Pakoti v Minister for Immigration
[2003] FMCA 376
•5 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PAKOTI v MINISTER FOR IMMIGRATION | [2003] FMCA 376 |
| MIGRATION – Application for review of decision under s.501(2) of Migration Act – where applicant was defined as a British subject upon her arrival into Australia – whether applicant was absorbed into the Australian community – whether applicant was an alien under s.51(xix) of the Constitution – whether court should follow narrowest interpretation of definition found by High Court. PROCEDURAL FAIRNESS – Where applicant was advised that protected information would be taken into account – where applicant was not asked to comment upon findings of Minister in relation to her criminal record – whether failure constituted denial of natural justice – remedies. |
Constitution of Australia, s.51 (xix), (xxvii)
Migration Act 1958 (Cth), s.501(2), (6)(a) and (c)(i)
Immigration (Guardianship of Children) Act 1946-1973 (Cth)
Australian Citizenship Act 1948, s.5(1)
Royal Style and Titles Act 1973 (Cth)
Judiciary Act 1903, s.39B
Migration Regulations1994, Reg 2.55(7)
Ex parte Walsh and Johnson; in Re Yates (1925) 37 CLR 36
Re Patterson; Ex parte Taylor (2001) 207 CLR 391
R v Director General of Social Welfare for Victoria; Ex parte Henry and Anor
Re Patterson; Ex Parte Taylor (2001) 207 CLR 391
Nolan v Minister for Immigration and Ethnic Affairs (1998) 165 CLR 178
Steven Edwards Hicks v Minister for Immigration [2003] FCA 757
Long v Minister for Immigration [2002] FCA 1422
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration v Yusuf (2001) 206 CLR 323
Ball v Minister for Immigration [2003] FCA 699
| Applicant: | NATASHA PAKOTI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 190 of 2003 |
| Delivered on: | 5 September 2003 |
| Delivered at: | Sydney |
| Hearing date: | 28 August 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Ms R Pepper |
| Solicitors for the Applicant: | Teakle Ormsby Conn |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That certiorari issue to quash the decision of the respondent of 13 March 2003 to cancel the applicant’s visa.
That the applicant forthwith be released from immigration detention.
That the Respondent pay the costs of the applicant which I assess in the sum of $5,000.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 190 of 2003
| NATASHA PAKOTI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Natasha Pakoti is a 24 year old New Zealand citizen who arrived in Australia with her parents at the age of approximately 1½ years. She received her upbringing and education in Australia. On 20 August 2001 Ms Pakoti was sentenced by Judge Tupman in the District Court of New South Wales to five terms of imprisonment, the longest of which was five years, for a series of armed robberies which occurred over a period between 8-10 August 2000. Ms Pakoti asked that four other offences committed at the same time be taken into account. The offences involved the assault and robbery of young women and a young male at various times during the course of these days. The sentencing Judge noted that the applicant had pleaded guilty and that:
“It seems to me that for all relevant purposes that can be ignored, so that I am sentencing her today in relation to the whole of her criminal behaviour.”
Ms Pakoti informed the sentencing Judge that she had committed these crimes in order to feed her heroin dependency and because she had, following the death in her presence of her previous de facto, entered into a violent relationship with her co-accused.
On 25 October 2002 Ms Pakoti was advised by an officer of the Department of Immigration & Multicultural & Indigenous Affairs that it had come to the attention of the Department that her special category visa may be liable for cancellation under s 501 of the Migration Act 1958 (Cth) on the basis of her substantial criminal history (s.501(6)(a)) and her past and present criminal conduct (s.501(6)(c)(i)).
The letter from the Department, which is found at [CB 22], indicated that matters to be taken into account by the Minister in deciding whether to cancel her visa would include:
·“Protected information as pursuant to s 503A of the Act. A copy of the text of s 503A of the Act is attached.
·The Judge’s comments.
·Your sentence administration report.
This report contains a record of your offences committed during your incarceration. A copy is attached for your information.”
Ms Pakoti responded to the letter on 24 January 2003 by writing a letter of her own. She completed a questionnaire and provided a reference from FYRST, a Salvation Army support program, and the Wayback Committee Limited. She also provided a reference from her natural father and from the TC worker at the Parramatta Transitional Centre. Her mother also wrote.
In accordance with the usual practice in these matters where the Minister has indicated that he intends to take the decision under s.501(2) of the Act himself, a detailed issues paper was prepared. This paper is found between [CB 1] and [CB 16]. On [CB 15] there is a decision by the Minister in the following form:
“I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and Ms Pakoti’s comments, and have decided that:
I reasonably suspect that Ms Pakoti does not pass the character test and Ms Pakoti has not satisfied me that she 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
Philip Ruddock
Minister for Immigration and Multicultural and Indigenous Affairs
3.2.03”
The decision by the Minister is one to which the rules of natural justice apply. The applicant made a request for a statement of reasons from the Minister and this was provided on 6 May 2003. The statement of reasons is found between [CB 75] and [CB 80]. The applicant has sought review from this court of the Minister’s decision. Her grounds for review are contained in an amended application filed in this court on 23 July 2003. The amended application was further amended by the deletion from the grounds of Ground E(1). The grounds can be evenly divided between those which relate to procedural fairness and those which relate to constitutional issues. The applicant filed two affidavits, one of Kathleen Elizabeth Watson and one of herself dated 25 and 26 August respectively.
The Constitutional grounds
Migration
The Minister only has power to act in respect of this applicant if either she is an immigrant or she is an alien. These are the two heads of power found in the Constitution at s.51(xxvii) (Migration) and 51(xix) (Aliens).
The applicant argues that she has been absorbed into the Australian community and is no longer a migrant to Australia for the purposes of s.51(xxvii). The two affidavits filed in these proceedings indicate that she has spent nearly all of her life – over 22.5 of her 24 years of age – as a permanent resident of Australia. She grew up, was educated and worked in Australia. She considered herself to be Australian and deposed to having requested that her father permit her to become an Australian citizen. The respondent argues that she has not become absorbed into the community because she was unable, whilst a child, to make up her mind on the subject and after attaining the age of 18 years she spent little time (approximately two years) before she was committed to prison for the offences in respect of which the Minister claimed she has failed the character test.
The concept of integration into the Australian community was considered by the High Court as early as 1925 in Ex parte Walsh and Johnson; in Re Yates (1925) 37 CLR 36 at [64]. It was accepted by the court in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [36], [52] and [368]. In R v Director General of Social Welfare for Victoria; Ex parte Henry and Anor the High Court considered the validity of the Immigration (Guardianship of Children) Act 1946-1973 (Cth). It was made clear by Barwick CJ at [372] and Gibbs J at [373] and [374] that absorption into the community could occur for a child:
“In my opinion s 6 on its proper construction does not extend to children who have become part of the people of Australia, and so construed the section is valid.” Per Gibbs J at [374].
I am satisfied that the dicta in Henry whilst indicating that a child who did not enter Australia with his family unit and who was the subject of the Minister’s guardianship might not be able to make a conscious decision to become part of the Australian community until reaching his or her majority, would not prevent a person so minded from making that conscious decision the very next day after achieving his or her majority. I am satisfied from the evidence produced that the applicant in this case had the necessary intention; so that even if Henry was authority for the proposition that she could not have been absorbed until she reached the age of 18 years, which I do not think it is, she was absorbed immediately thereafter. I do not think the migration power extends to this applicant.
The aliens power
The position of persons who were defined as British subjects for the purposes of s.5(1) of the Australian Citizenship Act 1948 (“the Citizenship Act”) and were therefore not aliens at the time of their arrival into Australia, was last considered by the High Court in Re Patterson; Ex Parte Taylor (2001) 207 CLR 391. By a majority of four Justices to three, the court held that a British subject who had entered the country for the purposes of migration prior to the coming into effect of the Royal Style and Titles Act 1973 (Cth) was not an alien and was therefore not touched by the powers purported to be exercised by the Minister pursuant to s.501 of the Migration Act. In making that decision the court overruled its earlier decision of Nolan v Minister for Immigration and Ethnic Affairs (1998) 165 CLR 178. Three of the four Judges in the majority were of the view that the non-alien status of a British subject extended to the coming into effect of the amendments to the Citizenship Act made in 1984 on 1 May 1987. The applicant in this case came into the country after the 1973 Act but prior to the coming into effect of the 1984 amendments.
All of the Justices of the High Court indicated that the statutory definition of an alien contained in the Citizenship Act was not binding upon them in consideration of the constitutional definition of alien. Counsel for the applicant urged me to accept the view of the majority of the majority and thus find that the applicant in this case was not a person touched by the aliens power. The respondent argued that I was bound only to accept the narrowest interpretation of the majority decision, which was that of McHugh J, and thus find that the applicant was within the definition of an alien. The argument is a fascinating one and as a British subject who arrived in Australia between 1973 and 1987 one that could have touched me personally. But I am able to resist the temptation to muddy the waters with my own thinking because the principles of comity (See Steven Edwards Hicks v Minister for Immigration [2003] FCA 757 at [73-76]) require me to follow the decision of French J in Long v Minister for Immigration [2002] FCA 1422 when the same issue was considered. In that case His Honour said at [14]:
“In my opinion there is no binding principle in Re Patterson which assists me to a decision in this case. I consider that I should not apply to this case the proposition that British subjects living in Australia were not to be regarded as aliens until after 1987. In my opinion the appropriate position to take is the minimum position adverted to by McHugh J (although not definitively). On that position the division of allegiances between the Queen of the United Kingdom and the Queen of Australia became clear and the status of British subjects who were not Australian citizens also became clear as aliens for the purposes of the constitution in 1973 upon the enactment of the Royal Style and Titles Act 1973. This approach is the most conservative approach to the decision in Re Patterson which, having regard to its divergent reasoning, should be seen as disturbing pre-existing law to the least extent necessary consistent with the outcome.”
I find that in this case the applicant is an alien for the purposes of the Constitution notwithstanding the provisions of the Citizenship Act as they were upon her arrival. Thus she is a person who the Minister’s powers under s.501 of the Migration Act can reach.
The judicial review grounds
The applicant argues that in coming to the decision which he did the Minister took into account irrelevant considerations or failed to take into account relevant considerations which, had he not done so, may have altered the decision which he made in the exercise of his discretion to cancel her visa. The applicant argues that the respondent failed to give the applicant notice or any opportunity to present a case against his classification of her criminal history or against his finding that she had a continuing risk of recidivism. The applicant also submitted that the respondent took into account an irrelevant consideration when he found that she had perpetrated assaults against children.
The applicant argues that the Minister’s decision was vitiated by reason of jurisdictional error because the decision maker took into account irrelevant material and failed to accord the applicant procedural fairness: Craig v South Australia (1995) 184 CLR 163 at [179]; Minister for Immigration v Yusuf (2001) 206 CLR 323. The first of the allegedly irrelevant matters that were erroneously taken into account are breaches of discipline which the applicant committed while incarcerated. These are referred to at [CB 10] where they are listed as “possess create prohibited goods, not comply routine, smoke in non smoking area, unauthorised property, not comply routine.” None of these matters could be classed as serious and they did not in any way cause an extension of the non-parole period which the applicant was required to serve. But there is no evidence that they had any affect upon the Minister’s decision. The decision itself makes no reference to them. I cannot see that the applicant has made out a case that the Minister, being aware of these infractions, took into account irrelevant material in makings his decision.
The applicant argues that the respondent denied her procedural fairness in taking into account the protected information without giving the applicant an indication of what that protected information was. This complaint only came to light towards the end of the proceedings before me. It arose out of discussions concerning the error alleged by the respondent in his categorisation of the applicant as a person who had been convicted for a number of offences between 1996 and 2000. It is not specifically pleaded but I propose to deal with it in these reasons.
The applicant expressed concern at the characterisation of her criminal record as “a history of serious offences” [CB 78 at 15] and/or “a history of very serious offences” [CB 78 at 18]. The applicant argues that the events leading up to her conviction on 20 August 2000, while serious, effectively represented one episode of criminality which occurred while she was under the influence of a variety of illicit drugs and while she was in a relationship with her co-offender in which she was subject to his violent attacks upon her and while living on the streets.
If the references to the applicant’s offences were just those which I previously quoted from [CB 78] I would have found that it was not open to the applicant to argue before me the seriousness or otherwise of the matters for which she was convicted. This characterisation, in the circumstances, being reasonably open to the Minister. But there is an additional reference which causes me concern. That is the one on [CB 77] where the Minister says:
“Ms Pakoti has been convicted of a number of offences between 1996 and 2000. She was convicted of a number of very serious offences such as robbery with dangerous weapon, and assault with intent to rob whilst armed with offensive weapon causing grievous bodily harm, and aggravated robbery.”
It would appear from this quotation that the Minister is making a distinction between very serious offences and serious offences. The comments made at [CB 77] give the context to the history referred to at [CB 78] but it is first described as a history of serious offences and then a history of very serious offences. In this context the Minister’s decision begins to look, at the best, muddled. But it would be difficult to argue that it did not appear to be based upon offences which are not contained in the applicant’s criminal history that was supplied to her under the title “Sentence Administration Report” with the letter of 25 October 2002. The Sentence Administration Report is found between [CB 20 and 21] and it makes no reference to any offences earlier than 2000. What are the serious offences that are alleged to have been committed by the applicant between 1996 and 2000?
There are two possible answers to this question. The first is that the Minister has simply made a mistake. There are no offences, let alone serious offences, for which the applicant was convicted between 1996 and 2000. If that was the case then it would appear to me that the Minister has, in making his decision upon the exercise of his discretion, taken into account irrelevant material and the decision would seem to me to be open to review pursuant to s.39B of the Judiciary Act 1903 on the authority of Craig or Yusuf. On the other hand there could be such convictions, in which case if they were not disclosed in the documentation provided to the applicant they should have been put to her.
It is not appropriate to argue that information about the applicant’s own criminality has no need to be put to her because she knows it already. The applicant does not know what the information was that the Minister sought to rely upon. It may not have been information about her at all. It could have been about someone with a similar name. The obligation of the Minister to put such information to an applicant was considered in some detail by Ryan J in Ball v Minister for Immigration [2003] FCA 699 [27] to [34]. That case involved a decision of the Minister based upon protected information. There is a reference to protected information in this case. If the protected information concerned is the applicant’s past criminal history then she would appear to me to be in no different a position to that of Ms Ball where His Honour, in responding to a suggestion that the applicant had an opportunity to respond to the Minister’s case by force of Regulation 2.55(7) of the Migration Regulations, said:
“In that sense she had the opportunity to advance a case to the Minister, but, for the reasons explained above, she was not given an opportunity to know the material adverse to her on which the Minister might have relied. Accordingly, she was not accorded that degree of procedural fairness which, on the authority of the cases cited at [27] above, I consider, the Act, on its proper construction and in the circumstances of the case, required.”
In Ms Pakoti’s case her legal advisers suspected that the protected information about which she was given no information or an opportunity to comment, consisted of her previous criminal record. She attached to her affidavit of 26 August 2003 a copy of that document. It does refer to matters commencing in 1996. But neither Ms Pakoti nor the court knows that this was the document to which the Minister was referring. It should also be noted that that document refers to three matters. Upon the first no conviction was entered. No evidence was offered in relation to the second and it was therefore dismissed. In respect of the third the applicant was fined $360.00. The Minister must have been referring to some other document when he stated that the applicant was convicted of a number of offences between 1996 and 2000, or else he was wrong. In either case the Minister acted without jurisdiction in reliance either upon a history upon which the applicant was not asked to comment or a history that was incorrect.
In the circumstances I am prepared to grant review to the applicant and to order that certiorari issue to quash the decision of the respondent of 3 February 2003. I will further order that the applicant forthwith be released from immigration detention and that the respondent pay the costs of the applicant which I assess in the sum of $5,000.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 5 September 2003