot speak or read Italian or to the fact that Morgani’s father is 80 years old and that he retains close ties with his family. To remove the applicant from Australia would be extremely detrimental to his father’s health.
In making the decision the Minister seems to have rigidly followed the statutory provisions of s 499 of the Act and in doing so failed to give independent consideration to the merits of the applicant’s case. He thereby unlawfully fettered the discretion conferred on him by subs 501(2). Such a decision to revoke the applicant’s visa would be unreasonable in accordance with the principles enunciated in the Wednesbury case.
The Minister has made a decision that is unreasonable given the relevant facts of Morgani’s position.
The Minister’s decision is unreasonable in the sense that the applicant would be required to enter a country without any residence, knowledge of the country or any ability to communicate with people of that country.”
Mr Begg complained that the Minister, in his reasons for decision which are found contained in an affidavit of Angela Margaret Nanson dated 19 May 2003, over-emphasised the risk of recidivism. In this regard the Minister said:
“16 I considered the pattern of Mr Morgani’s criminal behaviour that encompassed a period of three years. Mr Morgani’s offences were conducted primarily to support his drug habit. I also noted that Mr Morgani had participated in a “methadone maintenance and reduction program” and sought counselling and health professional help.
17 Mr Morgani had, however, demonstrated a consistent pattern of criminal conduct for over eleven years. I assessed that there was a continuing risk that Mr Morgani might re-offend. I placed a substantial weight on his risk of recidivism.”
Mr Morgani begs to differ from the Minister. He says that his risk of recidivism is low because his crime was the product of his heroin habit and that heroin habit is no longer a problem to him. That may be correct. The Minister may be wrong in his assessment of the risk but he is acting in an administrative capacity and provided that he is not wrong in a jurisdictional sense a court cannot interfere with such a finding. The Minister clearly indicates the evidence from which he drew his view, namely the existence of a pattern of criminal behaviour of over eleven years. I am unable to find that there is anything in the Minister’s conclusions on this point which would allow me to review the decision. To do so would merely be to substitute views that Mr Begg may have persuaded me to hold for those of the Minister.
Mr Begg also asks me to find that the Minister placed too much weight on the national interest and not enough on other personal circumstances. He believed he could find support for this view in Re Aksu v Minister for Immigration [2001] FCA 514 at [24] and [32]. He argued that the relevant direction to the Minister fettered the Minister in his discretion by requiring him to give overriding weight to the national interest and the protection of the Australian community and therefore not to consider any other matters as outweighing those.
It should be stated immediately that Aksu was concerned with a direction No 17 and that the current direction is No 21. It is still correct to say that the Minister cannot treat himself as being bound by any direction and must look at each case on its individual merits in order properly to exercise his discretion. The Minister notes at [10] of his reasons that he is not bound by his own general direction but because he believed that the direction properly indicated how the powers and functions of the kind here should be exercised he did follow it. But that is not to say that the Minister did not take into account all the matters raised by Mr Morgani in his own submissions. There is really no basis for any suggestion that that occurred. It is not necessary for the Minister in his reasons to rehearse every submission and then deal with it. Provided it can be clearly seen from the document as a whole that these matters were considered that is sufficient. In Minister for Immigration v W157/00A (2002) 72 Ald 281 at [51] Branson J notes Re Rudduck, Minister for Immigration; Ex parte Truong (22 March 2001 unreported (HC)) where Hayne J indicated that a notice, when the document is read as a whole, complies with s.501G(1)(e) if it:
“(a) reveals the matters that were before the Minister;
(a) assigns at least to some of them particular weight, and’
(b) confirms that the decision of the Minister was based only on that information.”
The Minister is not obliged to set out every matter he took into account when making his decision and the court should avoid reconsideration of the merits of a decision when reviewing the reasons for a decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259. I am unable to say as Dowsett J did in Aksu that it is clear that the Minister’s decision as to pre-eminence of the primary considerations was not based upon his assessment of the case. I do not think that I am able to provide review on these grounds.
Finally, Mr Begg made an argument that the decision of the Minister was tainted with Wednesbury unreasonableness. In Griffiths v Minister for Immigration [2003] FMCA 249 Federal Magistrate McInnis helpfully set out what I believe to be the current views of the Australian Courts in relation to Wednesbury unreasonableness particularly in the migration sphere. He quoted extensively from Singh v Minister for Immigration (2000) 105 FCR 453, in particular:
“24. However, as the primary judge pointed out, a reviewing court is not entitled to find Wednesbury unreasonableness simply because the court disagrees – even profoundly disagrees – with the weight given by the decision maker to the various factors relevant to his or her decision. There must be more than that…
`There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible – it is right. The validity of a local rule does not depend upon the soundness of a council's opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court.”
The matters mentioned by Mr Begg go only to the soundness of the Minister’s decision. It has been suggested that the doctrine of Wednesbury unreasonableness is in any event not enough in a case such as this. That is because any finding is a finding concerning a step along the fact finding process path. What has got to be looked at is the decision. So, if the Minister came to a conclusion concerning the applicant’s risk of recidivism on a basis that could be considered to be Wednesbury unreasonableness (which I do not consider that it was) it would also have to be shown that it was reasonable to assume that if the Minister had not come to that conclusion he might have changed his ultimate decision. There is no suggestion made here that that was the case.
In Singh v Minister for Immigration [2000] FCA 485; (2000) 173 ALR 313 Mathews J considered whether the Minister’s decision on recidivism was unreasonable in the Wednesbury sense. At [82] Her Honour reiterated what Gleeson CJ and McHugh J said in Minister for Immigration v Eshetu (1999) 162 ALR 577 at 587:
“Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable”, or even “so unreasonable that no reasonable person could adopt it.” If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.
In Puhlhofer v Hillingdon London Borough Council Lord Brightman said:
“Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom parliament has entrusted the decision-making power save in case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”
And at [86] Her Honour held:
“…it is one thing to question the Minister’s reasoning process and disagree with his conclusion. It is an entirely different thing to say that it was a conclusion which no rational person could have reached. There were after all, important considerations of public policy taken into account by the Minister.”
This was also confirmed in Re Minister for Immigration; Ex parte S20/2002 [2003] HCA 30 at [5]:
“As was pointed out in Minister for Immigration and Multicultural Affairs v Eshetu, to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.”
And as put by Kirby J at [128]:
“A conclusion that a process of reasoning is perverse, or illogical, or irrational, ordinarily would not, and in any case should not, be based upon mere disagreement with the outcome reached by the administrator. The disagreement of a judge with the merits or conclusions of the decision reviewed is, at least in theory, immaterial. Rather, attributes such as “perverse”, or “illogical”, or “irrational” must be properly linked to the applicable statutory and decision-making context in order to be informative about the nature of the error identified.”
I am not satisfied that there was a material error nor that the decision was unreasonable in the Wednesbury sense.
For all these reasons I am obliged to decline to review the Minister’s decision. I dismiss the application. I order that the applicant pay the respondent’s costs in the sum of $4,250.00 pursuant to Part 21 Rule 21.O2 (2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 28 August 2003
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