Rocca v Minister for Immigration
[2004] FMCA 332
•17 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROCCA v MINISTER FOR IMMIGRATION | [2004] FMCA 332 |
| MIGRATION – Application for review of a decision of the Minister for Immigration & Multicultural & Indigenous Affairs cancelling the applicant’s transitional (permanent) class BF visa – applicant serving prison sentence for heroin trafficking – whether the decision to cancel the applicant’s visa was made by the Minister personally – where the applicant contended that the Minister’s officers provided him with a Statement of Reasons and whether the Minister properly adopted the decision – whether the making of the visa cancellation constituted a jurisdictional error – whether the Minister gave weight to irrelevant considerations and thereby failed to properly exercise his jurisdiction – whether the Statement of Reasons was really a submission to which the applicant should have been permitted to respond – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.474, 474(2), 476, 476(1)(a), 483A, 499, 501, 501G, 501G(4), 501G(1)(e), 501(2), 501(2)(a), 501(6), 501(6), 501(6)(a), 501(7), 501(7)(c)
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Asku v Minister for Immigration & Multicultural Affairs (2001) FCA 514
Madafferi v Minister for Immigration & Multicultural Affairs (2002) FCAFC 220
Halmi v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 1
Javillonar v Minister for Immigration & Multicultural Affairs (2001) FCA 845
Minister for Immigration, Local Government and Ethnic Affairs v Grey (1994) 50 FCR 189
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 419
Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 175 ALR 706
re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) HCA 6
Kioa v West (1985) 195 CLR 550
Broussard v Minister for Immigration & Ethnic Affairs (1989) 21 FCR 472
re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Palme [2003] HCA 56
El Sayed v Minister for Immigration, Local Government & Ethnic Affairs (1991) 22 ALD 767
Somaghi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 100-108
F Hoffmann and La Roche and Co AG v Secretary of State for Trade and Industry (1975) AC 295
Sokourenko v MIMIA (2003) FCA 892
Lorenzo v Minister for Immigration & Multicultural & Indigenous Affairs and Commonwealth of Australia (2004) FCA 435
Herrera v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 428
Minister for Immigration & Multicultural Affairs v W15700A (2002) 125 FCR 43
re Ruddock, Minister for Immigration and Multicultural Affairs; ex parte Truong (Hayne J, 22 March 2001 unreported)
Howells v Minister for Immigration and Multicultural Affairs (2004) FCA 530
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
| Applicant: | GUISEPPE ROCCA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ1315 of 2003 |
| Delivered on: | 17 June 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 25 May 2004 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr Nash |
| Counsel for the Applicant: | Mr Connellan |
| Counsel for the Applicant: | Ms Karapanagiotidis |
| Solicitors for the Applicant: | Access Law |
| Counsel for the Respondent: | Mr Gray |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THAT the Application be dismissed.
THAT the Applicant pay the Respondent’s costs fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ1315 of 2003
| GUISEPPE ROCCA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
By this proceeding the applicant seeks to review the decision of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister") then Mr Ruddock, made on 5 October 2003 pursuant to s.501(2) of the Migration Act 1958 (Cth) ("the Act") to cancel the applicant's transitional (permanent) class BF visa.
The application was commenced in the Federal Court of Australia and transferred by order of Gray J on 20 November 2003 to the Federal Magistrates Court for a hearing. By his amended application filed
9 March 2004 the applicant seeks an order to quash the cancellation decision. The relief arises under s 39B of the Judiciary Act 1903 (Cth) which jurisdiction the Court has under s.483A of the Act, and for habeas corpus and constitutional writs.
Background facts
The applicant was born in Italy on 6 November 1944 and is now 59 years old. He arrived in Australia on 22 July 1965 aged 20 years of age. Since his arrival, the applicant has resided in Australia continuously except for a total of 17 weeks, from 18 June 1981 to
31 July 1981 and from 16 June 1996 to 31 August 1996.
On 18 August 1999 the applicant was sentenced before the County Court of Victoria at Melbourne to seven years and six months imprisonment with a non-parole period of five years for the offence of trafficking in heroin between 1 January 1998 and 10 July 1998.
By letter dated 15 September 1999 the Department for Immigration & Multicultural & Indigenous Affairs ("the Department") sent the applicant a notice of intention to cancel his visa under s.501(2) of the Act.
The notification stated that matters to be taken into account included his conviction for drug trafficking at the Melbourne County Court on 18 August 1999. It also referred to, and enclosed, Minister's Direction 17. By letter dated 14 October 1999 the applicant provided a response to that notice. By letter dated 26 March 2003 the Department notified the applicant that Minister's Direction 17 had been replaced by Direction 21. A copy of Direction 21 was enclosed for his attention.
Following interviews, correspondence and gathering of information, the case officer at the Immigration department prepared a document entitled "ISSUES FOR CONSIDERATION FOR POSSIBLE VISA CANCELLATION OF A VISA UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958" (“the issues paper”) and submitted it to the Minister to assist him to formulate his decision.
The issues paper and the information accompanying it were not supplied to the applicant prior to the Minister making his decision. On 5 October 2003 the Minister purported to cancel the applicant's visa.
The applicant completed the non-parole period of his sentence on
19 February 2004 and is now detained in immigration detention.
The applicant's grounds
The applicant relies on essentially three grounds. Ground 1 asserts that the cancellation decision was not made by the Minister personally, and/or was not made in good faith. The first issue raised is whether the assistance given by the officers of the Minister's department in preparing the documents in the case (a briefing concerning the case, supporting documents, and a draft statement of reasons in the event the Minister decided to cancel which statement the Minister was invited to correct or adopt) was such that the Minister did not make the cancellation decision. The second issue is raised by the applicant's allegation that there was
fraud and/or collusion
in the form of
an unlawful exclusion of the applicant's rights to seek administrative review
Ground 2 of the amended application asserts jurisdictional error in the making of the cancellation decision, consisting of failure to take into account various matters, taking into account various other matters, and unlawfully fettering the discretion.
Ground 3 is an allegation of the denial of natural justice or procedural fairness in the form of an assertion that the applicant was not given an opportunity to comment on the contents of the material with which the Minister was briefed.
Relevant legislation
Section 501 confers a power which may be exercised in one of two ways, by the Minister personally or by a person to whom the Minister has delegated the power. Where the power is exercised by a delegate of the Minister it is by statute subject to administrative review by the Administrative Appeals Tribunal. When the Minister exercises the power personally there is no statutory right to seek review. Parliament has drawn a clear distinction between the effect of exercising the power in one way rather than another. Section 501(2) of the Act provides as follows:
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 satisfy the character test; and
(b)The person does not satisfy the Minister that he or she in fact passes the character test.
Under s.501(6)(a) a person does not pass the character test if he or she has a substantial criminal record within the meaning of s.501(7). Under s.501(7)(c) a person is deemed to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more.
The applicant has a substantial criminal record within the meaning of s.501(7) and therefore does not pass the character test within the provisions of s.501(6). Accordingly, the preconditions in s.501(2)(a) and (b) were made out and it was within the Minister's power to cancel the applicant's visa.
The cancellation decision was a "privative clause decision" within the meaning of s.474(2) of the Act. A decision will not be regarded as having been made under the Act if it involves a failure to exercise jurisdiction or an excess of jurisdiction, on a proper construction of the Act after a process of statutory construction involving reconciliation between s.474 and other relevant provisions of the Act. Such a decision therefore would not be a "privative clause decision" within the meaning of s.474. (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [76]).
The task of determining whether a decision (such as the cancellation decision) is a privative clause decision requires an examination of limitations and restraints found in the Act to determine whether
as a result of the reconciliation process, [the cancellation decision] does or does not involve jurisdictional error and, accordingly, whether it is or is not a "privative clause decision" is defined by s 474(2) of the Act.
(Per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [78]).
Grounds
By the Department's letter dated 15 September 1999 giving the applicant Notice of Intention to consider cancellation of his visa and the then applicable Direction 17 made under s.499 of the Act, the applicant was informed that the matters to be taken into account included his conviction for drug trafficking at the Melbourne County Court on 18 August 1999 and that he was invited to provide written comments and information. The applicant used this opportunity and provided a written submission dated 14 October 1999.
By the Department's letter dated 26 March 2003 giving the applicant notice of intention to consider cancellation of his visa and the newly applicable Direction 21 made under s.499 of the Act, the applicant was given copies of his criminal record, police report and summary of evidence and a copy of the transcript of proceedings at the County Court on 18 August 1999 for his information and comment. He was invited to make a written response and notified that in the near future an interview would be arranged. The letter also invited the applicant to fill out and send back a personal details form which the applicant did.
At an interview with an officer of the Department on 23 April 2003 the evidence indicates that the applicant was informed that he was liable to have his visa cancelled, and the purpose of the interview was to give him an opportunity to make known any personal or other issues that he wished to be taken into account by the respondent. The applicant was asked a series of questions which elicited responses on issues relevant to the decision of whether or not to cancel his visa. The applicant commented specifically on the issue of the accuracy of parts of the police report in relation to the matter giving rise to his conviction for drug trafficking, the summary of evidence in relation to that matter, and the relevant court transcript. The applicant was also asked questions which elicited his responses on issues including the hardship to himself and his family and children that would be caused by his removal from Australia, in the circumstances of his two minor children aged fifteen and one at the time.
Subsequent to the interview, written submissions were received from family members of the applicant including children and grandchildren. On 30 April 2003, an officer conducted a telephone interview with the applicant's daughter, Josaphina Rocca, and on 28 May 2003 the officer conducted a telephone interview with the mother of four of the applicant's children. A submission was received from Victoria Legal Aid dated 2 June 2003 pointing, inter alia, to the applicant's efforts to rehabilitate himself in prison.
The Applicant's Grounds
The applicant identified three grounds:
·That the decision was not made by the Minister personally.
·That the making of the visa cancellation decision involved jurisdictional errors in that irrelevant considerations were taken into account and relevant considerations were ignored. This ground was not pressed in its entirety.
·That the applicant was denied natural justice and/or procedural fairness and that the Minister relied upon the issues paper and the statement of reasons prepared by officers of his department without first according the applicant an opportunity to comment on the contents of those documents.
Ground 1 - The Decision was not made by the Minister personally.
The contention by the applicant is that either:
·The Minister did not read the reasons statement prior to reading the issues paper and therefore came to a decision, quite properly, on the issues paper. If so, it is contended, by adopting the statement of reasons prepared for him, it is clear that the reasons were not his and he merely adopted or "rubber stamped" reasons which were in fact the reasons of his departmental officers. In this sense it is contended that he failed to provide reasons at all. It is inconceivable, it is contended, that his reasons could be the reasons prepared for him by officers of the Department and if they are not, then there is no evidence that he has turned his mind to any of the matters required to be taken into account and the decision is thus not his decision.
·Alternatively, it is contended, the reasons are his reasons but he read the statement of reasons before forming a view. In this case, it is contended, the statement of reasons was in fact a submission and the applicant was denied natural justice in not being afforded the opportunity to make submissions about a document which was constructed with a particular result in mind and, it is contended, an unfair and biased document.
In relation to the first argument, it is contended that if the document was not read by the Minister then it could not be his reasons because it was not prepared by him. This, it is further contended, would mean that he had not brought an independent mind to bear when he made a decision. In support of that contention, the applicant relies upon the decision of the R D Nichols J in Howells v Minister for Immigration and Multicultural Affairs (2004) FCA 530 and Sokournko v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 892. Citing Howells, counsel for the applicant contended that where constructed reasons are not reasons at all and the reasons are not prepared by the Minister they are not his reasons.
However, Howells is an entirely different case. In Howells case, no written reasons for the decision were given, other than the words:
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.
My direction under s 499 of the Act and Mr Gary Howells comments and have decided that:
"four options were available to the Minister and were preceded by the words "please delete whichever is NOT applicable". The first three options were deleted. The fourth option was chosen and said as follows:
(d) I reasonably suspect that Mr Gary Howells does not pass the character test and Mr Gary Howells has not satisfied me that he passes the character test and I have decided: To exercise my discretion under sub s 501 (2) of the Act to cancel the visa, so I hereby cancel the visa.
It was accepted, as a matter of fact, by the respondent, that apart from contents in the covering letter and the minute described, the respondent did not set out the reasons for the decision as required by s.501G (1)(e). The circumstances accepted on behalf of the respondent led to the Court to find that reasons for decision were not provided to the applicant.
The question for the Court was then whether failure to provide such reasons gave rise to a ground of review pursuant to s.476 (1)(a) of the Act. The relief sought was discretionary relief in the form of mandamus. The Court noted that the relevant Minister at the time when the decision was made, was no longer the Minister, and due to the effluxion of time, "delay here has made it next to impossible for the respondent's predecessor to provide any reasons, other than those by way of reconstruction. He has been severely prejudiced in respect to providing actual reasons by the passage of time”. In those circumstances, the Court exercised its discretion against the remedy and the application for review being dismissed. The facts in Howell’s case are quite different from the present case.
The respondent contends that in effect the applicant cannot get beyond the first of the two alternative scenarios because there is no evidence to which the applicant can point that the Minister did not first form a view and then look at the reasons statement. Further, the respondent contends that the fact that a draft was prepared by someone else does not mean that the Minister did not go through the proper reasoning process to arrive at a decision.
Page one of the "in confidence" brief to the Minister stated the following:
·Issues for consideration of possible cancellation of the visa under s.501(2) of the Migration Act 1958.
·Purpose:
·To seek your decisions on:
·Whether Mr Rocca passes the character test in s.501(6) of the Migration Act;
·If not, whether to cancel his visa pursuant to s.501(2) of the Migration Act.
·Should you choose to make a cancellation decision, the draft statement of reasons at part E should set out correctly your reasons for doing so. If it fails to do this, a revised statement of reasons that include the required amendments will be prepared.
Paragraph 76 in part D provided for three options. The first two are crossed out and the one that remains said:
I reasonably suspect that Mr Rocca does not pass the character test and Mr Rocca has not satisfied me that he passes the character test. I HAVE DECIDED TO EXERCISE MY DISCRETION UNDER SUB - SECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the Visa. My reason for this decision is stated at Part E of this record.
The applicant contends that reasons prepared by someone else could not be the actual reasons of the Minister and accordingly he could not have reasonably given those reasons nor reached nor made the decision he purported to make.
I do not agree with that submission. In Javillonar v Minister for Immigration and Multicultural Affairs (2001) FCA 854, Stone J dealt with a similar issue. However, in Javillonar as in Howells, a statement of reasons had not been prepared and signed by the Minister. All that had been signed was the Department's brief. The applicant contended a total failure to provide written notice as required. However, her Honour rejected that submission and said at paragraph (24):
In my opinion, Mr Smith, counsel for the respondent, is correct in contending that the brief prepared by the Department constituted sufficient compliance with s 501G(1)(e) and that it was irrelevant that the document was not prepared by the Minister personally. Mr Smith referred to the decision of Hayne J of the High Court of Australia sitting as a single judge in re Ruddock, Minister for Immigration and Multicultural Affairs; ex parte Truong (Hayne J, 22 March 2001 unreported). In that case, as in this case, the only document purporting to comply with s 501G (1) (e) was a brief prepared by the Department. Hayne J stated:
In my opinion, it is not arguable that this document alone or this document in conjunction with the notice insufficiently complied with the obligation imposed by s 501G(1)(e). Read as a whole, the document reveals the matters that were before the Minister, assigned them particular weight, and it was on the basis of that information - and I interpolate - only that information, that the Minister then reached the decision which he did. In any event, as I have said, the matter is put beyond doubt by the terms of the notice that were given to Mr Truong that the decision records sets out the reasons for the decision that we've reached.
And at paragraph 26 her Honour said, relevantly:
The Minister's decision is consistent with the analysis and recommendation made in the departmental brief. Given that the Minister is obliged by s 501G(1)(e) to provide reasons for his decision, the completion of part E by the Minister without comment leads to the conclusion that the Minister adopted the brief as a statement of his reasons.
That part of the decision that says that sufficient reasons were given must now be taken to be over-ruled by the decision of the High Court in reMinister for Immigration and Multicultural and Indigenous Affairs ex parte Palme (2003) HCA 56. In Palme the High Court found that, in all the circumstances, the Minister had failed to discharge his duty to express the essential ground or grounds for his conclusion that the prosecutor had not satisfied him that he passed the character test and that the prosecutor's visa be cancelled.
Their honours Gleeson CJ, McHugh, Gummow and Hayden JJ said at [40]:
In any event, the Parliament obliged the Minister, having reached a conclusion, to set out his reasons, and, in order to discharge that duty, was at least necessary for him to express the essential ground or grounds for his conclusion that the prosecutor had not satisfied him that he passed the character test and that the prosecutor's visa should be cancelled. That was not done.
However, the majority (Kirby J dissenting) discharged the order nisi in concluding it was at [48]:
… a critical distinction between failure to comply with s 501G(1)(e) and using that failure to conclude that the visa cancellation decision is flawed by jurisdictional error.
At [44] the majority said:
Here the question is whether the step under s 501G which logically and temporally succeeds the making of a decision in exercise of a power is a condition precedent to that exercise. The possibility that this is so may be conceded. But, as Project Blue Sky emphasised (1988) 194 CLR 355 at 390-1 [93] the answer depends upon the construction of the Act to determine whether it was the purpose of the Act that an act done or not done, in breach of a provision, should be invalid. That gives rise to several immediate difficulties for the prosecutor.
And at [45] the majority said:
Secondly, the Act deals expressly in s 501G(4) with the interrelation between cancellation and notification. The stipulation it makes is that a failure in notification does not of itself affect the validity of the cancellation.
The matter was dealt with again by the Full Court per Sackville J in Herrera v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 428 in similar circumstances in which no reasons were provided. His Honour, in citing from Minister for Immigration & Multicultural Affairs v W15700A (2002) 125 FCR 43 at [448-49], per Branson J with whom Goldberg and Allsop agreed, said at paragraph 31:
Branson J observed (at 445 [37]) that the reasons for decision are distinct from the decision itself and from factual findings on which the decision is based. To give reasons for a decision is to "disclose the process of reasoning, which led the decision maker from the factual findings to the decision". Her Honour went on to say this (at 446 [39] - [40]);
I doubt that s 501G(1) is intended to require that the notice therein referred to should emanate from the Minister in the sense that it must be drafted by the Minister. In my view it would be sufficient for the Minister to adopt as his or her own written reasons prepared by a department officer provided, of course, that such reasons actually reflected the reasons why the Minister had reached his or her decision.
I adopt the observations of Branson J in W157/00A. There is nothing to impugn the fact that the Minister has made a decision. The reasons for the decision in this case disclosed the process of reasoning which led to the decision. There is no logical reason why the document should not be drafted for the Minister and if he believed that it correctly identified the reasoning process by signing that document. The document invites revision in the event that the Minister's reasons are different from those of the draft.
The applicant's alternative contention was that if the reasons are not the Minister's (contrary to my conclusion) then he has not given reasons at all and there are no reasons and he has not turned his mind to the relevant matters. That submission is directly contrary to the findings of the High Court in Palme as Sackville J noted in Herrera at [37]:
The applicant's submission that the Minister's failure to comply with s 501G(1)(e) of the Migration Act constitutes a jurisdictional error encounters the formidable obstacle that it appears to be directly inconsistent with the decision of a majority of the High Court in ex parte Palme.
In Lorenzo v Minister for Immigration & Multicultural & Indigenous Affairs and Commonwealth of Australia (2004) FCA 435, Hill J dealt with the same issue. Reasons in that case for the decision of the Minister were given after litigation commenced and more than 12 months after the making of the decision. Hill J found that that was not compliance with the Act. It was submitted by the applicant that the Minister had failed in accordance with the obligation under s.501G of the Act to give reasons and that the decision should be set aside. At paragraph [38] his Honour said as follows:
This submission may be easily rejected. First, s 501G itself provides that failure to provide reasons does not affect the validity of the decision, whereas the submission if accepted would have the consequence that every decision unsupported by a timely provision of reasons would be taken to be made without reason and thus invalid. Second, and more importantly, the High Court has rejected the submission that failure to provide reasons constitutes jurisdictional error. Re Minister for Immigration & Multicultural & Ethnic Affairs; ex parte Palme (2003) 77 ALJR 1829 at [46] per Gleason CJ, Gummow and Hayden JJ and at [55] per McHugh J and [109] per Kirby J.
The first part of Ground 1 must therefore fail. However deciding whether the attachment of draft reasons should accompanying the issues paper to the Minister the words of Kirby J (who was in dissent as to the effect of breach of s.501G in Palme) at [105] are worth recalling:
The rationale of the obligation to provide reasons for administrative decisions is that they amount to a "salutory discipline for those who have to decide anything that adversely affects others". They encourage a "careful examination of the relevant issues, the elimination of extraneous considerations and consistency in decision making". They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the Courts in performing their supervisory functions where they have the jurisdiction to do so. They encourage good administration generally by ensuring that the decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision maker from merely going through the motions. Where the decision affects the redefinition of the status of the person by the agencies of the state, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases "public confidence in, and the legitimacy of, the administrative process".
The applicant was denied natural justice and/or procedural fairness
The contention relies upon the Court finding that the reasons were not the Minister's reasons but must be treated as submissions by departmental officers as to why the Minister should cancel the applicant's visa. As such, it is contended there was a failure of natural justice as there was no opportunity to answer the submissions. On analysis, it was argued there are matters in the reasons statement which are irrelevant and relevant facts have not been taken into account. It is contended in particular that paragraphs 88 and 89 which set out the expectations of the Australian community should have entitled the applicant to answer that submission.
In the end, the question of irrelevancy was confined to the matters in paragraphs 92 and 93 of the reasons statement. In particular the comment:
I gave the difficulties his children would suffer if he was removed from Australia considerable weight but noted that Mr Rocca's criminal history and incarceration have also caused him and his family hardship
was submitted to be an irrelevant matter in which the Minister looked at past hardship when looking at future hardship. This argument can be easily disposed of. Jurisdictional error will not attend the taking into account of an irrelevant matter unless the Minister was prohibited by the statute or some statutory requirement from so doing. Such was not the case but in any event, I am not entirely satisfied that the matter raised, whatever it might mean, was irrelevant to the Minister's consideration.
The main ground arising from the contention that the reasons statement was really a submission, was that the document was a document which prejudged the outcome and contained submissions as to the weight to be given to various factors. The applicant contended that he could have responded to these matters had he been given the opportunity to do so and the failure was a failure of natural justice and/or procedural fairness. In Sokourenko v MIMIA (2003) FCA 892, Goldberg J in considering whether there was a failure to accord procedural fairness to the applicant and therefore jurisdictional error when he was not provided an opportunity to address the manner in which material was presented in an issues paper at [26] said:
It is clear that it was not necessary for either the author of the issues paper or the Minister to make available the contents of the issues paper to the applicant before the Minister made a decision based upon the matters raised in the issues paper. It has been accepted that the rules of natural justice do not require a decision maker or a departmental officer preparing material for consideration by a decision maker to disclose the reasoning process set out in preparatory material upon which the decision is to be made.
In F Hoffmann and La Roche and Co AG v Secretary of State for Trade and Industry (1975) AC 295, Lord Diplock said at [369]:
… the rules of natural justice do not re quire the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity for criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of Judges would satisfy it and trial by jury would have to be abolished.
(See also El Sayed v Minister for Immigration, Local Government & Ethnic Affairs (1991) 22 ALD 767 at 773-774; Pilbara Aboriginal Land Council, Aboriginal Corp Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 555; Somaghi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 100-108).
However, the fact that a decision maker does not have to disclose his or her chain of reasoning or evaluative conclusions to a person who may be affected by the decision maker's ultimate decision does not relieve the decision maker from communicating to such a person the critical issues or circumstances which the decision maker considers to be relevant to the determination of the issue before the decision maker; Kioa v West (1985) 159 CLR 550 at 587 - 588 per Mason J, 602 per Wilson J and 628 per Brennan J. In particular, any new matters which the person affected might not be aware of should be communicated to that person to enable that person to make a response to the decision maker or the decision maker's delegate before the final decision is made.
In my view it is quite clear from the material upon which the applicant presented to the departmental officers and the interviews and correspondence with various relevant persons set out in the issues paper that his opportunity was afforded to the applicant and the reasons statement, even if it could be regarded as a submission, did not raise new matters and accords with the statement of Merkel J at paragraph [63] in Pilbara Aboriginal Land Council (supra) where he said:
In general, a decision maker, or his or her delegate, is not under an obligation to inform the party of his or her preliminary or evaluative conclusions on the material upon which the decision maker proposes to act.
Therefore even if it could be said that the reasons statement did not constitute the reasons of the Minister but rather a submission (which I have held not to be the case) the document contains evaluative material upon which the failure to provide an opportunity to the applicant to comment, was not a failure to accord natural justice or procedural fairness.
The making of the visa cancellation decision involved jurisdictional error
Under this ground the applicant contends that the Minister failed to give any or any appropriate weight to the following consideration which it is contended are relevant considerations:
a)The best interests of the applicant's children aged under 18;
b)The applicant's absorption into the Australian community;
c)The applicant's loss of ties to his birth country, particularly having regard to his age;
d)The failure to give any or sufficient consideration to the fact that the applicant has served the sentence properly imposed in respect of the relevant offence and his rehabilitation since his arrest;
e)The applicant's contribution to Australian society save for reference to the applicant's family members; and
f)In determining the expectations of the Australia community the Minister applied a formula as to the nature of those expectations and gave no consideration to the objective expectations of the Australian community.
Firstly, a consideration of these grounds there was no requirement for consideration of the issues referred to in the precise terms in which they are raised by the applicant. Secondly however, the issues paper and the statement of reasons makes it clear that these matters were considered. The best interests of the children was dealt with in the issues paper at paragraphs 41 to 53 inclusive and in the statement of reasons at paragraphs 91 to 93 inclusive. The applicant's complaint in this respect goes to the merits of the question not to the consideration of relevant matters.
The applicant's absorption into the Australian community was not considered independently but his ties with Australia were[1].
[1] See paragraphs 54 to 71 inclusive of the issues paper and paragraphs 94 to 96 inclusive of the Statement of Reasons.
His loss of ties to his birth country are dealt with in paragraph 57 and 58 of the issues paper and 95 of the statement of reasons.
In considering the risk of recidivism the Minister took into account his good behaviour whilst in prison and his apparent progress with rehabilitation. This was weighed up, however, with considerations about general deterrence and the seriousness and type of offence. Again, the applicant's argument is misconceived as to his complaint about the weight which was given to these matters as it is clear they were considered by the Minister.
Consideration of the applicant's contribution to Australian society was not before the Minister other than in the sense that the evidence was as noted that the applicant had been a mostly law abiding citizen and it was clear he had a number of Australian citizen children and grandchildren.
In determining the expectations of the community the Minister considered the relevant matters at paragraph 88 to 90 of the statement of reasons, he accepted that the community would have some compassion for his situation. This was weighed up by the Minister against the seriousness of his offence in coming to his view. This again is really an argument about the merit or weight given to the relevant matters and not an omission to consider them.
The applicant contended that neither the issues paper nor the statement of reasons contained any information as to what attitude the Italian government had on the affect of the applicant's repatriation to their country. There is no evidence that this is a matter about which there was any real doubt, the applicant still being an Italian citizen. There is certainly no evidence that this was a matter which the Act required the Minister to set out in the statement of reasons.
Did the Minister give weight to irrelevant considerations and thereby failed to properly exercise his jurisdiction?
There are three matters which are asserted to be irrelevant considerations which are inadequately particularised. No argument was addressed in the written submissions nor was the matter advanced further in oral argument.
Did the Minister unlawfully fetter the discretion conferred on him by section 501(2) in that he confined himself to a direction made under section 499 of the Act and thereby failed to give independent consideration to the merits of the applicant's case?
The applicant contends that an administrative decision maker is entitled to be guided by policy in the exercise of discretion but that the decision maker will be taken to have fettered unlawfully the exercise of discretion in circumstances where the policy is "slavishly" followed without giving any independent consideration to the merits of the case. Such consideration, it is contended, must be "proper, genuine and realistic".
The applicant contends that the statement of reasons was composed within the four corners of Direction 21 and that the headings and language were all drawn from Direction 21. The applicant contends that the Minister gave no consideration to anything beyond Direction 21 and thereby confining himself to the considerations set out in Diretion 21 unlawfully fettered his discretion and thus failed to exercise his jurisdiction.
This case is not on all fours with Asku v Minister for Immigration & Multicultural Affairs (2001) FCA 514 an authority relied upon by the applicant in support of this contention. In that case the issues paper contained a statement to the effect that the direction considered in that case was binding on the Minister as to the weight to be accorded to relevant considerations. Here there is no argument made to the effect that weight was incorrectly attributed to the relevant considerations identified in the direction. Other than applying the policy in the direction, there is no evidence that it was inflexibly applied.
In any event, the comments of the Full Court in Madafferi v Minister for Immigration & Multicultural Affairs (2002) FCAFC 220 at [103] disposed of the issue. It was held that Direction 17 did not in its terms provide for a fettering of discretion and therefore by inference Direction 21 could not do so.
Further, in Halmi v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 1 at [54] Hill J commented:
I do not think it can be said that the Minister is himself bound by directions he makes under s 499 although, no doubt it would be appropriate for the Minister to conform to matters which he has directed others to comply with.
In Javillonar v Minister for Immigration & Multicultural Affairs (2001) FCA 845 at [28] Stone J said:
Direction 17 is made under s 499 of the Act. Although directions made under s 499 are binding on a person or body having the functions or powers under the Act, they are not binding on the Minister, Halmi v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 1; Misiura v Minister for Immigration & Multicultural Affairs (2001) FCA 133; Asku v Minister for Immigration & Multicultural Affairs (2001) FCA 514. ("Asku"). The fact that the Minister is not bound by Direction 17 does not preclude him being guided by it provided that his discretion is "a result of an independent assessment of all the circumstances of the particular case and not of the uncritical application of policy"; Minister for Immigration, Local Government and Ethnic Affairs v Grey (1994) 50 FCR 189 at 206. See also Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 419.
There is an insufficient basis for the drawing of an inference that the Minister did not independently assess all the circumstances of the case. There is no statement in the issues paper in this case to the effect that Direction 21 was binding on the Minister as to the weight to be accorded to the relevant considerations. Thus there is no merit in this ground.
For those reasons, in my view, the application must fail and must be dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 17 June 2004
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