Tran v Minister for Immigration
[2004] FMCA 327
•27 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRAN v MINISTER FOR IMMIGRATION | [2004] FMCA 327 |
| MIGRATION – Cancellation of visa – criminal history – reliance on sentencing remarks of trial judge – properly relied upon – synthesis of facts relevant – issues document not reasons. PRACTICE AND PROCEDURE – Video link appropriate where Applicant in detention and represented by Counsel at hearing. |
Migration Act 1958, ss.30, 474, 474(1), 501G(1)(e), 501G(4), 501(2), 501(7), 501(7)(c)
Federal Magistrates Act 1999, s.67
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Griffiths v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 249
Minister for Immigration & Multicultural & Indigenous Affairs v Griffiths (2004) FCAFC 22
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327
Kioa v West (1985) 159 CLR 550
Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502
Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Island Affairs (2000) 175 ALR 706
Sokourenko v MIMIA (2003) FCA 892 (27 August 2003)
| Applicant: | BUI DO TRAN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 392 of 2003 |
| Delivered on: | 27 May 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 27 May 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr L Linden |
| Solicitors for the Applicant: | Access Lawyers |
| Counsel for the Respondent: | Mr P Gray |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application be dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 392 of 2003
| BUI DO TRAN |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this application the applicant seeks to review a decision of the respondent made on 18 December 2002 pursuant to s.501(2) of the Migration Act 1958 (the Act) to cancel the applicant's visa.
The factual background is not in dispute. The applicant was born in Vietnam on 12 December 1976. He arrived in Australia on 22 August 1990, then aged 13 years. By letter dated 3 August 2000 the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") notified the applicant that he was being considered for deportation by reason of his convictions and sentence for offences before the Sunshine Magistrates Court on 11 April 2000.
By letter dated 13 July 2001 DIMIA notified the applicant that by reason of a recent policy change the Minister or his delegate would consider whether or not to cancel his visa. Again his conviction and sentence for offences before the Sunshine Magistrates Court on 11 April 2000 were relied on for the visa cancellation proposal. It is noted that the letter dated 13 July 2001 attached the full text of s.501 of the Act and contains the following paragraphs:
“You are currently the holder of a subclass 155 visa granted to you on 18 March 1994. This visa is currently your sole authority to travel to and enter Australia or remain in Australia.
On 3 August 2000, you were informed that you may be liable to criminal deportation under section 200 of the Migration Act 1958 (the Act).
...
Before the Minister or his delegate considers whether to cancel your visa under subsection 501(2), you are provided with an opportunity to comment. Matters to be taken into account include the following:
· Your criminal convictions for assault with weapon, robbery, possess drug, possess heroin, use drug, possess regul.weapon, and fail bail.
In reaching a decision whether to cancel the visa the Minister will have regard to the matters noted above and the attached Minister's Direction No 17 titled 'Direction under Section 499 - Visa Refusal and Cancellation under Section 501 Migration Act 1958'.”
A further letter from DIMIA dated 3 September 2001 provided the applicant with a new policy document, Direction 21, relating to the proposal to consider cancellation of his visa.
It is not disputed that the applicant was interviewed and that a case officer for DIMIA prepared a document entitled, "Issues for Consideration for possible Visa Cancellation under Subsection 501(2) of the Migration Act 1958" ("the issues document") and that it was submitted to the Minister to assist him in formulating his decision. The issues paper was prepared by the officer who interviewed the applicant. A transcript of the record of interview is reproduced in the court book. In the interview it is noted that the police report dated 3 August 2001 was read out to the applicant who then made comment which in part asserted that the report, particularly that referring to the convictions of 11 April 2000, was not accurate.
It is not in dispute that the issues, documents and the information which accompanied it were not supplied to the applicant for comment and response prior to the document being submitted to the Minister for his consideration prior to decision.
It is useful to set out the applicant's criminal history upon which it is suggested in the issues document that it would be open for the minister to find that the applicant had a substantial criminal record under s.501(7)(c) of the Migration Act. The summary of offences, which appears at page 20 of the court book, is as follows:
| COURT | OFFENCE | SENTENCE |
| Melbourne County Court 20/6/02 | Armed Robbery Intentionally Cause Injury Intentionally Cause Injury | 2 years. Total 3 years. Non-parole period of 21 months. |
| COURT | OFFENCE | SENTENCE |
| Melbourne Magistrates Court 11/04/00 | Possess Heroin Robbery Possess drug of dependence (not named) Fail to answer bail (2) Assault with a weapon State false name when requested | 4 months imprisonment concurrent. Effective total State term imposed is 1 year 4 months. Non-parole period fixed at 10 months. |
Part of the material before the court and available to the Minister included the sentencing of the applicant by the County Court on 20 June 2002. The synthesis of facts found by the learned sentencing trial judge are adequately set out in the first three paragraphs of that sentence as follows:
“Tran Doi Bui has pleaded guilty to two counts of armed robbery (maximum penalty 25 years’ imprisonment) and two counts of intentionally cause injury (maximum penalty ten years’ imprisonment).
The offences were committed at the high rise flats in Richmond. One of the victims, a schoolboy, lives at the flats. He and three school friends were returning home from school on 4 June 2001 at about 4 pm. They entered the flats. The four boys entered a lift, the offenders followed. The prisoner produced a pair of pliers and asked for money. The offenders included the prisoner, a co-offender, Shane Paul Victor, and another man who has not been identified. Further demands were made for money and a boy's wallet and blazer.
The prisoner took $50 from the wallet. He punched one of the boys in the face and elbowed the second boy in the chin. Later, when the prisoner tried to take one of the boy's watch, he punched him in the eye and further punched him. He tried to kick the other boy and punched him in the mouth causing three of his teeth to be slightly pushed in. The counts of armed robbery relate to the taking of the blazers and wallets from each of the boys and the counts of intentionally cause injury relate to the punching of each of the two boys. All of the items were recovered except for $50 cash. The boys' blazers were damaged.”
It was also noted in the sentence that at the time of the offence the victims were then aged 13 and 14. Reference was made to the background of the applicant and it is noted the court referred to the applicant as having a "long-term drug problem". The court stated in relation to the applicant the following:
“He has an extensive criminal history from about the age of 17 involving 16 appearances in the Magistrates’ Court for a total of 57 convictions including 21 convictions for drug matters.”
The court considered and rejected a submission that this was an appropriate case to be adjourned so that a pre-sentence report in the form of a psychological or psychiatric assessment could be undertaken. The learned trial judge stated:
“… I indicated at the time I considered, in light of the fact that it was inevitable the prisoner would be sentenced to a significant period in goal, that such an assessment would be inappropriate at this stage. However, in view of the matters raised in the plea, it will be appropriate to ensure that the prison authorities are made aware of those matters so that the maximum advantage can be taken by the prisoner of the time he will inevitable (sic) spend in custody.”
The issues document which was prepared following interview with the applicant referred to a list of documents upon which the background information had been based. It included the transcript of the proceedings before the sentencing in the County Court on 20 June 2002. It is noted that there has been no appeal lodged in relation to the sentence and that the applicant pleaded guilty. In my view, the synthesis of facts of the learned trial judge should properly be relied upon, both by this court and the Minister.
To the extent that submissions were made during the course of this hearing on behalf of the applicant that an analysis should be undertaken of the transcript of the proceedings before the sentencing judge and/or that matters not taken into account should be considered by the minister, I consider that does not mean that the Minister or the court would be entitled to reject the synthesis of facts as found by the sentencing court at the time. There may be other matters which are considered relevant in the exercise of the discretion of the Minister properly brought to his attention via the applicant or raised in the issues document.
The issues document also contained a number of references to matters raised by way of mitigation by the applicant in his interview with the department and in correspondence dated 7 January 2003. Specifically, it was noted that the applicant did not agree with the police report concerning incidents that had occurred in October 1999 and otherwise sought to explain further the incident which was the subject of the County Court conviction to which I have referred. Reference was made in the issues document to the applicant's heroin addiction and drug treatment. By way of background further reference was made to the fact that the applicant has one step-daughter and it was noted that it would be open for the Minister to find from the information given that cancellation of the applicant's visa and removal from Australia would have a detrimental effect on the step-daughter. Reference was also made to the applicant forming a relationship with the step-daughter's mother in December 2000 and that they had resided together for a period of six months prior to the applicant's arrest for the armed robbery charges.
Other matters in the issues document raised concerned references relied upon by the applicant from the social worker at the Brosnan Centre, a description of the contribution of the applicant to the Australian community, the fact that the applicant's father and step-mother reside in Australia and that he had never met his mother or any of his aunts, uncles and cousins who are resident in Vietnam and that upon his return to Vietnam there would be no-one to provide him with accommodation or assistance in finding employment.
The Minister's decision dated 20 February 2003 on cancellation under s.501(2) provides the following:
“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 Mr Tran's comments, and have decided that:
I reasonably suspect that Mr Tran does not pass the character test and Mr Tran 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.”
Preliminary Issue
Before considering further submissions made for and on behalf of the applicant, it is appropriate to deal with a preliminary issue which arose at the commencement of the hearing. It had been submitted by the applicant's counsel that the applicant was entitled to attend the hearing in person. A video-link had been established with the applicant who is currently a detainee at the Baxter Detention Centre. It was submitted that in the circumstances the applicant was entitled to be present in court and that the court should make a direction that the respondent arrange for the attendance of the applicant in person. A number of authorities were referred to during the course of the discussion on the issue of whether the applicant should be directed to attend in person rather than appear by video-link.
I ruled, pursuant to s.67 of the Federal Magistrates Act 1999, that the applicant be permitted to appear by video-link and indicated to the parties that I would incorporate my reasons for that ruling in this decision. In my view, it is appropriate in considering an application for judicial review to ensure that an applicant, where practical, appears in person to ensure that the applicant has an opportunity to hear and see the proceedings. However, it is also important for courts to make use of technology which will avoid cost and expense which may otherwise be incurred in arranging for the attendance of an applicant in court.
Where the applicant is represented by counsel and an instructing solicitor who in turn rely upon written submissions previously forwarded to the applicant, it is my view that the video-link facility is adequate as the applicant can both see and hear the proceedings and will of course be aware of the arguments to be advanced on his behalf. In the present case I also gave the applicant's counsel an opportunity to make further written submissions by way of reply if instructed to do so by the applicant. In addition, the video-link facility was made available for the applicant and/or his instructing solicitor to obtain further instructions either at the end of the applicant's submissions or at the end of the respondent's submissions so that a reply would be given on instructions.
In all the circumstances, I am satisfied that it was in the interests of justice to proceed in the manner described with the applicant appearing by video-link. In my view, many of the submissions raised by counsel for the applicant involved the desirability of an accused in criminal proceedings being present during the trial processes where witnesses are examined and cross‑examined. That is not the case in an application for judicial review where the applicant is represented by counsel and a solicitor who primarily make submissions on behalf of the applicant on matters of law. It would be incorrect to assume, therefore, that there is a valid analogy between proceedings by way of judicial review and criminal trial.
Whilst I have no difficulty accepting that at a criminal person an accused person, particularly unrepresented, should be present unless expressing a view to be absent or deciding not to attend or in the case of a represented party being satisfied to permit the proceedings to continue in his or her absence, I do not believe it is appropriate to apply the same principles on an application for judicial review. The circumstances may vary from case to case, and in my view, it may well be desirable in certain cases, particularly where the applicant is unrepresented, that he or she be present in a courtroom situation, which in the case of many applications for judicial review of decisions made under the Migration Act may well be desirable so that applicants may be assured that there is a properly convened court with a judicial officer presiding and the applicant has an opportunity to be heard with the principles of natural justice observed.
In the present case I was satisfied that a fair hearing could be undertaken with the applicant represented and appearing by video-link, and in addition, with the further opportunity to make written submissions at the end of the oral hearing. In fact the court ordered that the applicant should be permitted to file and serve supplementary submissions in writing on or before 9 February 2004 with the respondent to file and serve supplementary submissions in reply on or before 23 February 2004 and thereafter it was indicated the decision would be reserved. The only restriction on the submissions for both parties was that I ordered that they should be limited to five A4 pages.
Relevant Legislation
The relevant legislation has been accurately and fairly set out in the respondent's contentions of fact and law and it is not necessary to repeat those in detail, save to note that the "character test" is defined in s.501 of the Act and that the cancellation decision, as indicated earlier, was made pursuant to the minister's power under s.501(2) of the Act. I accept that it is clear in the present application that the applicant has a substantial criminal record within the meaning of s.501(7) and that in the circumstances, having regard to the criminal history, would not pass the character test within the provisions of s.501(7)(c) of the Migration Act.
In the context of the relevant legislation it is appropriate to refer to a submission made for and on behalf of the applicant that although there is a discretion conferred on the Minister to make a decision, there is no obligation on him to do so. In my view, there is no error which arises from the fact that the minister decided to exercise a discretion in circumstances where it may be made by either the Minister or his delegate. There is no substance in any criticism of the fact that the Minister made the decision rather than a delegate, in my view.
Privative Clause
For the purpose of this application I note and accept the submissions made for and on behalf of the respondent in this application where after referring to s.474(1) of the Act it was submitted that a decision would 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 the 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) 211 CLR 476 (Plaintiff S157) per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [76]).
I further accept for the purpose of this application the submission made by the respondent that the task of determining whether a decision (such as the cancellation decision) is a privative clause decision is not simply a case of determining whether the particular alleged error would have amounted to "jurisdictional error" in the absence of a privative clause. This is because, as submitted correctly in my view, it may be that by reference to the words of s.474 some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of the decision (see Plaintiff S157 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [69] and [77]).
Specific Grounds and Reasoning
The applicant relied upon an amended application filed 26 June 2003. In that application certain grounds are relied upon whereby it is claimed that jurisdictional error has occurred. Essentially it is claimed that there was a denial of natural justice and/or procedural fairness in that the notifications in the correspondence of 13 July 2001 and 3 September 2001 were an inadequate discharge to the respondent's obligation to comply with the rules of natural justice. In support of that ground it was submitted that the applicant was not provided with copies of all the information which was ultimately relied upon by the minister. It was argued that the documents which weren't provided had failed to inform the applicant as to what is described as the "critical issues or factors on which the decision was likely to turn, and the gravamen of any adverse matters" that might influence the decision‑maker to exercise a discretion. It was submitted that the applicant had been invited to comment "in a vacuum".
The respondent by way of reply referred the court to the interview conducted on 12 December 2002 referred to earlier in this judgment. In my view, a proper reading of that interview and the matters raised provide clear and sufficient disclosure of the significant issue, namely, the serious convictions and prison sentence, so that the applicant at all material times would be well aware of what is described as "the gravamen of any adverse matters". In many respects this is not a complicated matter as the criminal history and sentence, together with the nature of the offences, and in particular the armed robbery counts, are patently serious matters. On any proper reading of the legislation it is clear that these matters would be the focus of considerable attention by the Minister and would need to be addressed by the applicant. Indeed they were brought to the attention of the applicant and he did respond in the interview on 12 December 2002.
I reject the suggestion that the applicant did not know the case he had to answer or that he was invited to comment "in a vacuum". The issue, in my view, was very clearly put to the applicant and it is difficult to conceive that he would not be aware that it would not be considered by the Minister.
Ground 2 of the notice asserts that the applicant had been denied natural justice and/or procedural fairness in that he was not given any reasonable opportunity to make submissions to the respondent as to whether he should make the visa cancellation decision personally rather than by a delegate. It was submitted that in the circumstances the applicant should be given an opportunity to make a comment on that decision and that no warning was given that by reason of any policy or practice the Minister would make the decision personally.
In reply it was submitted by the respondent that all that was required was that the applicant would be aware that the Minister may personally make the decision in question. This was made clear in the letter of 13 July 2001, an extract of which appears earlier in this judgment. At that point the applicant had the opportunity to make whatever comments he wished to on that issue. It was further submitted by the respondent that in any event the minister is not required to invite the applicant to comment on whether he would consider exercising the power under s.501(2) of the Act. The Minister, it was submitted, is expressly empowered by that provision to make (and to consider making) the decision in question.
Whilst the respondent concedes that principles of natural justice require that the Minister's power under s.501(2) of the Act to cancel the applicant's visa was attended by obligations by fairness that would include an obligation to allow the applicant to make submissions as to whether the visa should be cancelled, it was submitted that this is completely different to the proposition that the Minister was not entitled to embark upon considering the exercise of the power to cancel the visa until he has afforded the applicant an opportunity to make submissions as to whether the Minister should consider cancelling the applicant's visa or whether the matter should be dealt with by a delegate.
In my view, there is no legal principle which arises in support of ground 2 as there is clearly ministerial power to make the decision to cancel the visa and there is no breach of rules of natural justice by denying the applicant an opportunity to be heard as to whether or not the minister or a delegate should make the decision. It is a matter entirely for the minister to decide, and if he chooses to delegate the power, then he may do so. But, in my view, there is no principle in law which requires him to do so in the context of this application. Hence, ground 2 fails.
Ground 3 of the amended notice of appeal relies upon a further breach of requirements of natural justice and/or procedural fairness and/or alternatively procedures "required" to be adopted in connection with the making of the decision in s.501G(1)(e) of the Act not being observed because the respondent either did not have any reasons for arriving at the visa cancellation decision, or alternatively, did not inform the applicant of "them".
In support of this ground it was submitted by the applicant that subparagraph 501G(1)(e) of the Act provides an obligation to give to the person a written notice that sets out the reasons for the decision. In particular, as I understand the submissions on behalf of the applicant, there is complaint that the issues document was not provided to the applicant prior to the decision being made. In written submissions reliance was placed upon a decision of this Court in the matter of Griffiths v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 249 where the Court stated at paragraph 54 the following:-
“54.It was submitted that any lack of reference in the decision to the consequences to the applicant of the respondent proceeding under s.501(2) does not amount to improper exercise of power but at best should be regarded as a failure to take into account a relevant consideration. That is not a matter which would justify review according to the respondent's submissions. Even if it were a factor which potentially may be regarded as jurisdictional error, then it was submitted the respondent in any event was not bound to take it into account. Reference was made to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 73 and 74 (Yusuf) per McHugh, Gummow and Hayne JJ as follows:-
‘The considerations that are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider
This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example the particular statute makes the matters which are advanced in the course of a process of decision-making, relevant considerations for the decision-maker. What is important, however, is that the ground for judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are essentially concerned with the process of making particular findings of fact upon which the decision-maker acts.’”
It should be noted that a matter was the subject of an appeal to the Full Court of the Federal Court of Australia and in a decision delivered on
13 February 2004 in Minister for Immigration & Multicultural & Indigenous Affairs v Griffiths (2004) FCAFC 22. The decision of this Court was set aside. I shall refer to relevant extracts from that decision in due course.
The respondent in reply to the arguments advanced in relation to ground 3 relied upon the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 at paragraphs [36]-[48] (per Gleeson CJ, Gummow and Heydon JJ) and per McHugh J at paragraphs [54]-[58] and [62]. It was submitted that the issues document in the Palme case was held not to be "reasons" for the purpose of s.501G(1)(e). It was further submitted, in any event, that the giving of reasons for the decision was not essential to the validity of the Minister's decision to cancel the applicant's visa (see s.501G(4)). In that context reference was again made to the decision and relevant paragraphs in Palme.
In my view, the issues document as a matter of law does not constitute reasons for the decision, although it does provide material which would reasonably lead the court to conclude that the Minister did have reasons for the cancellation decision. Hence, I accept the submission by the respondent that even if the issues document is not a statement of reasons, this would not provide a basis for an inference that the minister "had no reasons" for his decision. I accept it is relevant to apply the decision in Palme at paragraph [39] (joint judgment) and paragraph [62] (McHugh J) as follows:-
“39.It was decided by this Court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd, where an order for prohibition under s 75 (v) of the Constitution was made, that the "inadequacy" of the material on which the decision-maker acted may support the inference that the decision-maker had applied the wrong test or was not "in reality" satisfied of the requisite matters. Given the detail supplied in the Submission (including the annexures) and the statement by the Minister set out above, and not challenged, that he had considered all relevant matters, the decision in Melbourne Stevedoring is of no assistance to the prosecutor. Nor, for the same reasons, is the statement by Gibbs CJ in Public Service Board of NSW v Osmond, made with reference to Padfield v Minister of Agriculture, Fisheries and Food, that "if the decision-maker does not give any reason for his decision, the court may be able to infer that he had no good reason". That inference is not open here.
…
62.Finally, there is no basis for the claim that the Minister's decision was so unreasonable that no Minister could properly have made it. The prosecutor's conviction and sentence for murder entitled the Minister to cancel the visa. Although the brief fairly mentioned matters that might have caused the Minister to refuse to cancel the visa, they were not so overpowering that the Minister's decision could even arguably be said to be unreasonable.”
In the circumstances the natural inference to be drawn is that the Minister did have reasons for making the decision. It is now relevant to note that the Full Court of the Federal Court in the matter of Griffiths to which I have referred applies the decision of the High Court in Palme’s case. It is noted the decision of the High Court in Palme’s case post dated my decision in Griffiths by almost four months. The Full Court in Griffiths states the following:-
“17.The substance of the appellant’s submissions can be stated quite simply. Senior counsel submitted that the application in the present proceedings was on all fours with the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 201 ALR 327 (“Palme”) and that, accordingly, the Federal Magistrate’s decision was contrary to that of the High Court, albeit that the High Court’s decision was handed down approximately four months after the decision in the present proceeding. He submitted that, to the extent that the procedural unfairness and the Wednesbury unreasonableness ground were based on a failure of the Minister to deliver reasons, that finding was contrary to what the majority of the Court said in Palme.
18.In our view, the present proceedings are indistinguishable from Palme. True it is that it may be said that the offence in Palme was objectively more serious than the offences committed here. But once it is conceded that the character test is not met, the characterisation of the seriousness of the conduct and the question whether the Minister should cancel the visa is a matter for the Minister, in the exercise of his of her discretion. Of course, before arriving at the decision the Minister must accord procedural fairness to the person whose visa is under consideration.
19.The respondent’s counsel submitted that here the Minister had purported to give reasons in the issues paper which were “ineffective” as reasons because they did not satisfy s 501G(1)(e) of the Act. It was therefore submitted that this in some way distinguished the matter from Palme in which, the respondent contended, no claim was made that the issues paper constituted the reasons for the Minister’s decision. According to the respondent, the argument in Palme was simply that the failure to give reasons was a breach of the requirements of natural justice, whereas in this case the giving of “ineffective reasons” was both a breach of those requirements and permitted the Court to look into the reasonableness of the decision. We do not consider such a distinction to be sustainable.
20.The Federal Magistrate’s decision proceeded on the basis that the issues paper did not constitute a statement of reasons as required by s 501G(1)(e). The Minister’s counsel did not challenge that finding on appeal and the respondent sought to uphold the Magistrate’s finding (although at no stage did the respondent seek any reasons). The respondent cannot at one and the same time rely upon the Minister’s failure to give reasons and upon the Minister’s giving of “ineffective reasons”. Either the Minister gave reasons, which can be challenged, or the Minister failed to give reasons and can be compelled (in appropriate proceedings for that purpose) to fulfil his statutory duty to do so. The appeal, therefore, turns on the respondent’s submission that the absence of reasons in this case permitted the learned Magistrate to make the finding he did.
21.The High Court’s decision in Palme makes it plain that the submission cannot be accepted. As Gleeson CJ, Gummow and Heydon JJ said at [48], a visa cancellation decision may be reviewed for jurisdictional error and the error may be found in what is disclosed in the reasons provided under s 501G(1)(e). But as their Honours also observed at [48], what is not provided for is for a person whose visa has been cancelled to refrain from seeking to compel the Minister to produce reasons by the issue of a writ of mandamus and also to seek to impeach the visa cancellation decision itself as a consequence of the failure to discharge the duty to provide reasons.
22.McHugh J’s observations at [55] and [57] were to precisely the same effect.”
It is clear from a proper reading of that material that the Full Court of the Federal Court has applied the High Court decision in Palme and in the circumstances as I have indicated I am satisfied that there is no error.
I should add for the sake of completeness that if the Full Court decision in the matter of Griffiths had raised a matter which was beyond the application of the principles in Palme’s case then I would have permitted the parties to make further submissions arising out of the Full Federal Court’s decision in Griffiths given it was decided on 13 February 2004. I see no reason to do so in the circumstances and having regard to the paragraphs set out above.
Again, in my view, it is clear on the material in this case, and indeed one might even suggest it is patently obvious, that the criminal history and associated matters, including those matters raised by the applicant himself at interview and otherwise in documents, were before the Minister. Any proper reading of the relevant legislation would make it clear that the significant issue was that the applicant had failed to pass the character test clearly referred to and set out in the legislation. Ground 3 should, therefore, fail.
Ground 4 in the amended claim also referred to the failure to invite the applicant to make submissions in response to the issues document and has been adequately dealt with earlier in this judgment. For the sake of completeness I otherwise accept the respondent's submissions in relation to this issue as it is clear, again from the facts of the present case, that from a practical point of view there is little doubt that the applicant would be well aware of the matters in issue and had the opportunity, and indeed took the opportunity, to address the minister through the interview process and correspondence in relation to those issues. It is not appropriate in judicial review, in my opinion, for the court to provide a further opportunity for the applicant to raise new matters not raised earlier when the opportunity was given and the matter in issue clearly identified. Nor should the Applicant rely on issues perhaps not raised before the sentencing court and seek to have this court reach a different conclusion as to the facts and circumstances surrounding the commission of the offences which have been appropriately described in the synthesis of facts as determined by the sentencing judge.
I can see nothing in the making of the decision which in the present case would fail to accord with the principles of justice, nor could it be suggested that there has not been an opportunity for the applicant to comment on the substantive issue. It is not appropriate for the applicant to be given an opportunity to comment on every piece of information. (see Kioa v West (1985) 159 CLR 550 per Mason J at 585 and per Brennan J at 629) I am otherwise satisfied that in the present case the applicant has been given an opportunity of dealing in an appropriate way with the matters which he would reasonably have expected to be able to deal with and which might assist his case (see Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 per Fox J at 506; see also Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Island Affairs (2000) 175 ALR 706 per Merkel J at [62]-[72]; see also Sokourenko v MIMIA (2003) FCA 892 (27 August 2003) per Goldberg J at [30]-[38]). Accordingly, in my view, ground 5 must fail.
In ground 6 it had been argued that the Minister had "slavishly followed" direction 21 in making the cancellation decision. In my view, on the material before me there is no evidence to support that conclusion. There is ample evidence to suggest that there is material before the Minister to which I have already referred which will provide a basis for the Minister's decision. I am not prepared to accept the criticism said to arise from ground 6 of the amended notice of appeal.
Ground 7 claimed that there was no evidence before the respondent of the class of visa which the applicant held and therefore the visa cancellation decision was made in breach of jurisdiction given by s.501(2) of the Act in that the respondent did not cancel an "identified visa". Although this ground was maintained, it was not strongly pressed. It is clear from the material that the resident return visa (subclass 155) has been referred to and indeed there was reference to that matter in the issues document and in correspondence. For example, as far back as a letter dated 13 July 2001 reference was made to the applicant being a holder "of a subclass 155 visa". In my view, there is no substance in ground 7 and I accept the submissions of the respondent. The Minister pursuant to s.501(2) of the Act has power to "cancel a visa that has been granted to a person". As indicated, the visa originally granted and the visa held by the applicant at the time of cancellation was clearly identified in the issues document.
It is sufficient to note, and I accept, that immediately prior to the cancellation decision the applicant held a "visa" within the meaning of the act and that the visa was a permanent visa within the meaning of s.30 of the Act. These facts were clear in the issues document. There is no error arising out of this ground.
Conclusion
It follows therefore that the application should be dismissed with costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Mcinnis FM
Associate:
Date: 28 May 2004
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