Naidu v Minister for Immigration (No.2)
[2004] FMCA 142
•12 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAIDU v MINISTER FOR IMMIGRATION (No.2) | [2004] FMCA 142 |
| MIGRATION – Review of decision of Minister – visa cancelled under s.501 Migration Act – where applicant’s submissions to Minister included letter stating that he had a girlfriend who he was going to marry – where applicant stated in questionnaire that he was single – whether applicant should have been allowed to make representations that the decision should have been made by a delegate rather than the Minister – whether Minister failed to take into account relevant considerations – whether the material provided by the Minister misled the applicant as to the importance of his relationship with his girlfriend and as to how the Minister would deal with the seriousness of applicant’s crimes. |
Migration Act 1958, s.501
Naidu v MIMIA [2003] FMCA 539
Surinakov v Ministerfor Immigration Local Government & Ethnic Affairs (1991) 33 FCR 87
| Applicant: | VIJENDRA NAIDU |
| Respondent: | MINISTER FOR IMMIGRATION & INDIGENOUS & MULTICULTURAL AFFAIRS |
| File No: | SZ 364 of 2003 |
| Delivered on: | 12 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 12 March 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Solicitors for the Applicant: | Yandell Wright Stell |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 364 of 2003
| VIJENDRA NAIDU |
Applicant
And
| MINISTER FOR IMMIGRATION & INDIGENOUS & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is a case in which the applicant seeks review of a decision of the Minister made under s.501 Migration Act1958 pursuant to which the then Minister decided to exercise his discretion and cancel the applicant’s transitional (permanent) visa.
On 23 March 2001 the applicant was sentenced to a term of 3 years imprisonment having been found guilty of two counts of armed robbery and one of assault with intent to rob. Drugs were an element in the crime. Having been found guilty of these offences he was a person to whom s.501 Migration Act applied by virtue of s.501(6)(a) and s.501(7)(c). The applicant is a citizen of Fiji who was granted a permanent visa (class 833) on 16 November 1999. He is not a citizen of Australia.
On 21 August 2002 Mr Naidu was sent a letter by DIMIA [CB 16-17] informing him that it had it had come to the attention of the Department that his visa may be liable for cancellation under s.501. The letter continued:
“The Minister has advised that he will be personally making the decision whether to cancel your visa under subsection 501(2). This will mean that should the decision be to cancel your visa you will not be entitled to have this decision reviewed by the Administrative Appeals Tribunal (AAT).
Before the Minister considers whether to cancel your visa under subsection 501(2) you are provided with an opportunity to comment. Matter to be taken into account include the following:
· Your criminal history. A copy is attached for your information.
· The Judge’s comments
In reaching the decision whether to cancel the visa the Minister will have regard to the matters noted 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. …”
The applicant responded to the letter by completing the questionnaire and obtaining the assistance of a Registered Migration Agent. He provided references, statutory declarations and a letter from himself. On page 1 of the questionnaire [CB 27] there is a request for personal details. The heading says:
“The purpose of this questionnaire is to guide you in making known your personal circumstances and anything that you wish to be taken into account when the Minister or Delegate considers your case."
It asks questions of the applicant’s marital status to which he responded that he was single and then asked:
“If you have a spouse/defacto or partner please provide details below.”
The applicant indicated that the questions which then followed were not applicable to him. However, in the letter which he wrote to the Minister [CB 53] he said:
“I’m living very good and happy life with my family and my girlfriend that I am about to marry…”
The written material provided by third parties did not include anything from his girlfriend/fiancee.
The direction which was referred to in the letter to the applicant and was made exhibit 1 to these proceedings deals with the matters which are taken into consideration by the Minister. One of the matters under the heading “Other Considerations” is
“(b) Genuine marriage to, or defacto or inter-dependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen.”
When the matter came to be considered by the Minister he was provided with a minute from his Department which is in a form familiar to persons exercising this jurisdiction. The minute commences at [CB 64]. At [CB 72] the author under the heading “Risks of Recidivism” says at [72]:
“In his original submission Mr Naidu provided details that he did not have children and was single. On his handwritten letter received through probation and parole he mentions a relationship. To date no submission has been received from his girlfriend.”
The submission then continues with the extract found at [CB 72] and adds the words:
“I am (sic) close to my family and my girl that I am (sic) gonna marry.”
At [CB 78] the Minister indicates that he has taken all the relevant matters into consideration and Mr Naidu’s comments and had decided to exercise his discretion under subsection 501(2) of the Act to cancel the visa and did so.
On 10 July 2003 the Minister on the advice of his department prepared a statement of reasons found at page 2 of the Supplementary Court Book. This says at paragraph 6:
“The statement of reasons should set out the reasoning process you undertook in deciding to cancel Mr Naidu’s visa. Therefore, you must personally consider whether your statement of reasons accurately sets out your reasoning process to the best of your recollection. In this regard we have attached a draft statement of reasons that may accord with your recollection of your reasoning process.”
The Minister’s reasons deal with his consideration under the heading Protection of Australian Community, Expectations of the Australian Community and Other Considerations. There is no reference in these to the applicant’s relationship with his girlfriend.
The above was the factual matrix within which this application was considered. Prior to the hearing on 12 March 2004 there was an interlocutory application for discovery of documents held by DIMIA. The purpose of that application was to obtain from the department information as to whether the Minister or someone on his behalf had made the decision that the matter would be decided by the Minister alone. In a short judgment, Naidu v MIMIA [2003] FMCA 539, I dismissed the Notice of Motion saying:
[5] Mr Turner, who appears on behalf of the applicant, argues that it is important to know who made this first preliminary decision. He agrees that if the decision was made by the Minister then that is the end of the matter. There is no review. But if the preliminary decision was made, not by the delegator but by the delegatee, then he argues, such a decision is open to review.
[6] I accept that there may be some vice in a decision of this type being made by the delegatee but I am not convinced that it can be established that this could possibly happen and I am particularly unconvinced that it could be established by the production of the documents sought under this notice of motion.
[7]The Minister is the head of the department. The ultimate responsibility for all decisions within the department rests with the Minister. Even if a list was drawn up by a delegate containing names whose cases should be considered by the Minister, it is always open to the Minister to reject that list. In the end, the decision is one that is being made by the Minister. The Minister decides both to accept the recommendation, if such is made, of the delegate that he or she should personally consider a particular case and then considers it.
[8] Whilstsoever the Minister retains the power to decline to accept a recommendation of his delegate, then it can only be said that the final decision rests with him or her. In these circumstances, I cannot see any utility in obtaining discovery of the documents required by Mr Turner or requiring the Minister to answer the question set by him.
To the extent that it is not implicit from my reasons, I am of the view that the final responsibility for the decision was that of the Minister whether or not he adopted what I had previously described as a “recommendation” or whether he adopted a “decision”. At all times it was open to him not to adopt that decision or recommendation.
In his written submissions counsel for Mr Naidu formally rehearses the arguments that were previously put to me in this matter. He argues that the applicant was not provided with procedural fairness because he was not given an opportunity to make representations about that decision. I accept that the decision was an important one and had serious effects for the applicant. If the Minister had referred the matter to a delegate for consideration then there would have been an appeal to the AAT on the merits. No such appeal is available to this applicant. Mr Naidu submits that if the first decision was (as I have found) made by the Minister then it should be subject to review because the Minister denied the applicant procedural fairness by not allowing him to make representations that the decision should have been made by the delegate. I am unable to see that this is a failure to provide the applicant with procedural fairness. The legislation is quite clear. It provides for two methods making decisions under s.501 and there is no procedure allowing a person potentially affected by the decision to make representations. The applicant did not provide me with any authority to the effect that a person affected by decisions of government should be entitled to make representations before those decisions are made where those decisions are procedural in nature.
I am unable to see that the second obligation exists.
The applicant claims that the respondent failed to take account of relevant considerations being the relationship between himself and his girlfriend. The applicant argued that this was a relevant consideration: Surinakov v Ministerfor Immigration Local Government & Ethnic Affairs (1991) 33 FCR 87. The applicant states that this matter was not considered by the Minister because if it had been considered it would have formed part of his reasons for decision which he had stated represented his reasoning process to the best of his recollection.
I am not satisfied that the Minister did not consider this matter. Firstly it was a matter that was brought directly to his attention in the minute from his departmental officer. That minute was relied on by the Minister to come to the conclusion that he did at the end of the document. The statement of reasons provided later is only a statement of reasons to the best of the Minister’s recollection. The fact that a matter may have been omitted could be because it was not considered or because it was considered and found of no importance or because he did not recollect that it was considered. Bearing in mind that the applicant had before him the questionnaire, the direction under s.499(2), the advice of a migration agent, and the opportunity, clearly stated, to provide the Minister with all information that the applicant considered relevant and important, he singularly failed to give these matters the status which he now says they deserve. I think that the most likely occurrence was that the Minister did not give the relationship very much weight. He was entitled to give it no weight at all because there was no proof that the girlfriend/fiancee was an Australian citizen, permanent resident or eligible citizen of New Zealand. I would not be prepared to grant review on this basis.
The applicant then alleges that he was misled by the Minister in relation to understanding the importance of the relationship with his girlfriend. That is because the questions in the questionnaire and the matters raised in the s.499(2) Direction deal only with spousal relationships and therefore exclude the relationship between boyfriend and girlfriend. Firstly I do no think that this is the case. The questionnaire refers to more than just spousal relationship and, as I have previously recited, the applicant was given an opportunity to put any matters he considered important before the Minister and he had the assistance of a migration agent as to what might be important.
The applicant alleges that he was misled as to the manner in which the Minister would deal with the question of the seriousness of his conduct. The alleged vice here is that the Minister in his statement of reasons an [SCB 8] said:
“In reaching my decision, however, I concluded that the serious nature of Mr Naidu’s crimes particularly as it involved threats against young people, the disruption these crimes have caused others and the expectations of the Australian community outweighed all other considerations above.”
The applicant says that had he known that the respondent would have given primacy to the serious nature of the crimes and the disruption that they had caused to the Australian community he may have provided different submissions and evidence to the respondent. The main thrust of the applicant’s argument was the reference to the disruption the crimes have caused others. The applicant commenced his submissions with the suggestion that there is no evidence regarding this alleged disruption. That is just not the case. The judge’s comments make it clear that the crime committed by Mr Naidu caused severe disruption to those young people who were his victims, even if the applicant did not use a real gun in the robbery. The applicant then suggested that he did not understand the primacy of that aspect of the matter. I am not satisfied that it was a matter of primacy. The Minister said that:
“ I found that Mr Naidu’s criminal conduct was of a serious nature and I gave this consideration great weight.”
It was the serious nature of the conduct that was the prime consideration. The disruption was an element of the seriousness. I am not satisfied that the applicant was in any way disadvantaged in the manner in which this was dealt with.
In all the circumstances I am unable to find any grounds upon which this decision of the Minister can be reviewed. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
0