Rocca v Minister for Immigration - [2004] FMCA 332

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FMCA 332
Decision Date: 17 June 2004

CaseChat Overview and Summary

The case of Rocca v Minister for Immigration involved a dispute regarding the cancellation of the applicant's visa under the Migration Act 1958. The applicant, Mr Rocca, argued that the reasons provided for the cancellation of his visa were not the actual reasons of the Minister, as they were prepared by someone else, and thus, the Minister could not have reasonably given those reasons nor reached the decision he purported to make. The applicant contended that the failure to provide written notice as required by the Act constituted a total failure, rendering the decision invalid. The Minister, on the other hand, maintained that the brief prepared by the Department constituted sufficient compliance with the Act.

The legal issues before the court were whether the reasons for the cancellation of Mr Rocca's visa, prepared by someone else, could be considered the actual reasons of the Minister, and if the failure to provide written notice as required by the Act constituted a total failure. The court had to determine whether the Minister's decision to cancel Mr Rocca's visa was valid, given that the reasons provided were not personally prepared by the Minister.

The court found in favour of the Minister, dismissing the applicant's contention that the reasons provided were not the actual reasons of the Minister. The court referred to the decision in Javillonar v Minister for Immigration and Multicultural Affairs (2001) FCA 854, where it was held that the brief prepared by the Department constituted sufficient compliance with the Act, and that it was irrelevant that the document was not prepared by the Minister personally. The court further noted that the matter was put beyond doubt by the terms of the notice that were given to Mr Truong, which set out the reasons for the decision that was reached.

ORDERS:

1. That the Application be dismissed.
2. That the Applicant pay the Respondent’s costs fixed in the sum of $3,000.

Orders

Orders of the court

THAT the Application be dismissed.

THAT the Applicant pay the Respondent’s costs fixed in the sum of $3,000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.