George v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-01-30|Before: Nicholson J

REASONS FOR JUDGMENT 1 This is an application brought in reliance on s 39B of the Judiciary Act 1903 (Cth) for prerogative and injunctive relief from the decision of the respondent made on 29 October 2002 to cancel the applicant's residence visa pursuant to s 501(2) of the Migration Act 1958 (Cth) ('the Act').

RELEVANT STATUTORY PROVISIONS 2 Section 501(2) of the Act provides that the Minister may cancel a visa if he reasonably suspects the person does not pass the character test and the person does not satisfy him that he does so. 3 For the purposes of s 501 the character test is defined by the provisions of s 501(6), which provides: '(6) For the purpose of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or … Otherwise, the person passes the character test.' The description 'substantial criminal record' is relevantly defined by s 501(7) as follows: '(7) For the purposes of the character test, a person has a substantial criminal record if: (a) … ; or (b) … ; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or (e) ….'

EVIDENCE 4 For the applicant reliance is placed (1) on an affidavit of Ms McPherson of the Australian Government Solicitor sworn on 2 January 2003 (in the contents of which the issues document and the record of decision of the respondent appear); (2) two affidavits of the applicant, one sworn on 27 April 2003 and another on 7 March 2003; and (3) an affidavit of his de facto partner, Ms Costar sworn on 15 October 2003. So far as these affidavits address matters going to the discretion to grant relief, they are not tendered in relation to the issue of jurisdictional error. In any event, counsel for the respondent stated he is not instructed to press the refusal of relief on discretionary grounds if the applicant succeeds in persuading the Court there has been jurisdictional error. 5 For the respondent there are two affidavits of Mr Blades, one sworn on 28 April 2003 and the other on 16 October 2003. The latter is admitted on the limited basis that it does not provide evidence that the letter advising the applicant of the notice of intention to cancel his visa was sent to an address at which he was residing. Additionally, there is the affidavit of Mr GJH Walker, State Operations Manager of Outsource Australia, a company contracted by the Department of Immigration and Multicultural and Indigenous Affairs ('DIMIA') to provide mail and record management services to DIMIA's mail registry section and having held that position since December 2001. 6 In relation to the affidavit of Mr Blades sworn on 28 April 2003, there is an outstanding objection in relation to a document described as a statement of reasons for the cancellation of the applicant's visa. The applicant objects to the admission of that statement on the grounds that the issues document in Ms McPherson's affidavit is the respondent's statement of reasons.

RESPONDENT'S DECISION 7 On 29 October 2002 the respondent signed a document headed 'Minister's decision on cancellation under s. 501(2)'. It is in a standard form requiring deletions and is annexed to a document entitled 'Issues for consideration'. The undeleted portions read: 'PART E: DECISION [48] 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 have decided that: … (d) I reasonably suspect that Mr GEORGE does not pass the character test and Mr GEORGE 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.'

DOCUMENT SETTING OUT 'ISSUES FOR CONSIDERATION' 8 This document stated that the applicant was born in South Africa on 16 February 1972, had entered Australia on 10 April 1987, and that he was in a de facto relationship. 9 The document continues by stating that on 10 April 2001 the applicant was sentenced by the Court of Petty Sessions of Western Australia for the following offences: ' · 1 count of Annoyance/Intimidation by Violence/Other, imprisonment for 8 months Concurrent (Global) · 1 count Assault Occasioning Bodily Harm, imprisonment for 8 months · 130 counts Breach of Violence Restraining Order, imprisonment for 8 months Concurrent (Global) · 3 counts Damage, imprisonment for 8 months Concurrent (Global)' In respect of this it was said in the document that it was open to the respondent to find the applicant had a substantial criminal record under s 501(7)(d). 10 The document also referred to an annexure of the applicant's official criminal history. In addition to the offences for which the applicant was convicted on 10 April 2001, the record contained offences commencing on 28 July 1988 and continuing until and including 10 November 2000. These included sentences of imprisonment. 11 Under the heading 'Discretion' the document referred the Minister to directions which he had made under s 499 to guide delegates and the Administrative Appeals Tribunal in the exercise of the discretion pursuant to s 501. It was stated that the Minister was not bound to apply those directions in the exercise of the discretion and was free to place whatever weight he regarded as appropriate on the relevant factors. The applicant's record of convictions was set out in full subsequently in the document under the heading 'Seriousness and nature of conduct'. Later in the document it was noted that the applicant had not provided a submission to DIMIA in reply to the notice mailed to him on 18 February 2002 and that consequently he had not put forward any factors by way of mitigation in relation to the offences for which he was sentenced on 10 April 2001. 12 Concerning the notification to the applicant of the intention to cancel his visa, the document stated: '… [8] Mr GEORGE was notified by mail at 9 Sykes Cove Clarkson WA 6030 on 2 October 2001, of the intention to cancel the visa held by him pursuant to s.501 of the Act. That correspondence was returned to sender on 4 December 2001. He was again notified by mail on 18 February 2002, at his last known address of 42 Eucumbene Crescent Joondalup WA 6067, of the intention to cancel the visa held by him pursuant to s.501 of the Act. The cancellation ground was set out in the notice and he was invited to submit any comment that he believed relevant to the consideration of the issue of visa cancellation. Mr GEORGE has not responded to the invitation.' 13 Under the heading 'Likelihood that the conduct may be repeated (including any risk of recidivism)' the document concluded that it was open to the respondent to find that the applicant was at a high risk of recidivism. 14 Under the heading 'General deterrence' it was said, after setting out the offences committed by the applicant on 10 April 2001, that it was open to the respondent to find that the cancellation of his visa would serve as a deterrence factor against others committing similar offences. 15 Under the heading 'The best interests of the children' the document set out the follows: '[21] Article 3.1 of the Convention on the Rights of the Child (CROC) states: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." [22] Mr GEORGE is alleged to be the biological father of one child who was born of his defacto union with Nicola Costar. In the Deportation submission signed by the Delegate on 26 February 1996 which lead to a warning being administered, the allegation of Mr. GEORGE's child was tested through the office of the Registrar Births, Deaths and Marriages. That submission states: "An enquiry (sic) to the Registrar Births, Deaths and Marriages on 16 January 1996 revealed that there was no record of a birth of any child to a mother named Nicola Costar or father named Gavin Sean George." "The reason for delaying the birth registration and naming of the child is not fully known. However, it may well be that her indecision is related in some way to the department making a decision as to whether or not Mr George should be deported." In the absence of a current submission from Mr GEORGE, the current status of the child's custody is unknown. [23] Paragraph 2.16 of the Minister's Decision sets out the factors to which the decision maker should have resort when considering the best interests of the child: 24 No evidence is held describing the current nature of the relationship between the child and Mr GEORGE. 25 No evidence is held describing the duration of the relationship, including the number and length of any separations and reason/s for separation; 26 Evidence available indicates that the child is between 6 and 8 years of age; 27 No evidence is held describing the citizenship of the child; [28](e} No evidence is held describing the likely effect that any separation from Mr GEORGE would have had on the child; 29 No evidence is held describing the impact of Mr GEORGE's prior conduct on the child; 30 No evidence is held describing the time, if any, that the child has spent in Australia; 31 Mr GEORGE arrived in Australia form South Africa. The circumstances of South Africa ( the probable receiving country), including the educational facilities and standard of the health support system of that country, should Mr GEORGE not be permitted to remain in Australia and should the child be permitted to travel with Mr GEORGE, would be of a lesser standard to that available to the child in Australia; 32 South Africa would not present any language barriers for the child; 33 In view of the child's alleged age, cultural barriers are not foreseen for him in South Africa; [34] It is open to you to find from the information given that he cancellation of Mr GEORGE's visa and his removal from Australia would not have a detrimental effect on his alleged child.' 16 Under the heading 'Other considerations' the document referred to the fact that the applicant's father, mother, four sisters and two brothers and alleged de facto spouse Ms Costar are in Australia.

breach of requirements of natural justice: failure to give notice of intention to cancel visa 17 The first of the grounds in the amended application as addressed in oral argument was that the respondent failed to accord natural justice to the applicant in that the respondent failed to give notice to him and to ensure that he received such notice of his intention to cancel the applicant's visa. Consequently, it is said, the applicant was deprived of the opportunity of making submissions and providing material in support of his contention that the respondent should not exercise its discretion in favour of cancellation. 18 In his affidavit of 7 March 2003 the applicant stated that he had never lived at 9 Sykes Cove, Clarkson, although he understood that his one-time partner Ms Huxley had lived there whilst he was in prison in 2001. He also said that he went to live at 42 Eucumbene Crescent, Joondalup from about March 2002 when he resumed his relationship with Ms Huxley. The address at Eucumbene Crescent was the house of a long-term friend and acquaintance and he continued to live there until he was detained in November 2002. 19 Evidence provided in the affidavit of Mr Blades sworn on 28 April 2003 indicates that after the letter sent to the applicant at 9 Sykes Cove, Clarkson was returned undelivered a constable at the Clarkson Police Station advised the officer in charge of Immigration Compliance that the applicant was residing at 42 Eucumbene Crescent, Joondalup. That advice was dated 9 February 2002. Accordingly on 18 February 2002 the second notice of intention was dispatched to the applicant at that address. The constable had also provided a mobile and telephone number said to be those of the applicant. 20 Also in his evidence is an undated report received from the Department of Justice on 26 September 2002. In that document it is stated that the applicant was made subject to a 12 months intensive supervision order on 3 July 2002. It refers to the fact that the applicant was attending group work sessions and complying with all aspects of community supervision. 21 The applicant's submissions refer to the decision of French J in Osborne v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 416. There, a notice of intention to cancel a visa under s 501(2) of the Act had been sent to the visa holder at his mother's address. No response was received. In fact, the visa holder was living at another address and said that he had not received either of the notices and his mother had not drawn the correspondence to his attention. 22 The position in Osborne was that the notices had been sent to an address which the applicant in that case had stated would be his address after his release from prison. Although it had been his address for a short period, it was not his address at the time the notices were dispatched. French J found that there did not appear to have been any attempt by any officer of DIMIA to ascertain that applicant's whereabouts. French J referred to the fact that there was not any express provision in the Act requiring notice to be given to a visa holder as a condition of the exercise of the Minister's power to cancel the visa under s 501. However, he considered the Act contemplated some process of notification and the regulations seemed to assume as much. He said that the implied condition of notification was not absolute and it requires only that reasonable steps be taken to notify the visa holder. 23 On behalf of the applicant it is submitted that reasonable steps in relation to the present applicant required four identifiable steps to be taken. First, DIMIA should have confirmed whether the letter of notice had been actually received by the applicant by sending a letter to him to find out whether he had received the notice. Second, a phone call should have been made to his mobile or other telephone number to ascertain that fact. Third, in the absence of any acknowledgement from him and to eliminate the possibility that he had not received the notice of intention, a copy should have been provided to the Ministry of Justice with a request to hand it to the applicant upon his attendance at his next supervised meeting. Fourth, it is said that DIMIA should have contacted the applicant's parents. 24 Therefore, it is submitted that this case differs from Osborne and the decision of Ball v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 374 which applied it. The grounds of distinction are said to be the following. First, unlike in Osborne, DIMIA here was not sending a letter to the mother or parents of the applicant so it was not sending it to an address where it could be reasonably satisfied the applicant was going to receive it. It sent the letter at a time on the basis of the limited information provided to it by the Western Australian Police which contained no indication as to the length of residence at the address suggested. That is said to distinguish this case also from Ball where the letter was sent to an address where Ms Ball had lived for a number of years. 25 It is submitted that DIMIA should have followed its own procedures as they appear in the Migration Series Instruction MSI-254, par 7.7 in relation to the serving of a notice of intention to cancel. There it is stated that in general such a notice is to be given to a visa holder in writing and served on the visa holder personally by a Departmental officer where possible. Where that is not possible, the instructions envisage the notice should be given orally to the visa holder or sent by certified mail. The instructions permit oral notification where the visa holder is overseas, is in immigration clearance or has been located by compliance in the field. Instructions say that normally a written notice of intention to cancel would be given. 26 For the applicant it is contended that the requirements of MSI-254 set the minimum standard concerning what the respondent and DIMIA regard as reasonable steps to be taken to ensure that the respondent has fulfilled his obligations to afford natural justice. It is said that such argument was not advanced and the Court's attention was not directed to MSI-254 in Osborne and in Ball. 27 In submissions in response for the respondent it is agreed that it is important the information from the Western Australian Police in accordance with which the notice was addressed was received only nine days before the letter was prepared and so was current information. Additionally, such advice was not an idle tip-off but the product of recent contact with the applicant. In those circumstances it is submitted that it was reasonable for the notice of intention here to be dispatched by registered post to that address. French J accepted in Osborne that 'to send a notice of intended cancellation to his last known address is a reasonable step'. 28 There is an additional potential consideration. In April 2001 reg 2.55 of the Migration Regulations 1994 came into effect. Pursuant to reg 2.55(1) and reg 2.55(3) a document relating to the proposed cancellation of a visa under the Act may be given to a visa holder by dating and then dispatching it within three working days, by prepaid post or other prepaid means, to the person's last residential address as known to the respondent. The two notices sent to the applicant having complied with these requirements, reg 2.55(7) had effect and the applicant was taken to have received the notice 7 days after the date of the documents. However, the regulations themselves cannot set the standard as to what is reasonable: this was specifically rejected by French J in Osborne at [20], on the basis that the regulations do not in terms condition the effect of the exercise of the power under s 501. 29 In Ball at [25], Ryan J stated that the concept of a last known address in reg 2.55(3)(c) does not depend on the Minister's knowledge coming from a particular source nor does it require that the Minister's knowledge be verified in any particular way. He said that it was sufficient that the means of knowledge relied on by the Minister was reasonable in all the circumstances. 30 In my view this issue is to be resolved by application of the approach followed in Osborne and Ball. That requires the Court to form a view on whether the implied condition of notification was satisfied by reasonable steps being taken in all the circumstances. Here, unlike Osborne and Ball, the circumstances included the provisions of MSI-254, par 7.7. Given those provisions, it cannot be objectively concluded that sending of the notification to the address provided by the Police alone was reasonable. 31 In reaching this view I do not seek to hold either that MSI-254 prescribes a minimum standard of reasonableness or that any of the particular steps said to have been additionally appropriate were ones which should have been taken. It is sufficient to conclude, as I consider the evidence requires, that where the statutory provisions are to be understood as subject to the implied condition and that MSI-254 sets out a procedure which has not been followed. It follows that it was not reasonable in all those circumstances for the notification to have been sent to the address supplied without more. 32 I conclude that the applicant is entitled to review on this first ground.

breach of natural justice and jurisdictional error: failure to consider best interests of applicant's two australian born children 33 In the applicant's affidavit sworn on 7 March 2003 he deposed that he was the father of two children who are Australian citizens, one being born on 7 June 1995 and the other on 28 June 1997. Their mother was Ms Costar with whom he was in a de facto relationship between 1994 and around 2000 and from late 2001 to early 2002. 34 The content of the issues document in relation to 'The best interests of the children' has been set out above. At [22] it is recorded that an inquiry in the Registry of Births, Deaths and Marriages revealed there was no record of any birth of a child to the applicant and Ms Costar. In his affidavit the applicant testified that he was not registered as the father on his first child's birth certificate and he was unable to explain this but asserts that their mother did add his name when she registered that child's birth. 35 The case for the applicant is that the issues document should be accepted as the respondent's reasons for decision. It is said that the issues document gives no evidence that there was a child who was a citizen of Australia or any evidence of a continuing relationship between that child and the applicant and of possible detriment to that child if the applicant were to be deported. It is said that once the respondent is aware there is a child, there is an obligation to find out the most basic matters concerning the child, namely, the relationship between that child and the applicant. The case for the applicant asserts these contentions most strongly in relation to the first child because it is accepted that the respondent was unaware of the existence of the second child. It is argued in relation to the first child that the reasonable likelihood of a relationship between that child and the applicant raised the obligation on the respondent to determine the extent of the relationship so that failure to make the inquiries amounted to jurisdictional error. 36 The applicant's submissions seek support from the decision of the Full Court in Long v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218 at [32]-[57] and Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133 at [26] as well as Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608 at 617. 37 On behalf of the respondent it is accepted that the respondent did not have regard to the best interests of the applicant's second child because the then Minister was only aware of the existence of the applicant's first child. It is said that there can be no jurisdictional error by way of denial of natural justice or otherwise in that regard because of the application of Osborne and the attempts made by the respondent to notify the applicant and invite submissions. All reasonable steps having been taken to that end, it is contended there could be no jurisdictional error in proceeding. 38 With regard to the applicant's first child it is submitted for the respondent that the evidence does not establish that his best interests were not taken into account as a primary consideration. It is said that the issues document did not specify the applicant's first child was an Australian citizen but the materials annexed to it did so. In any event the overwhelming inference, it is submitted, was that the child was an Australian citizen: cf Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 at [94] per Kirby J. 39 It is necessary, first, to resolve the issue of the tender of the purported statement of reasons of the respondent's decision in the affidavit of Mr Blades sworn on 28 April 2003. Objection is taken to the admission of that portion of the affidavit and the purported statement of reasons unless and until it is verified by an affidavit of the Minister who made the decision. In this respect reliance is placed on the decision of the Full Court in Minister for Immigration, Local Government & Ethnic Affairs v Taveli (1990) 23 FCR 162 and the decisions in Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 and Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 33. I allow the objection on the basis that to admit the statement through the affidavit of Mr Blades would not, in the interests of justice, open up the decision-maker to be cross-examined if such cross-examination were appropriate. In Taveli, Davies J at 168 and French J at 178-179 pointed out the dangers and difficulties relating to statements of reasons prepared after the event. For such statements to be tendered by a person other than the decision-maker compounds those potential difficulties and would be unprincipled. 40 The next question is whether the issues document is to be taken as the record of the respondent's reasons. This is to be decided in the light of the decisions of the Full Court in Minister for Immigration & Multicultural Affairs v W157/00A (2002) 203 ALR 5 and Long (which distinguished W157/00A on the facts). I accept the submission for the applicant that whether an 'issues for consideration' document is a statement of reasons and whether it is adequate to that end is primarily a question of fact. 41 The briefing paper in the instant matter is more in accord with that considered in Long than that at issue in W157/00A. In particular the notice of the decision follows the wording at issue in Long in advising that 'the decision record … sets out the reasons for the decision.' The text of the record is addressed earlier in these reasons and is seen to point the respondent in the direction of cancellation of the visa. Having in mind the reasoning of the Full Court in Long, I find the briefing paper sets out the reasons for the Minister's decision to cancel the applicant's visa. 42 Turning attention to the issues document, it is apparent that where it addresses 'the best interests of the children' it was considerably affected by the absence of a current submission from the applicant. This was said expressly in relation to the issue of custody. A number of paragraphs state that 'no evidence is held'. Where it was stated 'no evidence is held describing the citizenship of the child' the document was in error because there was evidence of the citizenship of the applicant's first child. It is apparent that the level of information in the issues document was profoundly affected by the fact that the notice of intention to the applicant had not in fact elicited a response from him. 43 I am not able to agree with the submissions for the respondent that the 'overwhelming' inference from the information in the issues document on 'the best interests of the children' was that the child was an Australian citizen. Any possible inference of that arising from par 22 would have negated in the mind of the reader by reference to par 27. I accept the submission for the applicant that the issues document provides a lesser level of information on the interests of the children than that in Palme. 44 When the respondent turned to the decision record on the issue of the best interests of the child, he would have known of the allegations that one child was a possibility and that there was no evidence relating to that child. He would have been misinformed that no evidence was available in relation to the citizenship of the child. He would have considered, based on the information set out in the issues document, that it was open to him to find that the cancellation of the applicant's visa and his removal from Australia would not have a detrimental effect on the alleged child. 45 Nevertheless, I am unable to accept that it can be established that there was a failure by the respondent to take into account the best interests of the alleged child as a primary consideration. There are two reasons for this. First, so far as those interests were known, they were taken into account. Second, it would be artificial to conclude, as in Long, that the respondent had not considered whether the best interests of the alleged child were outweighed by other circumstances because what was known concerning the alleged child was utterly minimal. That paucity of evidence was due to the failure of notification to find the applicant and elicit a response. The absence of any evidence made it patent to the respondent that the other circumstances did outweigh what little was known, namely, that there may be an alleged child. 46 In the course of the applicant's submissions it was suggested that the respondent was under a duty to afford natural justice to the applicant's two children, aged 7 and 5. In Kioa v West (1985) 159 CLR 550 at 588, Mason CJ stated that the duty to act fairly did not extend so far as to give an opportunity to a ten month old infant to present a case against the making of a deportation order against her parents, so that the case presented on behalf of her parents was an adequate opportunity. Brennan J at 629-630 considered that the child should have such an opportunity but that it was satisfied on the basis of the representations of the parents. Deane J at 634 said that the child had no separate entitlement to be heard in relation to any such orders despite their consequential effect for her. The applicant contends that here when no submissions were made or received, the children's interests have not been met and the duty to afford natural justice to the elder child remain unsatisfied. 47 All that was known to the respondent was an allegation that the applicant was the biological father of one child and that could not be tested successfully through the Registry of Births, Deaths and Marriages. In the circumstances I do not consider that it could be said that an obligation to afford natural justice to at least the eldest child arose on the respondent. That may have been different if the child had been identified or further information given concerning his location or existence but all that can be said is such were not the circumstances in the present case. 48 Therefore I do not consider the application for review should succeed on the ground that the respondent did not in the circumstances take into account the relevant consideration previously referred to.

Jurisdictional error: wrong computation of terms of imprisonment 49 This ground contends that the respondent erred in law in determining that the applicant had a substantial criminal record because the respondent had regard to the applicant's four convictions in 2001 in circumstances where the sentences were to be served concurrently with a term of imprisonment of 8 months. The applicant's contention is that the respondent approached the matter in a way which overlooked that the sentences were concurrent. It is said that this led the respondent into error of the finding that the requirement of the sentences totalling more than 2 years or more of imprisonment wrongly to be met. 50 There is no jurisdictional error raised by this ground. This is because having regard to the applicant's record of offences giving rise to a sentence of imprisonment and excluding concurrent offences, the applicant is seen to have been sentenced 8 terms of imprisonment totalling 4 years 1 month. The applicant's position is therefore legally and factually distinguishable from those in Ball and Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [65]-[77]. Consequently, there is no need to consider whether those decisions were incorrectly decided. 51 This ground cannot therefore succeed.

CONCLUSION 52 For these reasons I consider the application should be granted and the matter remitted to the respondent for determination in accordance with the law.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Solicitor for the Respondent: Australian Government Solicitor

Judiciary Act 1903(Cth)ss 39B, Migration

Migration Act 1958(Cth)ss 499, 501

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