Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 3)
[2004] FCA 750
•11 JUNE 2004
FEDERAL COURT OF AUSTRALIA
Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 3)
[2004] FCA 750MIGRATION – judicial review – cancellation of visa – character test – substantial criminal record – failure to consider whether visa holder failed to satisfy Minister that he passed character test – jurisdictional error – no statement of reasons – issues document – evidence of course of reasoning – finding of failure to pass character test – no consideration in that finding of visa holder’s evidence – reference to discretionary factors – reference to visa holder’s evidence without analysis – limited evidence based upon letter that visa holder convicted of murder at age 15 in Yugoslavia – conflicting evidence from visa holder – conflicting official records – evidence that conviction expunged – relevance of evidence acquired after decision and after proceedings commenced relevance to jurisdictional error at time of decisions – relevance to discretion to grant relief – application allowed
Migration Act 1958 (Cth) s 501(2), s 501(6), s 501(7), s 501(10), s 501(12)
Judiciary Act 1903 (Cth) s 39B
Administrative Decisions (Judicial Review) Act 1977 (Cth)Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 applied
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359 citedRIFAT NEZOVIC AND ANOTHER v THE MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
W47 OF 2003FRENCH J
11 JUNE 2004
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W47 OF 2003
BETWEEN:
RIFAT NEZOVIC
FIRST APPLICANTSEIDA NEZOVIC
SECOND APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
FRENCH J
DATE OF ORDER:
11 JUNE 2004
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.There be an order in the nature of certiorari quashing the respondent’s decision to cancel the first applicant’s visa.
2.There be an order in the nature of mandamus requiring the respondent to reconsider the cancellation of the first applicant’s visa according to law.
3.The respondent is to pay the applicants’ 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
WESTERN AUSTRALIA DISTRICT REGISTRY
W47 OF 2003
BETWEEN:
RIFAT NEZOVIC
FIRST APPLICANTSEIDA NEZOVIC
SECOND APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
FRENCH J
DATE:
11 JUNE 2004
PLACE:
PERTH
REASONS FOR JUDGMENT
Introduction
On 17 January 2003, the Minister for Immigration and Multicultural and Indigenous Affairs cancelled the visa of Rifat Nezovic who had come to Australia with his wife Seida, to live in 1994. The cancellation was based upon a finding by the Minister that Mr Nezovic had been convicted of murder at the age of 15 while still in the former Yugoslavia and had been sentenced to imprisonment for between one and five years. He was, on that basis, found to have a substantial criminal record and to have failed to pass the character test prescribed in s 501 of the Migration Act 1958 (Cth) (‘the Act’).
Mr Nezovic challenged the cancellation decision on various grounds. Primarily it is said that the Minister failed to ask himself the questions he was required to consider in exercising the power of cancellation under s 501(2) of the Act. It is said that he did not consider whether Mr Nezovic had failed to satisfy him that he passed the character test prescribed in s 501. For the reasons that follow I find that that ground is made out, that the cancellation decision should be set aside and the matter reconsidered by the Minister.
The decision to grant the relief sought by Mr Nezovic and his wife in this case is based upon the way in which the Minister approached the materials before him at the time he made the decision to cancel Mr Nezovic’s visa. Since that decision and since the commencement of these proceedings further evidence has been gathered by the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) to support the view that Mr Nezovic was convicted of murder in 1982 as alleged. This does not however cure the error made by the Minister at the time of the cancellation decision. In particular, it leaves open the possibility, not considered by the Minister, that Mr Nezovic’s conviction was expunged under the provisions of the relevant penal law in Yugoslavia. This was a matter that was before him on materials from the Australian Embassy in Belgrade but apparently not considered. If that were the case it is arguable that the conviction and detention order that was made could not be taken into account in determining whether Mr Nezovic had a substantial criminal record for the purposes of the Act – see s 501(10). The question also remains open whether the detention order which in terms referred Mr Nezovic to an ‘educative-corrective home’ was a sentence of imprisonment within the meaning of s 501.
Factual and Procedural History
Rifat Nezovic and his wife, Seida, migrated to Australia from the former Yugoslavia in March 1994. He was born on 23 October 1966. She was born on 23 February 1971. Both were born in the former Yugoslavia. Each was the holder of a class 209 resident T100 visa. They applied for Australian citizenship in 1996. At an interview with Mr Graham Jackson of the Department of Immigration on 2 September 1996, Mr Nezovic said that when he was 15 years old he had been in a children’s home at Krusevac from 1982 until 1987. He went to the home, he said, because his father had been convicted of murder. It was put to him by Mr Jackson however that information had been given to the Department that Mr Nezovic had been convicted of murder himself. He denied this.
At a further interview on 4 November 1996, Mr Nezovic produced to Mr Jackson two certificates stating that he had no convictions. One dated 9 October 1996 was purportedly issued by the Municipal Court in Tutin in Yugoslavia. The other, dated 14 October 1996, was purportedly issued by the Ministry of Internal Affairs in Novi Pazar in Yugoslavia.
On 4 November 1996, Mr Jackson sent a message to the Australian Embassy in Belgrade saying:
‘I formally interviewed Mr Nezovic today. In essence denied conviction and of being in detention, prison. He discussed what was prison. He seemed to acknowledge a difference in detention as a minor ie under 16.
I sighted the originals of two documents that follow. Mr Nezovic suggested they prove he has no conviction. He declined to give me the originals. They would have been better for comparison purposes. I made comment to him on the “weight” that is given to a formal note between countries.
Can you make comment on them or reapproach the authorities for any comment.’
There was evidently no further communication between Mr Nezovic and the Department until 8 July 1997 when his lawyer, Mr Walker, spoke to a Mr Bryan at the Department and was informed that Mr Jackson was no longer handling the matter relating to the Nezovics. Mr Walker wrote to the State Director of the Department in Western Australia on 8 July 1997 asking to be advised about the current position in their investigations. He received no rely. Nearly four years passed in which nothing appears to have happened. Mr Walker then rang the Department on 6 March 2001 and spoke to another officer who advised that he would look into the matter and get back to him. A promised response did not eventuate. Mr Walker left a message on 20 July 2001 by voice mail for the officer but again received no response. On 17 June 2002, he wrote to the State Director pointing out his attempted contacts and enclosing his letter of 8 July 1997. He said, inter alia:
‘The matter concerns applications for Australian citizenship made in or about 1996. It appears that no decision has been made in respect of either application.
I note that in a file note dated 3 September 1996, Mr Graham Jackson noted his undertaking given to Mr Nezovic that his inquiry would be completed within one month.
All of this appears most unsatisfactory. Almost five years after my letter to you, I still await a response.’
Mr Walker’s letter did succeed in eliciting a response. On 20 June 2002, Ms Hunter of the Cancellation Section of the Department sent Mr Nezovic, care of Mr Walker, a Notice of Intention to Consider Cancelling his Visa. The notice invited comment from Mr Nezovic before the Minister considered whether to cancel his visa under s 501(2).
A submission was put on Mr Nezovic’s behalf by Mr Walker on 11 July 2002 saying that he denied that he had any substantial criminal record and that although his father had been convicted of murder, he had not. It was said on his behalf that he had been placed in a juvenile hostel in the care of the State and not in any penal facility. His mother was not available to care for him and no other relative was in a position to provide for his care.
On 21 October 2002, Mr Walker sent to the Department a letter from a lawyer in Novi Pazar in Yugoslavia. In his covering letter Mr Walker summarised the effect of the letter from the Yugoslav lawyer thus:
‘It confirms that the corrective behavioural centre in Krusevac is not used for juveniles convicted of serious criminal offences. I note that the original allegation against Mr Nezovic claimed that he had served a custodial sentence in Krusevac. That claim must now be rejected. The balance of the allegations made against Mr Nezovic must, I submit, be rejected in all the circumstances.’
The letter from the Yugoslav lawyer said, inter alia:
‘A Specialized institution that applies corrective behavioral measures in the Federal Republic of Yugoslavia is the Corrective Behavioral Centre in Krusevac. In this institution exclusively reside juveniles who have been ordered to receive behavioral measures.’ (sic)
Referrals to behavioral corrective centres for behavioral measures must be differentiated from juvenile jails that are ordered towards juveniles with substantial criminal behaviour. These persons are serving their sentences in the juvenile jail in the Criminal Corrective Centre located in Valjevo.’ (sic)
On 9 January 2003, a departmental Issues Document was put to the Minister for Immigration and Multicultural and Indigenous Affairs seeking his decision on whether Mr Nezovic’s visa should be cancelled pursuant to s 501(2) of the Act. It was put to the Minister in the Issues Document that on 30 June 1982 Mr Nezovic had been sentenced by the Novi Pazar District Court for a ‘section 501(7)(c) applicable offence’ namely ‘1 charge of murder, imprisonment for a period of ‘1 to 5 years’.’ At the end of the Issues Document in Part E there was a number of optional paragraphs for adoption by the Minister. That which the Minister did not cross out when taken together with the introductory words of Part E, read as follows:
‘I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) my Direction under s 499 of that Act and Mr Rifat NEZOVIC’S comments, and have decided that:
...(d)I reasonably suspect that Mr Rifat NEZOVIC does not pass the character test and Mr NEZOVIC 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.’
The Minister signed that decisional option.
By a letter dated 30 January 2003 the Department gave notice to Mr Nezovic of the Minister’s decision to cancel his visa. The letter attached a copy of the Issues Document as signed by the Minister and included the following sentence:
‘I enclose with this Notice:
.a copy of the decision record that sets out the reasons for the decision (other than non disclosable information);’
Mr Nezovic was taken into immigration detention on 7 February 2003.
An application seeking judicial review of the Minister’s decision was filed in this Court on 28 February 2003. The application primarily relied upon the jurisdiction conferred upon the Court by s 39B of the Judiciary Act 1903 although it also made reference to a ground under the Administrative Decisions (Judicial Review) Act 1977 (Cth).
Mr Nezovic was released from immigration detention on 25 March 2003 pending the hearing of his application which at that time was listed for 29 April 2003. On 28 April 2003, the hearing was adjourned to 18 September 2003 and the application was amended in terms of a proposed amended application filed in Court on that day. The Minister then ‘conceded’ that the Decisional Record which had been provided to Mr Nezovic did not amount to a statement of the reasons for his decision of the kind required by s 501G(1)(e). A statement of reasons was said to be under preparation. An affidavit filed on behalf of the Minister also indicated that a request had been made by the Department on or about 14 April 2003 to the Australian Embassy in Belgrade asking that it obtain a copy of the relevant court decision or a record of the court case held at the Novi Pazar Court on 30 June 1982. The Australian Embassy in Belgrade had indicated to the Department that it would take some weeks to complete those inquiries. The hearing of the application was relisted to 2 October 2003.
At the hearing on 2 October 2003, counsel for the Minister sought to put in evidence a copy of what was said to be the Minister’s statement of reasons for the cancellation of Mr Nezovic’s visa. The reasons were exhibited to an affidavit sworn by a solicitor in the office of the Australian Government Solicitor. The tender of the ministerial reasons through the affidavit of a third party was objected to. After hearing argument, I adjourned the hearing of the application with a view to ruling on the admissibility of the statement of reasons. The parties were given leave to make written submissions on that question. On 6 November 2003, I upheld the objection ruling that:
‘The statement of reasons of the respondent dated 28 September 2003 will not be received in evidence, to prove that they were the reasons for the decision under review, unless verified on oath either orally or by affidavit by the person who made the decision and unless the decision-maker is available for cross-examination.’
On 17 February 2004, directions were made for the filing of further affidavits and the application was set down for the continuance of the hearing on 30 April 2004. The matter then proceeded to hearing on 30 April 2004 and judgment was reserved until today.
Statutory Framework
The decision under review was made under s 501 of the Act which provides in the relevant parts:
‘501(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.
…
501(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));
...
Otherwise, the person passes the character test.
501(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...’
...
501(10) For the purposes of the character test a sentence imposed on a person is to be disregarded if:
(a)the conviction concerned has been quashed or otherwise nullified, or
(b)the person has been pardoned in relation to the conviction concerned.
...
501(12)In this section:
court includes a court martial or similar military tribunal.
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.’
Cancellation decisions made under s 501 are privative clause decisions for the purposes of s 474(1) of the Act which provides:
‘A privative clause decision:
(a) is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.’
The Effect of the Privative Clause
The operation of s 474 and the extent to which decisions purporting to be made under the Act are reviewable was considered by the High Court in Plaintiff S157/2002 v Commonwealthof Australia (2003) 211 CLR 476. The propositions emerging from that case, in the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ, were summarised by the Full Court in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359 and include the following (at 372):
‘9.The words “under this Act” in s 474(2) are not apt to refer either to decisions purportedly made under the Act or decisions that might be made under the Act.
10.The expression “decision[s] … made under this Act” appearing in s 474 must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act: at [76].
11.An administrative decision which involves jurisdictional error is ‘regarded, in law, as no decision at all’: at [76].
12.If there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in s 474(2) as “a decision … made under this Act” and is, thus not a “privative clause decision” as defined in s 474(2) and (3) of the Act: at [76].
13.Section 474 requires an examination of limitations and restraints found in the Act. There will follow the necessity to determine whether as a result of the reconciliation process the decision of the tribunal does or does not involve jurisdictional error and accordingly whether it is or is not a “privative clause decision” as defined in s 474(2) of the Act: at [78].’
In the case of jurisdictional error the purported decision is not protected by the privative clause and is amenable to review in this Court under s 39B of the Judiciary Act.
The Grounds of Review
The Nezovics’ application was amended in Court on 28 April 2003. The grounds of the application are as follows:
‘1.0In making or purporting to make the decision the Respondent acted without or in excess of jurisdiction, in that he failed to understand and to discharge the requirements of Section 501(2) of the Migration Act 1958 (“the Act”) by addressing the questions which he was required to address, namely:
1.1whether he reasonably suspected that the First Applicant did not pass the character test (“the first question”); and, if so,
1.2whether the First Applicant had satisfied him that he passed the character test (“the second question”); and, if not;
1.3whether, in the exercise of his discretion, he should cancel the visa of the First Applicant (“the discretion”).
Particulars
(a)A submission was prepared by departmental officers of the Respondent for his use in making the decision;
(b)It should be inferred that the submission constituted the only material provided to and considered by the Respondent for the purpose of making the decision;
(c)The Respondent, in breach of Section 501G(1)(c) of the Act, failed to give to the First Applicant a written notice that sets out the reasons for the decision;
(d)It should be inferred that the process of reasoning exposed in the submission was adopted by the Respondent;
(e)The structure of the submission reveals that the Respondent failed to understand that the decision-making task had the three distinct components referred to above, and failed to address each of them as separate and distinct matters.
2.0In making or purporting to make the decision the Respondent acted without or in excess of jurisdiction, in that he acted solely on the basis of material which failed to present to him, or even disclose, the true controversy and the true question for decision, namely whether the First Applicant in fact had been convicted of murder.
Particulars
(a)The Applicants repeat Particulars (a) to (d) inclusive to Paragraph 1.3 above;
(b)In those parts of the submission which were directed respectively to the first question and to the second question, there was no reference:
(i)to the fact that the First Applicant had disputed and was disputing that he had been convicted of murder; or
(ii)to the evidence provided by the First Respondent to support his assertions that he had not been so convicted;
which matters were instead referred to only in the part of the submission directed to the exercise of the discretion.
(c)The first and second questions were presented in those parts of the submissions as questions admitting in each case of only one answer, namely that which would be adverse to the First Respondent.
3.0In making or purporting to make the decision the Respondent acted without or in excess of jurisdiction, in that he failed altogether to consider the question of the proper characterisation of the offence of which the First Applicant was said to have been convicted when, on the material, such consideration was required.
Particulars
(a)The Applicants repeat Particulars (a) to (d) inclusive to Paragraph 1.3 above;
(b)The information relied upon in the submission included that the Article under which the First Applicant was said to have been convicted applied to a person who deprived another person of life;
(c)Such information alleged that the First Applicant had been sentenced to imprisonment for a period between one and five years.
4.0In making or purporting to make the decision the Respondent acted without or in excess of jurisdiction, in that he misunderstood the nature of his discretionary power to cancel a visa under s 501(2) of the Migration Act 1958.
Particulars
The Respondent wrongly understood that the power was a power to decide not to cancel a visa, when in fact it is a power to decide to cancel a visa.’
The Issues Document
The departmental Issues Document put to the Minister as a matter of fact that Mr Nezovic had been sentenced by the Novi Pazar District Court to a term of imprisonment for murder for a period of between one to five years. He was said to have served four years, four months and one week in a penal correction institution. A statement from the Federal Ministry of Foreign Affairs of the Federal Republic of Yugoslavia, dated 20 June 1996, was annexed. It said:
‘Nezovic ... Rifat of father Zuka, born on 23 October 1966 at Raduhovce/Tutin, has been sentenced by decision K28/82 of the District Court in Novi Pazar of 30 June 1982 for the criminal act punishable under Article 47/1 of the Criminal Code of the Socialist Republic of Serbia to between one to five years in a penal-correctional institution which he served in the period from 4 September 1982 to 12 January 1987.’
A letter from the Consulate General of the Federal Republic of Yugoslavia in Sydney dated 24 September 1996 was also annexed and stated that:
‘[Please] be advised that the name of the offence for Article 47/1 of the Criminal Code of the Socialist Republic of Serbia is murder.
It reads: MURDER
Article 47(1) A person who deprive (sic) another person of life will be sentenced to a prison to serve a minimum of five years.’
It was then put, in the Issues Document, that it was ‘open for [the Minister] to find on the above facts that there [was] a reasonable suspicion that Mr Nezovic [did] not pass the character test due to the fact that he [had] been sentenced to a term of imprisonment of 12 months or more’.
The next section of the Issues Document was headed ‘Evidence of Grounds’. The first item of such evidence was said to be a copy of Mr Nezovic’s Australian Criminal History contained at Annex B to the Issues Document. That criminal history indicated that he has no convictions for any offence in Australia. The second piece of evidence was a copy of the statement from the Federal Ministry of Foreign Affairs of the Federal Republic of Yugoslavia dated 20 June 1996. The third piece was the letter from the Consulate General of the Federal Republic of Yugoslavia in Sydney dated 24 September 1996. These three documents comprised the sum total under the heading ‘Evidence of Grounds’.
The next subheading in the issues document was ‘Finding Against Character Test’. This contained two very short paragraphs each comprising one sentence. The first was simply a repetition of the statement that Mr Nezovic had been sentenced by the Novi Pazar District Court in respect of the offence of murder and imprisoned for the term set out above. The document then said:
‘[11]Based on the above information it is open for you to find that Mr Nezovic has a substantial criminal record and therefore cannot pass the character test.’
The next heading was ‘DISCRETION’. Up to this point there was no reference at all to evidence provided by Mr Nezovic that he had not been convicted of the offence alleged. Reference to these matters arose only after the completion of the section headed ‘DISCRETION’ under a further section entitled ‘OTHER MATTERS RAISED BY/ON BEHALF OF MR NEZOVIC’.
Under the heading ‘DISCRETION’ the Issues Document stated at [12] and [13]:
[12] If you are satisfied that Mr Nezovic does not pass the character test you must consider the exercise of your discretion to decide whether Mr Nezovic should be permitted to remain in Australia. Section 501 of the Migration Act 1958 provides you with a discretion to cancel a visa. You have issued Directions under s 499 to guide delegates and the AAT in the exercise of that discretion. It is clear from a number of decisions of the Federal Court that, when you decide a case personally, you are not bound by your s 499 Directions. In making a decision on this case it is open to you to be guided by the factors set out in the Direction. However, in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors.
[13] Mr Nezovic was notified by registered mail to his representative, Mr Stephen Walker on 20 June 2002 of the intention to cancel the visa held by him pursuant to s 501 of the Act. The cancellation ground was set out in the notice and he was invited to submit any comment that he believed relevant to the consideration of the issue of visa cancellation. Mr Nezovic responded to the invitation by letter received on 11 July 2002.
A copy of Mr Nezovic’s response is at ANNEX C.
A copy of the Notice of Intention to Cancel given to Mr Nezovic is at ANNEX D.’The Issues Document then referred to the various considerations set out in the Ministerial Direction. Under the heading ‘Primary Considerations’ the following matters were set out:
‘Protection of the Australian Community
(a) seriousness and nature of conduct
(b) likelihood that the conduct may be repeated (including any risk of recidivism)
(c) General deterrence
The Expectations of the Australian Community
The Best Interests of the Children
Other Considerations
Other International Obligations’
The document finally turned to ‘Other Matters Raised By/On Behalf of Mr Nezovic”. It was at this point, for the first time, that it addressed Mr Nezovic’s denial that he had been convicted of murder. In this context the document again referred to the statement from the Federal Ministry of Foreign Affairs of the Federal Republic of Yugoslavia dated 20 June 1996 and the letter from the Consulate General of Yugoslavia in Sydney dated 24 September 1996. It then referred to the certificates obtained by Mr Nezovic which were called in the Issues Document ‘Police Certificates’. The translations were differently presented from those referred to earlier, but were to like effect, namely that Mr Nezovic had no convictions. Reference was also made to a statement from the Ministry of Foreign Affairs in Yugoslavia dated 6 January 1997 that the certificate of 14 October 1996 asserting that Mr Nezovic had not been convicted was authentic. There was then a fax from the Australian Embassy in Belgrade noting that the statement from the Ministry of Foreign Affairs mentioned nothing about the information provided in the certificate and speculating that Mr Nezovic might have contacts in the Internal Ministry in Novi Pazar. A further fax from the Australian Embassy dated 21 January 1997 was quoted in which it was said:
‘You must try to understand that corruption in this country is not unusual and for a fee any document can be produced.’
Another fax dated 7 February 1997 from the Australian Embassy in Belgrade stated that Mr Nezovic was 15 years old at the time of his conviction and had spent four years in a correctional institution for juvenile offenders. It was pointed out that according to local law, if he did not reoffend within a five-year period after his sentence was completed, his conviction would be deleted from the records. No particular conclusion was offered in respect of these various items of ‘evidence’ put before the Minister. Nor was his attention drawn to s 501(10) of the Act whereby a sentence imposed upon a person is to be disregarded if the conviction concerned has been quashed or otherwise nullified.
Ground 1 – Whether the Minister Failed to Address the Questions he was Required to Address by Section 501
The Minister, having cancelled Mr Nezovic’s visa, failed to comply with the statutory obligation under s 501G to send him a statement of reasons for his decision. The Issues Document and the Decisional Record did not constitute such a statement as they left open choices, at least in respect of the discretionary factors referred to earlier. However the letter to Mr Nezovic which advised him of the cancellation included the Issues Paper with the Decisional Record and said it ‘sets out the reasons for the decision (other than non disclosable information)’. I am prepared to infer from the covering letter and the Minister’s signature on the Decisional Record, and the absence of any evidence to the contrary, that on the balance of probabilities he adopted the approach to the cancellation of Mr Nezovic’s visa which was set out in the Issues Document presented to him.
Accepting, as I do, that the Minister did apply the approach set out in the Issues Document, his attention was correctly drawn to the provisions of s 501(2), (6) and (7)(c) of the Act. Under the heading ‘Reasonable Suspicion’ he was told as a fact that Mr Nezovic was sentenced to a term of imprisonment for a period ‘between one to five years’ of which he served ‘4 years, 4 months and 1 week in a penal-correction institute’. This was based solely upon the brief statement from the Federal Ministry of Foreign Affairs dated 20 June 1996. That material, it was said, left it open to him to find that there was a reasonable suspicion that Mr Nezovic did not pass the character test. After reference to the evidence, none of which included the contentions advanced by Mr Nezovic and the materials supporting those contentions, the Minister was invited to transmute his reasonable suspicion into a finding that Mr Nezovic had been sentenced to a term of imprisonment for between one to five years, that he thereby had a substantial criminal record, and that on that account he could not pass the character test.
Having crossed that threshold, the Minister was ushered by the Issues Document into the area of discretionary considerations. The ‘other matters’ raised by Mr Nezovic followed those discretionary considerations. No findings were offered for consideration under this heading. Nothing was said to suggest that the ‘other matters’ should be taken into account in determining whether Mr Nezovic passed the character test. As against the one document relied upon to establish that Mr Nezovic did not pass the character test, there were two documents purporting to be from official sources to the effect that he had no convictions and another document testifying as to the authenticity of one of them. Moreover there was the fax from the Australian Embassy dated 7 February 1997 in the following terms:
‘We ... asked for an explanation as to why [the Foreign Ministry of Belgrade] provided us with discrepant information regarding Mr Nezovic’s conviction. Ms Ostojic then told us the following:
Mr Rifat Nezovic was 15 years old at the time of his conviction, and had spent 4 years in a correctional institution for juvenile offenders. According to the local law, if he does not re-offend within a 5 year period after his sentence is completed, his conviction will be deleted from the records. Ms Ostojic proceeded to quote the Article from the Yugoslav Criminal Code, under which Mr Nezovic’s conviction was deleted.’
Had the Minister and those advising him applied their minds to the question whether on the materials Mr Nezovic might pass the character test they might have been expected to say so in the Issues Document. That was not said expressly nor by implication. Indeed the whole tenor of the document supports the proposition that the question of the character test was resolved adversely to Mr Nezovic before any consideration was given to his evidence. Significantly the facts from the Australian Embassy should have immediately raised the possibility that Mr Nezovic’s conviction has been expunged in which case s 501(10) might well have applied so that he could not be found to have failed the character test by reason of a substantial criminal record.
In my opinion the Issues Document leads to the conclusion that the Minister has failed properly to address the questions which he was required to address by s 501(2)(b) namely, whether Mr Nezovic did not satisfy him that he passed the character test. Only when that question was asked and answered would the discretionary considerations arise. It is true, as counsel for the Minister pointed out, that the decisional option signed by him on the decisional choice page included all three questions required to be asked by s 501(2). In my opinion however, it is more probable than not, notwithstanding his signature on that common form option, that the Minister’s actual reasoning followed the approach set out in the Issues Document.
The Minister’s failure properly to address the questions raised by s 501(2) in my opinion amounts to a jurisdictional error which vitiates the cancellation decision. The Nezovics’ application will therefore succeed on ground 1.
Ground 2 – Whether the Minister Acted Solely on Material Which Failed to Disclose the True Questions for Decision
This ground really is another way of raising the issue raised by ground 1.
Ground 3 – The Proper Characterisation of the Offence
The Issues Document proceeded upon the basis that the offence for which Mr Nezovic was convicted was properly described as ‘murder’. The question was raised in submissions whether the provisions of the law under which it was said Mr Nezovic was convicted might encompass lesser forms of homicide such as manslaughter. There was material before the Minister, albeit very superficial, from which he might have concluded that the relevant offence was murder. However unsatisfactory the investigative and reasoning process at the time the decision was made, this ground does not, in my opinion, disclose a jurisdictional error.
Ground 4 – Misunderstanding the Nature of the Power
Counsel made no substantial submissions on this ground at the hearing. There was nothing in the materials before the Court to support the inference that the Minister wrongly understood that the power was a power not to cancel a visa.
Whether Relief Should be Granted
Since the Minister’s decision and since the proceedings have been commenced, the Department has undertaken the kind of more comprehensive investigation that should have been carried out years earlier before the serious step of a cancellation decision was taken. Court records and translations thereof have been obtained. These were exhibited to affidavits put in evidence on behalf of the Minister at the hearing subject to relevance and for the limited purposes of establishing that Mr Nezovic was convicted of having committed a murder and, alternatively, that there is now material which the Minister would be entitled to consider purporting to show that he had been so convicted.
The records and their translations, if accepted, would tend to establish that Mr Nezovic and his father were convicted on 30 June 1982 for the murder of Adilovic Bajro on 12 January 1982 contrary to Article 47 par 1 of the Penal Code of Yugoslavia. The dispositions imposed are shown in the records as follows:
1.For Mr Nezovic’s father ‘A term of imprisonment in the duration of 12 (twelve) years ...’
2.For Mr Nezovic the record as translated does not use the word sentence but ‘Decision of a Verdict of an ‘Educative Measure’.’ The educative measure imposed was ‘referral into an educative-corrective home’. The record then says:
‘This measure will be of at least one year and at most of five years duration, the Court shall decide by bringing a separate Decision concerning its cessation.’
Counsel for the Minister submitted that on this material the Court could conclude that there had been no jurisdictional error as it demonstrated that Mr Nezovic’s claim that it was his father and not he who had been convicted of murder was false. Accepting that as a proposition does not, however, dispose of the question whether Mr Nezovic could have satisfied the Minister that he did not fail the character test had that matter been considered properly or at all on the materials now available. For it is the sentence, rather than the conviction, that is critical to the question whether a person has a ‘substantial criminal record’ within the meaning of s 501(7). I express no concluded view as the matter has not been argued, but the sentence contemplated by s 501(7) is arguably a punitive determination. The record of Mr Nezovic’s case raises the question whether the disposition by the court in Yugoslavia was punitive. The contrast between the ‘sentence’ imposed upon his father and the referral to an ‘educative-corrective home’ imposed upon Mr Nezovic is striking. This consideration also goes to the question of the discretion to grant relief and its utility. I also have regard to the reference in the fax from the Australian Embassy quoted in the Issues Document which suggested that Mr Nezovic’s conviction may have been expunged. This would require consideration of the application of s 501(10). The net effect of these matters is that reconsideration by the Minister could well yield a different outcome even assuming the availability of the materials which have now been put before the Court. In my opinion the relief sought should be granted.
Conclusion
For the preceding reasons, I propose to make an order in the nature of certiorari setting aside the Minister’s decision. There will also be an order in the nature of mandamus that the Minister reconsider the cancellation according to law. The Minister pay the Nezovics’ costs of the application.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate:
Dated: 11 June 2004
Counsel for the Applicants: Mr SA Walker Solicitor for the Applicants: Bayly & O'Brien Counsel for the Respondent: Mr PR Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 April 2004 Date of Judgment: 11 June 2004
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