Breach of Natural Justice
23 On the question of the adequacy of notice given to Mr Damanik the Minister relied upon copies of correspondence from the Department to him dated 12 October 1998, 9 March 1999 and 11 June 1999. A file copy of the letter of 12 October 1998 was exhibited to an affidavit sworn by the solicitor acting for the Department, Mr Corbould. According to that letter, which was addressed to Damanik at Canning Vale Prison, he was advised that as a result of his sentence and the fact that he was not an Australian citizen and had been a permanent resident of Australia for less than ten years when he committed the offence, he appeared liable for review of the question of deportation.
24 On 9 March 1999 a further letter, a file copy of which was produced, enclosed "relevant extracts from the Act on deportation liability and a copy of the government's criminal deportation policy". Damanik was warned in the letter that in his own interests he should study those papers fully. The letter opened with the observation that:
"In the administration of the Migration Act 1958, this office is required to review cases where non-citizens, through serious criminal convictions, have rendered themselves liable for deportation."
The notice dated 11 June 1999, also relied upon by the Minister, was a notice addressed to Damanik at the Albany Regional Prison. The notice warned him that by reason of his conviction he was a person who came within s 201 of the Migration Act and that the Minister had the power to order his deportation from Australia under s 200 of the Act. The Minister was said to have indicated that he proposed personally to decide whether to order the deportation and as part of that decision he might also decide to include a certificate declaring Damanik to be an excluded person under s 502 of the Act. Copies of the text of ss 200, 201 and 502 of the Act were attached. A copy of the criminal deportation policy was again enclosed. The notice warned Damanik that if deported from Australia he would not be able to re-enter. He was also warned about the effect of a declaration under s 502 treating him as an excluded person, preventing him from accessing merits review at the Administrative Appeals Tribunal. The notice concluded:
"You are invited to comment on:
. Whether you consider you come within Section 201 of the Act; and
. If you do no (sic) come within Section 201 of the Act, reasons/factors
why the Minister's discretion to order deportation under Section 200
of the Act should not be exercised against you; and
. Reasons why you do not consider that the circumstances leading
to your possible deportation would be so serious that it would
not be in the national interest to declare you an excluded person."
Damanik was invited by the notice to forward his written comments to Mr K. Graffin at the Department of Immigration and Multicultural Affairs and was given an address for that purpose. He was also told he would be offered an opportunity to participate in an interview. He was asked to acknowledge receipt of the letter by signing the statement at the foot of the duplicate copy and returning it to the office. No copy of a signed returned notice was put before the Court.
25 In oral evidence, which he gave with the assistance of an interpreter at the hearing of the application, Damanik was shown the copy letter of 12 October 1998. He denied receiving it. In October 1998 he was in Canning Vale Prison. As to the letter of 9 March addressed to him at Albany Prison he said at first he was not sure if he had received it. He then said he did not receive it. He conceded however that he did receive "…some letters but only the guidelines". He was not sure about the notice of 11 June 1999. He did recall receiving the extracts which accompanied that notice showing ss 200, 201 and 502 of the Migration Act and the General Direction No 9 setting out the Government's criminal deportation policy. He said also that he can read English although not very much and that really he does not understand. He learned English at age 16. He claimed he had had no assistance in prison reading papers and letters sent to him.
26 I regard it as improbable that the notices were not sent to Mr Damanik and received by him. Indeed, even before the liability notice of 11 June 1999 and well before his interview with the departmental officer on 20 August 1999, he sent a letter to the Department dated 10 June, the contents of which have already been summarised. The letter in printed handwriting said:
"I am writing to you in refrence to possible deportation issue." (sic)
If as he said, his ability in the English language was limited, then it would seem he had assistance with the preparation of the letter of 10 June. The issue of deportation was also canvassed in a letter of support for him from Kathryn Swan to the Department dated 17 May 1999. I am satisfied that by one means or another Damanik was aware that the Department had under consideration his possible deportation and that he was generally aware of the issues which he had to address in order to make a case against deportation. In my opinion the probabilities are that he received at least the letters of 9 March 1999 and the notice of 11 June 1999. It must be said, however, that the notices are written in the kind of language in which lawyers and bureaucrats delight but which for many people are difficult to comprehend whether or not they speak the English language. This is particularly true of the document sent out on 11 June and headed "Notice of possible liability pursuant to section 200 of the Migration Act 1958".
27 Damanik also gave evidence about his pre-deportation interview at Albany Prison. It seems that he was interviewed over two days in two sessions of one to one and a half hours each by the same officer. He said that when the officer came to see him he explained that the interview related to his liability to criminal deportation. There was said to have been no interpreter present when the interview took place. The officer took notes while the interview was going on. At the end of the interview Damanik was asked to sign the document upon which the officer had written his notes. He claimed he did not read the document and was not offered the opportunity to read it. This would have been contrary to the instructions given to interviewing officers, a copy of which was exhibited to the departmental submission, which in turn was exhibited to the affidavit of Mr Corbould filed 3 May 2000. It requires the officer, inter alia, to ask the interviewee whether the interviewee wishes to have the assessment for deportation deferred and if so why. The interviewee is also to be informed that:
"(a) he or she has rendered him/herself liable for deportation by reason of his or her conviction;
(b) the purpose of the interview is to afford him/her the opportunity of making known his/her personal circumstances and anything that he/she wishes to be taken into account when the Minister considers his/her case.
(c) he/she will be given the opportunity of reading, amending (if necessary) and signing each page of the notes."
These instructions were signed by the interviewing officer and dated. The content of the notes under each of the headings was brief. In answer to question 24, dealing with the interviewee's view of the offence and the reasons for committing it and the likelihood of re-offending and related factors was dealt with on a separate sheet. So too was question 25. Item 51 in the notes of interview required the interviewee to be invited to write a letter expressing his or her views regarding deportation or relevant matters. This was noted as "already received" and was evidently a reference to the letter of 10 June 1999.
28 On the face of it the notes on the record of interview, taken as a whole, were comprehensive and consistent with the other expressions by Damanik of the various matters going to the question of his possible deportation. In my opinion, having regard to the terms of the letter of 10 June 1999 and its mode of expression and the letter from his wife of 17 May 1999, he fully appreciated both that he was at risk of deportation and the issues that it was necessary for him to address to try to avoid that outcome. He was able to communicate adequately in the course of the interview, as evidenced by the notes of interview, what he wanted to say about the proposed liability to deportation.
29 The argument on the natural justice ground, as it was developed at the hearing, flowed from the alleged inadequacy of the opportunity afforded Damanik to put his case. It was said that as a consequence the Minister was deprived of the full picture of Damanik upon which he would have made a properly informed decision. In support of that proposition counsel relied upon the oral evidence of Damanik and a friend, Mrs Montero, who has known Mr Damanik for about five years. Counsel for Damanik put it thus:
"Essentially my submissions will be directed to this proposition, that by all accounts the applicant is a simple and good and good-natured man and that is the fact of the matter by all accounts that are available and would have been available to the department if they'd inquired properly into the matter and given the applicant proper opportunity to present the true picture of himself, but there could be no greater contrast between that and the picture which has been put to the minister and evidently adopted by the minister of the applicant which must be, in view of the order for deportation and the certificate for exclusion, a picture of the applicant as a callous and dangerous drug mastermind."
It should be noted that the oral evidence from Damanik was put on without any prior affidavits or witness statements being filed or made available to the Minister's solicitors. Counsel for the Minister requested that if any adverse inferences on factual matters going to natural justice were to be drawn from that evidence, the Minister first be given the opportunity to put on evidence in reply. In the event that course was not necessary.
30 There is no dispute that the requirements of procedural fairness apply in this case and that the decision of the Minister, being reviewable under the ADJR Act, may be impugned for want of procedural fairness. This stands in contrast to the scope of review available in respect of decisions which are judicially reviewable decisions for the purposes of s 476 of the Migration Act. Such decisions are only reviewable for want of procedural fairness where actual bias is established.
31 It is a well settled principle that the content of procedural fairness will vary from one statutory context to another and from one set of circumstances to another - National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296 at 326; Barratt v Howard [2000] FCA 190 at par 54. Importantly, procedural fairness does not mandate a judicialisation of public administration. Nevertheless in cases such as the present where there are significant consequences for the individual who will be affected by the decision and indeed for the family of that individual, considerations of fairness assume high importance. This kind of fairness does not involve any contest with the public interest in seeing non-citizens who have committed serious offences being removed from the Australian community. It is directed to the process by which such decisions are made rather than the weighting to be given to competing considerations in the exercise of the statutory discretions involved.
32 In my opinion the process which I have described earlier meets an acceptable standard of procedural fairness. The picture which Damanik sought to convey to the Minister through his comments at interview and submissions and supporting material from his wife was conveyed in its essentials. In the notice and interview processes which I have described above there are no deficiencies of natural justice which would vitiate the decisions under review. In so saying I do not wish to be taken as indicating that the processes adopted reflect the highest standards to which an administrator with a real concern for fairness could reasonably be expected to aspire. I have no doubt that the notices and procedures for interview could be improved. Nevertheless, on the face of it they do not reflect a failure of natural justice.
33 The record of interview, in question 34, suggests that Damanik was asked if he had any particular friends or relatives with whom there is a close relationship and includes the question "May we interview them." That question, if it were in fact put, might lead some interviewees to conclude that persons so mentioned would in the ordinary course be approached for their comments by the Department. Damanik mentioned his wife, Mrs Jo-Anne Montero and a Mr Kinato in response to this question. It also appears from the notes that he provided their telephone numbers to the Department. There was evidently no departmental follow-up with either of them. At the hearing Mrs Montero gave very supportive oral evidence about Damanik whom she had known for five years. She painted a picture of him which is different from that conveyed by the bare bones of the departmental submission to the Minister. On this point counsel for Damanik said:
"… one would have thought that the department, having been given names of persons who formed a network of his friends, might have called upon Mrs Montero and learned those things that we have learned today from Mrs Montero which indicate - and this is from, if I may so, an extremely solid citizen, a mother, a wife and the terms in which she has written are balanced and this is a person that should be heeded, that should have been heeded by the department, and in my respectful submission that the court should heed."
34 I am not concerned about the weight which might be given to Mrs Montero's testimony had she been consulted by the Department before preparing its submission to the Minister. What has given me some cause for reflection is the apparent failure of the Department to interview either her or Mr Kinato or to advise Damanik that it did not intend to do so. On the other hand, no submission of a breach for natural justice for this reason was put to the Court nor was any evidence adduced from Damanik that anything was in fact said to him which might have led him to believe that the Department would be approaching these people. He obviously knew their telephone numbers as he gave them to the interviewing officer and even though he was in Albany at the time of the interview and subsequently until his transfer to immigration detention in January, he could no doubt have made telephone contact and arranged for letters of support or submissions to be sent to the Department by these friends. Some months elapsed between the interview and the Minister's decision in which those steps could have been taken.
35 Although I have concerns about the way in which it appears this matter may have been approached in the interview, I am not satisfied that any breach of procedural fairness has been made out. The ground of review based on want of procedural fairness fails.