Adams v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant seeks review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Minister made under s 501(2) to cancel a visa. That provision is as follows: "(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." 2 The applicant was born in England on 18 December 1956 and came to Australia with his parents in about 1960. He has lived here ever since. A substantial part of his life since the age of 13 has been spent in jail, mainly for drug-related offences. On 4 October 2000 the Immigration Department notified the applicant of its intention to consider cancellation of his permanent resident visa under s 501(2). The letter noted that the decision, as a result of a recent policy change, was now to be made personally by the Minister which would mean that it was not reviewable by the Administrative Appeals Tribunal. 3 The applicant wrote a letter to the Department setting out reasons why his visa should not be cancelled. 4 He was interviewed on 8 November 2000. His mother and his de facto spouse Ms Legate were also interviewed. On 29 January 2001 the Department gave to the applicant a document ("the decision document"). It commences: "To: Minister, Stephen John Adams, a citizen of the United Kingdom Issues for consideration; possible visa cancellation under subsection 501(2) of the Migration Act 1958." 5 The decision document then is divided into a number of parts. Part A sets out personal details of the applicant and his immediate family. Part B, "Consideration of Visa Cancellation", notes that the relevant ground for visa cancellation is s 501(6)(a) - "substantial criminal record". It refers to annexures giving evidence of his convictions and criminal history. Part C is "Assessment for Cancellation". It refers in detail to criminal offences including burglary, possessing drugs of dependence, being armed with criminal intent, handling stolen goods, obtaining property by deception, forgery, receiving, shop breaking and larceny, extending back to 1978. It notes that he completed his most recent sentence and was released on 7 May 2000 and since then he has not come to the attention of police. Part D, "Discretion", states: "If you are satisfied that Mr Adams does not pass the character test for the purpose of section 501, it is open to you to consider whether to exercise your discretion to cancel his permanent visa." 6 Under the heading "Protection of the Australian Community", the decision document comments on the applicant's criminal history, much of which is related to his use of heroin. It states: "Although Mr Adams' offences, if considered individually, are at the lower end of the scale of seriousness, the consistency of these crimes are of particular concern. Mr Adams' crimes demonstrate a total disregard for Australian law and of the Australian community. His conduct indicates a pattern of repeated involvement in criminal activity. As such, cancellation of his visa may be a reasonable step to lessen the risk of his criminal activity to the community." 7 Under the heading, "Likelihood that the Conduct May Be Repeated (Including Any Risk of Recidivism)", the decision document states: "This issue is linked to the applicant's ability to overcome longstanding drug abuse that has been a major factor in his history of criminal offending." It notes that at his most recent interview on 8 November 2000 he stated that he has made efforts to overcome his drug usage; that he was now drug-free, having withdrawn completely from the methadone prescribed during his last custodial sentence. Ms Legate had written a letter stating that he is making a real effort to give up drugs and to stop offending. It is noted that Ms Legate herself has an extensive criminal history and has been charged in conjunction with the applicant for various offences they committed together. 8 The decision document notes that the applicant has never obtained long‑term employment due to the fact that he has spent most of his life in custody or using heroin. It records that on 8 November 2000 he stated that he had never previously been warned about possible removal and in the six months since his release from imprisonment he had not been in any trouble and is drug-free. The document then states: "Insofar as past behaviour is an indicator of future conduct, Mr Adams must be assessed as having a high risk of recidivism. He has had a heroin habit and has been committing crime consistently for most of his life. His de facto spouse also has a lengthy criminal history and a history of drug abuse. Mr Adams has never had long‑term employment and also claims that he is not directly at fault for his past criminal conduct." Under the heading "General Deterrence" it is stated: "It is reasonable to expect that the cancellation of Mr Adams' visa would deter others in the community from pursuing a life of crime." Under the heading "The Expectations of the Australian Community", it is noted: "The applicant has breached the trust of the Australian community consistently since his arrival in Australia." Under the heading "Best Interests of the Child" it is noted: "The applicant has no children in Australia aged less than 18. Ms Legate has an eight-year-old son, Ashley, currently residing with her mother. This is not the applicant's child. Ms Legate stated that although 'the eventual plan' is for Ashley to resume living with his mother and the applicant, she accepts that he is well cared for and prefers that he remain in his current stable environment at present. Ms Legate also recognised that as a former long-term methadone user she needed to ensure that her life is stable before she resumed the care of her son." The decision document states: "It is reasonable to assume that as Ashley's best interests are not dependent upon the applicant being present in his daily life, he is not likely to suffer great detriment by Mr Adams' removal." Under the heading "Other Considerations" the decision document refers to the applicant's relationship with Ms Legate which extends back over four years, and that the applicant's mother, Mrs June Axam‑Adams, states that she would not be able to cope should her son be deported. She is an elderly woman with medical problems who depends on the applicant to look after her as her current husband is also elderly. She has heart disease and diabetes. The applicant has a 22‑year‑old son who was legally adopted to another family. He has had no contact with his son but would love to see him. 9 Under the heading "Contribution to the Australian Community" it is noted Mr Adams claimed that in the few brief periods he has obtained work it has been of a significant nature. In 1974 he worked in Darwin helping the city re‑establish itself after Cyclone Tracy. In 1977 he filmed a television documentary on drug treatment systems with Terry Willesee. In 1989, whilst in prison, he assisted in eradicating a computer virus that had plagued the Australian National University. He wrote computer software for the Koori Heritage Trust and assisted in its installation and staff training. The decision document notes that none of the above lasted any considerable amount of time and no evidence has been provided to confirm these claims. 10 Under the heading "Degree of Hardship to Potential Removee" the decision document notes that the applicant considers himself to be an Australian citizen. He stated that he was "shattered" by his liability for visa cancellation. There is little doubt that he would face hardship if he were removed from Australia to the United Kingdom where he has no family, few employment prospects and no ties. It is acknowledged that, given his arrival in Australia at a young age and the length of time he has been in Australia, returning to England would present "significant difficulties". 11 Under Part E, "Decision", it is stated: "I have considered all relevant matters including: (1) an assessment of the character test within the meaning of section 501 of the Migration Act 1958; (2) the Minister's direction number 17 made under section 499 of the Act and the non-citizen's comments, if any, and have decided that -" then there appear three options. Two have been deleted and the one remaining is: "Stephen John Adams does not pass the character test, has been unable to satisfy me that he does pass the character test, and in the exercise of my discretion, I cancel the visa." It has been signed by the Minister on a date in December 2000 which is not indicated. 12 The first ground of review advanced was that there was no evidence of a visa of the applicant that could be cancelled. There was no record of his arrival in Australia or of where he was born. Having regard to the seriousness of the consequence of removal of a non-citizen, the principles of the rule in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360 to 363 should be applied. 13 The history of the provisions relating to visas and the previous regime of entry permits are discussed by Finkelstein J in Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387 at [20] to [29]. Counsel for the applicant did not challenge the correctness of the law as there stated. The net result appears to be that, although the applicant arrived with his parents in Australia at a time when no visa was required, he is to be treated now as if he had a visa. As Finkelstein J in Hall summarises the position (at [28]): "The effect of the transitional provisions and the regulations to which I have referred is that permission to remain in Australia, which was once known as an entry permit, is to be treated as permission to remain in Australia pursuant to a visa." 14 In the interview with the Department, the applicant stated that his date and place of birth were 18 December 1956 in Wiggan (sic) England. The fact that there was no evidence of a birth certificate or other record before the Minister and no record of the actual date of the applicant's arrival in Australia does not, to my mind, lead to the conclusion that he is not to be treated as having a visa which is subject to cancellation in accordance with s 501. At common law evidence by a witness of his or her date and place of birth is, strictly speaking, hearsay and inadmissible if challenged (Cross on Evidence, 5th Australian edition, at 1018). But in an administrative context when the rules of evidence do not apply there is no reason for not adopting a commonsense approach. The Department was entitled to rely on what the applicant said as to his date and place of birth. 15 Then it was argued that procedures required to be observed by the Act were not followed and the ground of review under s 476(1)(a) was made out. The same matters were also said to go to jurisdiction and involve an error of law within the meaning of s 476(1)(c) and (e). Also there was said to be no evidence - s 476(1)(g) as qualified by subs (4)(a). 16 Section 501(G) sets out procedural requirements in relation to, amongst other things, cancellation of a visa under s 501(2). Much of the applicant's case in relation to this was based on an alleged failure by the Minister to comply with a direction issued under s 499(1) of the Act. 17 There are, to my mind, two short answers. First, a substantial body of authority in this Court holds that when the Minister himself makes a decision, he is not bound by direction given under section 499 (see Misiura v Minister for Immigration and Multicultural Affairs [2001] FCA 133 at 12; Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1 at 54; Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583; and Baulch v Minister for Immigration and Multicultural Affairs [2001] FCA 139 at 21). I see no reason why I should not follow those decisions. 18 Secondly, s 501(G)(4) provides: "A failure to comply with a section in relation to a decision does not affect the validity of the decision." In Misiura at [28] Madgwick J said: "There is no warrant to take an artificially narrow view of this subsection. The intention was plainly to prevent a decision such as the present being undone for failure, among other things, to set out the reasons for it. The provision is of a piece with others in the Act that put aliens as compared with citizens in a position of serious relative disadvantage as to legal redress in relation to government action." I agree. 19 Subject to the foregoing which provide, in my view, a complete answer to the applicant's case, I will nevertheless say something about the particular criticisms made. 20 It was said that the decision did not reveal how the Minister personally weighed up in his own mind the competing considerations. This was said to be a breach of part of the direction number 17(2) dated 17 June 1999. For example, there was nothing said about what the Minister thought of the rehabilitation prospects and nothing said about the applicant's claim that he never got a warning. Counsel for the applicant accepted that the present case was indistinguishable from Re Ruddock, ex parte Truong (unreported, 22 March 2001) a decision of Hayne J sitting as a single justice of the High Court. In dealing with a similar decision document, his Honour said (at p 29 of the transcript): "In my opinion it is not arguable that this document alone, or this document in conjunction with the notice, sufficiently complied with the obligation imposed by section 501(g)(1)(e). Read as a whole, the document reveals the matters that were before the Minister assigned to them a 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." 21 In my view the same can be said of the decision document in the present case. I think it will appear from the various passages that I have quoted that the document is not confined to listing a number of factors for and against. On various factors it makes comments and observations which indicate to any reasonable reader the degree of weight or lack of weight that has been attributed. For example, there is the discussion of the seriousness of the applicant's crimes compared with the pattern of repeated involvement. So that is an example of a factor being treated seriously. On the other hand, the applicant's claims to various good works are discounted to some extent because of the view that none of them lasted for very long. I am not dealing with the merits or otherwise of these views; I simply make the point there is clearly a discussion and weighing of the various considerations leading to the decision. 22 It was also said that the document did not set out the Minister's decision because it was addressed to him and was obviously prepared by somebody else. There is no substance in this argument. Clearly the information relating to the particular person prospectively liable for removal has to be brought to the Minister for him to make the personal decision and the format of the decision document seems an obvious way of doing this. 23 Finally, under the "no evidence" ground there was said to be a number of matters of which there was no evidence; the fact that he was notified in writing by the letter of 4 October 2000, the fact that his positive contributions did not last very long and the non-existent fact that the best interests of Ashley Legate did not require the applicant to remain in Australia. 24 All those matters were, in my view, simply questions of fact and matters for the decision-maker to give such weight as was thought fit. They do not fall within the no evidence ground for the reasons discussed in Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at 26 to 28. Counsel for the applicant reserve his position to argue hereafter that Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 was wrongly decided. 25 The application will be dismissed. I order the applicant to pay the respondent's costs to be taxed, including reserved costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.