Ranginui v Minister for Immigration
[2003] FMCA 401
•19 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RANGINUI v MINISTER FOR IMMIGRATION | [2003] FMCA 401 |
| MIGRATION – Cancellation of visa – character test – natural justice – failure to give applicant prison report – breach of natural justice – whether breach affected decision. |
Judiciary Act 1908 (Cth), ss.39B, 78B
Migration Act 1958 (Cth), s.501
Re: Patterson; Ex parte: Taylor [2001] HCA 51
Shaw v Minister for Immigration & Multicultural & Indigenous Affairs
Long v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218
Re: Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 448
Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24
Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497
M238 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 936
| Applicant: | KIMBERLEY OKEROA RANGINUI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 280 of 2003 |
| Delivered on: | 19 September 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 12 September 2003 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Niall |
| Solicitors for the Applicant: | Ann Valos |
| Counsel for the Respondent: | Mr Gilbert |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the Application is adjourned to a date to be fixed.
That all questions of costs are reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 280 of 2003
| KIMBERLEY OKEROA RANGINUI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant seeks review under s.39 of the Judiciary Act 1908 (Cth) of a decision of the Respondent to cancel the Applicant’s residence visa. The decision was made by him pursuant to s 501(2) of the Migration Act 1958 (Cth) (The Migration Act). The Respondent found that the Applicant has a substantial criminal record as defined in s 501 (7) of the Migration Act. He reasonably suspected that the Applicant did not pass the character test and found further, that she did not satisfy him that she did pass the character test. He decided to cancel the Applicant’s visa.
The Applicant was born in New Zealand on 7 April 1982 and came to Australia on 9 June 1982 at the age of two months. She argues that she is a non-alien non-citizen. If that is correct she is not the holder of a visa under the Migration Act and the power to cancel under s.501 is not available. In Re:Patterson; Ex parte: Taylor [2001] HCA 51, the Applicant was a British subject absorbed into the Australian community prior to 1973. The High Court held that a British subject in the position of the Applicant could not be treated as an alien for the purpose of s.51 (xix) of the Constitution. There was a divergence of opinion between the Justices leaving open the question whether the relevant date might be 1987.
The appeal in Shaw v Minister for Immigration & Multicultural & Indigenous Affairs was heard by the High Court of Australia on
17 June 2003 and judgment was reserved. I was informed by counsel for both parties that that decision will decide the status of the Applicant in this case. In Long v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218, where the Applicant was in a similar situation, the Full Court deferred argument on that issue but heard the balance of the argument. The parties in this Application agreed to the same course being adopted.
The argument is a constitutional one. Notice has not been given to the Attorney-General of the Commonwealth and the Attorney-General of the States as required by s.78B of the Judiciary Act 1903 (Cth). The constitutional question has been deferred. Notice is not necessary for the balance of the argument.
Section 501(2) of the Migration Act provides:
(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.
Section 501(6) provides:
(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);
Section 501(7)(c) & (d) provide:
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; or
(dthe person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
The Minister made his decision to cancel the visa on 19 December 2002. He gave a statement of reasons in writing dated 10 July 2003. The reasons stated that the Minister had taken into account all matters referred to in an issues paper dated 12 December 2002 and all of the annexures to the issue paper.
On 5 June 2001 the Applicant was sentenced to 18 months imprisonment with a non parole period of 9 months. Most of the offences related to robberies and attempted robberies perpetrated against victims on railway station platforms or on trains during off peak hours of the day. She was released in February 2002 but arrested about two weeks later. On 28 March 2002 she was again convicted and sentenced to a further prison term. The material considered by the Minister included a report dated 10 May 2002 from a senior prison officer employed by the operator of the Dame Phyllis Frost Centre, the prison in which the Applicant served her terms of imprisonment. It is accepted, on behalf of the Minister, that a copy of that report was not given to the Applicant. The correspondence included within a supplementary court book shows that those within the Minister's Department dealing with the matters relating to consideration of cancellation of the Applicant’s visa, recognised that natural justice required that a copy of the report be given to the Applicant, but it did not happen. Contentions of fact and law filed on behalf of the Minister accepted that decisions under s501 (2) are subject to common law principles of natural justice. The contentions accepted that there was a “technical breach of the rules of natural justice”.
The issue in this case is whether the breach affects the making of the decision. In Re: Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82 McHugh J said at 122, paragraph 104;
Not every breach of the rules of natural justice affects the making of a decision. The decision maker may have been entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this court in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 when it said that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial ". Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because “[i]t is no easy task for a court...... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome" (at 145).
In VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 448, Finkelstein J said of Aala (at 17):
It was held that once a breach of the rules of natural justice was proved, the matter should go back to the Tribunal unless the court can confidently say that the breach could not have affected the outcome.
Following the decision by the High Court in Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24, there has been some discussion about the limits of procedural fairness when what is involved is jurisdictional error. In Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497, Hill J. was considering a decision by the Minister under s.501 of the Migration Act. He said at 65:
“Obviously the question of whether procedural fairness is required and the content of the rules of natural justice may only be answered by the terms of the legislation itself. But once it is found, as, indeed is accepted, that procedural fairness is required to be afforded to an Applicant whose visa is about to be cancelled, failure to afford that Applicant procedural fairness will result in the decision being null and void. There is no reason in the present case to draw a distinction, if there is one, between the case of procedural fairness which does not constitute jurisdictional error and one which does.”
M238 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 936 is a decision by Kenny J concerning a visa cancellation by the Minister under s.501. The issue was whether the Applicant should have been provided with a copy of a minute given to the Minister by his department. Her Honour said at 44:
“A visa holder, who is to be the subject of a decision under s 501 (2) will not have a fair opportunity to present information and argument against the cancellation of his or her visa if he or she does not know the critical issues on which the decision is likely to depend or the nature of any significant adverse information touching those issues.”
And then at 46:
“Procedural fairness did not require the decision maker, through the Departmental officers or otherwise, to supply a copy of the minute to the Applicant. Although there was an obligation to inform him of the issues that it discussed and of any significant adverse material that was otherwise known to him, this did not require provision of the document itself. Procedural fairness is concerned with actual practical fairness.”
The letter dated 10 May 2002 from the prison authority set out 19 incidents while in prison custody. It contained a statement:
“As can be seen by incident history, it appears that Ranginui can be quite difficult to manage”.
The letter enclosed a urine analysis history. It showed no positive samples, however the letter pointed out that she had refused to provide a urine sample six times. The last of these is recorded in the letter as
4 April 2001. It is not clear whether that is the day of the drug test or the date on which she was found guilty of refusing the drug test. The issues paper noted that since the Applicant's reception into the prison system in May 2001, the Applicant has not refused to undergo testing and all the test results have been negative. The Minister therefore proceeded on the basis that since the time of the commencement of that prison sentence she had not refused to undergo a drug test.
At the time this letter was written, the Applicant was in prison after a brief release in February and March. The incidents all referred to earlier periods in prison.
Significant are references to the refusal of urine tests. Another report which the department had obtained was from Caraniche Pty. Ltd, which provided a detection unit drug program in which the Applicant had been involved. That report showed a positive approach to the program by the Applicant and said that she seemed to be genuine in her desire for change.
It is apparent from the material that a significant factor in the Applicant's criminal behaviour was drug use. The Applicant was interviewed on two occasions and in the course of those interviews made statements regarding her prospects of rehabilitation. The Minister refers to the statements in his reasons.
Under the heading “Risk of Recidivism” the Minister said that he had considered a number of matters. These were the pattern of the Applicant's criminal behaviour between 1999 and 2002, including offences committed after her release on parole on 18 February 2002. He noted the statements made by the Applicant regarding her prospects of rehabilitation. He noted “the record of telephone interview with the Applicant on 28 August 2002; the submission from Victorian Legal Aid; the prison report; the record of telephone interview with the Applicant's mother; the additional report from CORE; and the report from Caraniche Pty Ltd."
I must consider whether the Applicant would have conducted herself differently in relation to the investigations and deliberations by the Minister and his department if she had received a copy of the Core report. She was interviewed twice. The first was on 5 February 2002. The issues paper recorded this:
She stated that, in contrast to previous prison sentences, this time she wished to reform even before she received the notice of liability from DIMIA. Ms Ranginui stated that she had not used drugs in prison during her (then) current sentence and all her tests were clean. She stated that she had a very high drug user rating of IDU (identified drug user) 7 during her previous sentence.
Ms Ranginui stated that she was involved in only one incident which occurred early in her sentence when she was still “ playing up”. Ms Ranginui stated that during a fight among prisoners, she accidentally hit a prison officer. Ms Ranginui stated that she was aiming at another prisoner who had made a derogatory remark about her family. The prisoner was being held by prison officer and she accidentally hit the officer instead. She was also accused of holding a chair over another prison officer. Ms Ranginui stated that she was not guilty of intentionally assaulting the prison officer and the officer had acknowledged this. Ms Ranginui stated that she was placed in the prison’s Protection Unit as a result of the incident. Ms Ranginui is currently awaiting the outcome of outstanding criminal charges in relation to this incident.
The Applicant's statement that she had not used any drugs in prison during her current sentence and all the tests were clean was consistent with the Core report. Her statement that there was only one incident in her current sentence is consistent with the Core report. Her statement that in contrast to previous sentences this time she wanted to reform is consistent with the Core report. She has dealt with all the issues raised by the Core report.
The second interview was on 28 August 2002. She admitted to using various drugs again after her release. She stated that since the return to custody in March 2002 she had agreed to undergo drug and urine tests and all have been negative. Information obtained from the Office of Correctional Services confirmed this.
The information contained in the Core report was relevant to the Minister’s consideration of the risk of recidivism. The Applicant's behaviour in prison is plainly relevant to this. The Applicant’s position was this. She acknowledged that prior to her imprisonment in 2001 she had behaved poorly and had used drugs. There may not have been a specific admission but it is a clear inference from her statement that she had a very high drug user rating during her previous sentence. She said that when imprisoned in 2001 and prior to the notification that consideration was being given to cancelling her visa, she had decided she wished to reform. She had been involved in one incident, which she explained. Her drug tests had been negative and she had not refused tests. The information contained in the Core report is consistent with this. The Applicant was aware of her record of behaviour and dealt with this in the interviews.
Even if the Applicant had been provided with the Core document she would not have acted any differently than she did. Nor do I consider it would have affected the outcome of her application. She knew of the material it contained. She knew that her behaviour in prison was relevant and she dealt with the question of her behaviour. The result would not have been any different if she had received the report. The accuracy of the information contained in the report was not contested by the Applicant. Indeed her interviews confirmed it. There was no additional information which could have been provided which was not provided or no additional argument or submission that could have put which were not put.
Two other matters were argued. The first is that the Minister failed to take into account relevant considerations including the age of the Applicant, the likelihood of her reverting to drug use in the future and the prospects of rehabilitation. The Ministers reasons do not mention these matters specifically. However, the reasons state that he has taken into account a number of matters and in particular the issues paper. The Applicant's age and matters relevant to the likelihood of her reverting to drug use in the future and the prospects of rehabilitation are dealt with in the issues paper. He states that he has noted her statements regarding her prospects of rehabilitation. This argument is not made out.
The second is that the Minister failed to make material findings of fact whether the Applicant would revert to drug use in the future. The Minister made an assessment that there was a continuing medium to high risk, that the Applicant might re-offend. Part of that assessment may have involved consideration of likelihood of reverting to drug use. It was not necessary for the Minister to make a specific finding.
The consequence is that the Applicant's claim that she is a non-alien non-citizen still remains to be decided. I have decided that each of the other grounds advanced is not a basis for setting aside the Minister's decision. The agreement on the course to be adopted referred to
above means that I would either allow the application and set aside the Minister's decision, or adjourn the application. I note that the adjournment is not by consent but comes as a result of the conclusions I have reached on all other issues. These reasons constitute my reasons for ordering that the application be adjourned.
I certify that the preceding twenty-eight(28) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date:
1
8
0