Lorenzo v Minister for Immigration & Multicultural & Indigenous Affairs and Commonwealth of Australia

Federal Court of Australia|2004-04-16|Before: Gaudron J, Hill J

REASONS FOR JUDGMENT 1 The Applicant, on 23 September 2002, commenced proceedings in the High Court seeking an order nisi for a writ of prohibition and in addition, injunctive relief. Gaudron J remitted the proceedings on 6 February 2003 to this Court for hearing. 2 When the hearing of the matter commenced the parties requested an order, by consent, that the Application be treated as an application for an order absolute that the Respondent Minister be prohibited from giving effect to a decision or decisions, purporting to be made by the then Minister on 25 May 2002 under s 501(2) of the Migration Act 1958 ("the Act") cancelling the Applicant's permanent visa and issuing to him in its place a bridging visa Class E to allow the Applicant to remain in Australia to complete his custodial sentence. The Applicant sought also an injunction restraining inter alia the Minister from removing the Applicant from Australia. I made that order notwithstanding that no order nisi had been granted but on the basis that the present proceedings should be treated as an application for final relief as if an order nisi had been granted. 3 The application for a writ of prohibition alleges jurisdictional error, error of law, denial of procedural fairness and unreasonableness in respect of the exercise of the Minister's discretion to cancel the Applicant's visa. It is asserted by the Applicant that in exercising his discretion, the Minister failed to take into account the best interests of the Applicant's children, took into account an irrelevant consideration, namely that the Applicant's offences could be characterised as serious, and that there was a failure to afford procedural fairness in that the Applicant was not specifically informed that a letter had not been provided to the Department of Immigration and Multicultural Affairs (the "Department") from his son's mother concerning his relationship with his son. 4 The Commonwealth appeared and submitted to any order which the Court might make other than as to costs. It was unclear whether any order was really sought against the Commonwealth and thus whether it was a necessary party. However, I refrained from dismissing the Commonwealth as a party upon the request of Senior Counsel for the Applicant not to so do. Background 5 The Applicant came to Australia with his parents at age 14 on 14 October 1980. At that time he held a K 11 class visa and resided with his family in Sydney. In 1986, the Applicant's parents became Australian citizens by naturalisation, but he did not become a citizen because, he said, he was not "ready" at the time to do so. 6 The Applicant attended Ashcroft High School until year 10. He completed his School Certificate. Since leaving school, he has worked as a station assistant for CityRail, engaged in labouring and welding work, studied languages at TAFE in 1989 and 1990, and has worked in Spanish restaurants. The Applicant also commenced degrees in Arts, and Languages and Teaching, at the University of Western Sydney in 1994. The Applicant has resided in Australia for more than 23 years. 7 The Applicant has had two long-term relationships in Australia. He has two sons from those relationships, Yves Lorenzo (currently aged 10) and Aiden Lorenzo (currently aged 15). Both of his children are Australian citizens by birth. Aiden lives with his mother in Brisbane. He has "very limited contact" with his father. Yves lives with his mother, Laura Sosa in Sydney. 8 Both the Applicant and Yves' mother, Laura Sosa, gave uncontested evidence in affidavits filed in the present proceedings that the relationship between Yves and his father was very close. Although the Applicant and Ms Sosa terminated their sexual relationship and ceased living together in May 1998, the Applicant has had daily contact with Yves, either by telephone or in person, and even during the periods of his incarceration. The Applicant, when at liberty, played soccer with his son, had meals with him, has taught him Spanish and took him on regular visits to his grandparents' place. Both the Applicant and Ms Sosa say that deportation of the Applicant would have a devastating effect on Yves. I have no reason to doubt that this is the case. Ms Sosa also said that if the Applicant is deported, she would not have the financial means to take Yves to visit him. Her only source of income is a sole parent pension. 9 During the period between 1993 and 2001, the Applicant was convicted of offences of larceny, possession of a prohibited drug, possession of equipment for administering a prohibited drug, self-administering a prohibited drug, entering inclosed land not prescribed without lawful excuse, goods in personal custody reasonably suspected of being stolen, shoplifting, goods in personal custody, common assault, contravening apprehended domestic violence order, smoking Indian Hemp, offensive behaviour, resisting arrest, refusal to leave premises, failure to leave licensed premises, cancelled driver, MID PCA and drive whilst cancelled, and supplying a prohibited drug. The sentences imposed as a result of these convictions were cumulatively in excess of 2 years. 10 The Minister acted under s 501(2) of the Act to cancel the Applicant's permanent resident visa. That section provides, relevantly: 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. 11 By virtue of s 501(6), a person is taken not to pass the character test if the person has a substantial criminal record as defined by s 501(7). That subsection provides that a person has a substantial criminal record inter alia if the person has been sentenced to two or more terms of imprisonment whether on one or more than one occasion where the total of the terms is 2 years or more. Thus the Applicant was a person who did not pass the character test. The Applicant does not contest that. 12 On 30 November 2001 and while the Applicant was held on remand at the Metropolitan Remand and Reception Centre at Silverwater (the "Remand Centre") in relation to larceny and a drug offence there was issued to him a Notice of Intention to Consider Cancelling a Visa under Subsection 501(2) of the Migration Act 1958 . The notice annexed a copy of the relevant legislation and the Ministerial Direction for Visa Refusal and Cancellation under section 501 of the Migration Act 1958 (the "Direction"). Importantly the notice advised the Applicant that if there was any information that he felt the Minister ought to be aware of and take into account, that information should be provided no later than 21 December 2001 to the Department. 13 The Applicant was also interviewed by an officer of the Minister's Department, a Ms Heidi Speed at the Remand Centre on the same day. At that interview, the Applicant was informed that he was liable to have his visa cancelled because of his past and present criminal conduct. Ms Speed also told him that he would require letters of support from his family detailing his relationship with his son Yves. The Applicant said that he would provide them. The record of interview in response to the question, "Why should your visa NOT be cancelled?" noted that the Applicant had answered, "Because of my children. I have done some positive things. My parents". Ms Speed wrote a letter that day to the Applicant saying: "As discussed at interview, if you wish to provide any further documentation in relation to this matter to be presented to the decision maker, you should do so by 21 December 2001." 14 The deadline of 21 December 2001 was extended to 2 January 2002 by a letter from Ms Speed addressed to the Applicant and dated 12 December 2001. 15 On 29 January 2002, the Applicant appeared before the Drug Court and was placed in a 12 month Drug Court rehabilitation program at Adele House. It appears, however, that on or around 3 March 2002 the Applicant left Adele House. In cross-examination before me the Applicant said that this was because he had been told to leave. The reason is immaterial. The Applicant was thereafter arrested on 14 April 2002 and sentenced on 9 May 2002 by the Drug Court to a further term of imprisonment that would end on 14 October 2002. 16 On 31 January 2002 a File Note written by Ms Speed indicated that she had spoken to the Applicant who had been released from gaol. The note records that it was agreed with the Applicant that he would provide documents to Ms Speed by 8 February 2002. There is a potential conflict between the File Note of 31 January 2002 and an earlier File Note of 29 January 2002 in which Ms Speed notes that she was told that day by the Applicant's sister that the Applicant had been taken straight from the Drug Court to Adele House and could be contacted there. Be that as it may, Ms Speed recorded that day that she had left a message at Adele House that the Applicant call her. 17 On 6 February 2002 the South Western Sydney Area Health Service Drug Court Program wrote to Ms Speed at the Applicant's request in support of the Applicant. That letter notes that the Applicant regularly saw his son with whom he had a good relationship. On the same day Adele House wrote to Ms Speed in support of the Applicant. Incidentally that letter makes it clear that the Applicant was in Adele House as and from 29 January 2002 and reinforces the view that Ms Speed's File Note of 31 January 2002 was in error to the extent that it suggests that the Applicant had his freedom as at the date of the note. 18 On 28 February 2002 Ms Speed in another File Note records that the Applicant had said that the mother of his son would provide further information but that this had not been received. She suggests that a submission (presumably to the Minister) could be prepared without this information but that the case officer might "wish" to chase this up and include it in the submission. The case officer evidently did not "wish" to do so. However, a submission was prepared and presented to the Minister who made the decision to cancel the Applicant's visa on 25 May 2002. The Applicant was advised of the decision on 14 June 2002. The unsent letter 19 What was not known by the Minister, or for that matter, anyone else in the Department is that after the interview with Ms Speed in November 2001, the Applicant asked Ms Sosa, Yves' mother, to prepare a letter for the Department relating to his relationship with his son. In an affidavit read without objection in these proceedings, Ms Sosa said that in late 2001 the Applicant had requested that she write a letter regarding his relationship with Yves. At no time had anyone from the Immigration Department ever contacted her to find out about the impact deportation would have on Yves, herself or the Applicant's immediate family. 20 What is more, Ms Sosa said that she had indeed written the letter. She produced it to the Court. However, the letter had not been sent. She said that she had thought the letter was for the Drug Court. This was so notwithstanding that the letter itself referred to the Immigration Department and her request that it consider the effect of deportation inter alia upon the child. Ms Sosa also said that she had spoken to an official at the Drug Court who told her that her letter was not needed and that it would not make a difference. As a result, she did not send it. The Applicant was unaware that she had not done so until after the Minister's decision. 21 In cross-examination, Ms Sosa agreed that her reason for writing the letter was her concern that the Applicant might be deported. She understood that the decision to deport would be made by the Department of Immigration. Also, although her recollection was not strong, Ms Sosa confirmed that she did not send the letter because someone, presumably from the Drug Court, had told her that her letter would not make a difference. In my view, although Ms Sosa knew that the letter was connected to the Applicant's deportation, I am satisfied that she was confused as to where it should be sent, given that the deportation issue was contemporaneous with the Drug Court proceedings. On balance, I am satisfied that Ms Sosa did write the letter, that she did contact someone at the Drug Court, and that she did not send the letter because she was discouraged by that conversation. 22 A further Department File Note dated 9 May 2002 and prepared by a Simon Thompson, the case officer responsible for preparation of the submission to the Minister indicates that a Mr Hayhow apparently from the Department of Corrective Services had spoken with the Applicant by then in custody and told him that Mr Thompson had left a message for the Applicant that a submission would be prepared by the Department on its current information unless a further response was received by 14 May 2002. 23 In his affidavit filed in the proceedings, the Applicant says that during the period between his interview with Ms Speed and receiving what he referred to as "the deportation papers" on 14 June 2002, he did not have contact with any person from the Department. The Applicant also said that at no time did a person from the Department explain to him the factors that would be taken into account in deciding whether or not he should be deported. In addition, the Applicant tendered some medical evidence that in April 2001, he had suffered a frontal intracerebral haemorrhage resulting in forgetfulness. According to a letter of Dr J M Knapik dated 15 July 2002, there had been little change in the Applicant's condition by 26 March 2002. 24 In cross-examination, the Applicant agreed that he had spoken to Ms Speed concerning further documents whilst staying at Adele House. However, the Applicant said that he could not recall the name Richard Hayhow, although he did remember that when he went to the Drug Court one of the officers there had told him that "Immigration had been there and proceedings for the deportation had begun". 25 I accept that the Applicant's recollection was affected by his medical condition at the time. However, nothing turns upon whether there was any conversation between the Applicant and Mr Hayhow even if the conversation the Applicant did in fact recall may in fact have been the conversation with Mr Hayhow. What is clear is that Ms Speed had alerted the Applicant of the need to provide information for consideration by the Minister, the Applicant had advised Ms Speed that he would request Ms Sosa to provide a letter, some documentary material had been provided to Ms Speed from Adele House and the South Western Area Health Service, but no letter had been forthcoming from Ms Sosa. Extensions of time had been granted from time to time for the provision of information and submissions by the Applicant, until finally, a submission was prepared for the Minister without any attempt to ascertain what had happened to the letter which the Applicant had advised Ms Speed he would obtain. 26 In the letter which was not sent, Ms Sosa had written that her son adored this father. She said that her son did not deserve to grow up without a father and that she did not dare to think "of the grief and desperation Julio's mother will have to endure or the effect that it will have on my son if Julio was to be deported."

The evidence of the Applicant's mother 27 An affidavit of Paulina Lorenzo, the Applicant's mother, was also read in the proceedings. In that affidavit she deposed that at no time had anyone from the Department ever contacted her about her son and the effect deportation of the Applicant would have upon the family including herself. She said that if contacted she would have said that Yves loved and worshiped his father, the Applicant, and that he loved and adored Yves. The two were, she said, very close. She said that they would come to see her every Sunday and spend the whole day with her and that the family days were very special. She said that Yves spent a lot of time with her son and that if he were to be deported to Spain it would have a terrible effect on her and her husband. They were a very close family. She said also that she and her husband had sold their previous house to purchase a house which had an extension where the Applicant could live with them and where they could look after him. She said that she would find it financially very difficult to travel to Spain to see the Applicant if he were deported.

The Ministerial Submission 28 As already noted there was prepared for the Minister a document entitled Issues for Consideration of Possible Cancellation of Mr Lorenzo's Visa under s 501(2) of the Migration Act 1958 . That document is hereafter referred to as "the submission". There is a question which arises as to the significance the submission played in the decision made by the Minister. The Minister did not comply with the obligations imposed upon him by s 501G of the Act to provide timely reasons for his decision. In fact a document said to be the Minister's reasons prepared after the present proceedings had been commenced and some twelve months after the making of the decision was sought to be adduced in evidence. In my view the document was not admissible in the form it was sought to be tendered : Preston v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 107 per French J. It was not the subject of an affidavit swearing to its correctness. It was prepared after litigation commenced and, while no time is set out in s 501G for the preparation and service of reasons, it is clear that the legislative intention was that reasons would be given within a reasonable time. On no view can provision of reasons more than 12 months after the making of the decision be seen to be compliance with the Act so that the document containing the reasons might be admissible as a business record. However, even if it were admissible as a business record, it would be impossible to give any weight to what is said in it: Dagli v Minister [2003] FCA 298; Preston v Minister for Immigration & Multicultuiral & Indigenous Afffairs (no 2). Counsel for the Minister conceded that on the present state of the authorities the tender of the document should be rejected. Accordingly I rejected it. However, that leaves the question of the status of the submission. 29 I think that the inference can clearly be drawn that the Minister read the submissions. Indeed his actual decision in writing is noted upon them. I think it may also be inferred in the absence of the Minister himself giving any evidence, that any error to be found in the submission was adopted by the Minister. Otherwise the situation is that there is simply no evidence before the Court as to what matters the Minister took into account in making his decision or the weight which he attached to any matter in the submission. 30 Under the heading "Discretion" the submission indicated that Mr Lorenzo had been notified in person at the Remand Centre of the intention to cancel his visa and had been invited to submit any comment he believed relevant to cancellation. It is noted that Mr Lorenzo had indicated that he would respond by 8 February 2002. It is said that Mr Lorenzo was again contacted on 28 February 2002 and "offered time to submit further information" . It is noted that Mr Lorenzo had forwarded letters from the South Western Sydney Area Health Service Drug Court Program and Adele House. It is said that he was contacted again on 9 May 2002 and informed that a submission would be prepared with information then held unless a submission was received from him by 14 May 2002, but that he had not responded further. 31 The submission in paragraph 7 lists offences and sentences, the last of which was supply Prohibited Drug. Under the Heading, "Primary Considerations" - "Protection of the Australian Community", consideration is said to be given to the seriousness and nature of the Applicant's conduct. The document quotes from the Minister's Direction as follows: "It is the Government's view that the following are examples of offences which are considered by the Government to be very serious: (l) serious theft (including "white collar" crimes): · such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government; (n) any other crimes involving violence or the threat of violence: · such crimes are of special concern to the welfare and safety of the Australian community; and" It then notes that "Mr Lorenzo's offence" (singular) is listed as "a very serious offence under the Direction". In fact, none of the Applicant's offences came within those referred to in the Direction unless the drug offences are within the category of "special concern to the welfare and safety of the Australian community". The submission then continues to say that the Applicant had "further criminal convictions in New South Wales" and lists them. That list does not include the offence of "supply Prohibited drug". 32 Clearly this part of the submission is not elegantly written. It goes too far to say as Senior Counsel for the Applicant says that it is muddled. In fact, given that the list of "other" offences excludes the offence of supply it can easily be deduced that the reference to the "very serious offence" must be a reference to that. While it may also be true that some of the offences may not have, on their own, been particularly serious, it is the cumulative effect of them which may have an effect on the Minister in deciding whether to cancel the visa. In any event, a complete copy of the Applicant's criminal history was annexed to the document so that it was open to the Minister to assess himself the seriousness of the Applicant's conduct. 33 The submission continued by suggesting that on the basis of the Applicant's criminal history it was open to the Minister, as indeed it was, to find that the Applicant's conduct against the community was serious. Reference is made to the Applicant's drug use as a possible mitigation of the offences. 34 Of greater significance is that part of the document which relates to the best interests of the Applicant's children. After noting Article 3.1 of the Convention on the Rights of the Child, the document notes that the Applicant had two children and that the Applicant in the interview had stated that the children would be affected by the decision. After setting out some other information the document continues: "[34] Mr Lorenzo stated that his sons would be affected if his visa were cancelled, but did not elaborate on the impact his deportation would have on them. [35] It is difficult to assess the impact of Mr Lorenzo's possible visa cancellation would on his sons due to the limited information currently held… [36] It is open to you to find from the information given that the cancellation of Mr Lorenzo's visa and his removal from Australia would have a detrimental effect on his children." 35 Attached to the document was the note of the interview with the Applicant made by Ms Speed in which he had said, as noted earlier, that he had constant contact with his family, including lunch each Sunday and his submission that the visa should not be cancelled "because of my children. I have done some positive things. My parents." That document indicated that the Applicant would ask his family to write letters in support of his case. The document noted also that although the Applicant's family, ie his mother, father and siblings had not been interviewed it was not unreasonable to conclude that they would suffer some hardship if the visa were to be cancelled.

SUBMISSIONS 36 On behalf of the Applicant it was submitted that the decision should be set aside on the following grounds: 1 The Minister had failed in accordance with his obligation under s 501G of the Act to give reasons. It is said that the inference was open that there were no reasons which did or could justify the decision. 2 There had been a denial of procedural fairness in that the submission had characterised the offences committed as "serious offences" or in the case of an unidentified offence "a very serious" offences and had thus failed to present a balanced position. However, the Applicant was not given the opportunity to present a case against the characterisation of these offences or to comment on the Minister's conclusion that there existed a "continuing" or "high risk" of recividism. 3 That the Minister had taken account of an irrelevant consideration, that being the characterisation of the offences. 4 That the Minister had failed to take into account a relevant consideration namely the interest of Yves in that he had not interviewed the family nor was he aware of the mistake in the obtaining information from Yves mother. 5 That the primary consideration of the best interests of the children was a common law right which could not b abrogated. Hence the Minister was obliged to take it into account but had failed to do so. 6 That the Minister had failed to apply the correct test, namely whether he was satisfied "in reality" having regard to the best interests of the children as a primary consideration that the decision to cancel should be made. 7 The decision was unjust and manifestly unreasonable because it amounted to the imposition of an unjust and disproportional punishment for the offences he had committed.

General 37 To succeed, the Applicant must show that the Minister's decision was made outside jurisdiction. The categories of jurisdictional error such as to provide grounds for relief under the constitutional writs provided for in s 75(v) of the Constitution (or the statutory writs in this Court exercising jurisdiction under s 39B of the Judiciary Act 1903) may not be able to be exhaustively stated. However, it is clear that failure to provide procedural fairness will result in the vitiating of a decision: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, and at least some decisions made in error of law will involved jurisdictional error, although whether a legally erroneous decision does involve jurisdictional error may ultimately involve a question of interpretation of the relevant statute.

Ground 1 - the failure to give reasons 38 This submission may be easily rejected. First, s 501G itself provides that failure to provide reasons does not affect the validity of the decision, whereas the submission if accepted would have the consequence that every decision unsupported by a timely provision of reasons would be taken to be made without reason and thus invalid. Second, and more importantly, the High Court has rejected a submission that failure to provide reasons constitutes jurisdictional error: Re Minister for Immigration & multicultural & Ethnic Affairs; Ex parte Palme (2003) 77 ALJR 1829 at [46] per Gleeson CJ, Gummow and Heydon J, and at [55] per McHugh J and at [109] per Kirby J.

Grounds 2 and 3 - Procedural fairness - the very serious offence - an irrelevant consideration? 39 I have already indicated my view that the reference to "very serious offence" was a reference to the offence of supply. 40 As I understand the submission it is said that the Minister characterised the offences for which the Applicant was convicted as being either serious, or in the one case, "very serious", and that the Applicant was not given the opportunity of responding to this characterisation of the offences. 41 There is the problem that in the absence of reasons it can not be said to be clear that the Minister adopted the characterisation appearing in the submissions. But even if he did it is difficult to say that there is any procedural unfairness to the Applicant here. The Applicant knew, or ought to have known, that the Minister was to engage in a process which involved considering the Applicant's criminal record. There is no suggestion that the record as enumerated in the submission was wrong. It was correct. Further it could hardly be said that all of the convictions were trivial. Importantly, here, however, the seriousness of the offences is capable of being judged by reference to the sentences imposed on conviction. In the circumstances it is difficult to see that there was any obligation upon the Minister to seek specific comment from the Applicant about the classification of the offences as serious. 42 Further, it can hardly be said that the characterisation of offences as serious or very serious involves an irrelevant consideration, if indeed, the characterisation was one adopted by the Minister. What s 501 relevantly is concerned with is the conviction of a visa holder of offences which, cumulatively, involve custodial sentences of two years or more. That is the necessary precondition to the exercise of the power to cancel under the section. The discretion conferred upon the Minister enables the Minister to weigh any relevant matter against the criminal record of the visa holder. In the exercise of the discretion the Minister will be entitled to consider the seriousness of the offences against such other matters as may be favourable to the visa holder. The characterisation of the seriousness of the relevant offence is thus not irrelevant.

Grounds 4, 5 and 6 43 The principal argument on behalf of the Applicant was that the decision of the Minister miscarried in his consideration of the interests of the child. It is submitted that the Applicant was denied natural justice or alternatively that the Minister gave no real consideration to the rights of the child or for that matter, the family of the Applicant. 44 It may be accepted that while the International Convention on the Rights of the Child has not been enacted into Australian municipal law, nevertheless the significance of the Convention with its emphasis on the importance of the rights of the child gives rise to a legitimate expectation that a decision maker would take account of the Convention and thus give primacy to the welfare of the child: Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273. Failure to do so without giving a visa holder the opportunity of making submissions would involve a denial of procedural fairness. It is not necessary in the present case to consider whether, as Gaudron J said in that case, the common law of Australia itself would require that the Minister not merely to take account of the rights of a child, but to give such rights primacy. It was submitted on behalf of the Applicant that I should so find. However, I do not think that the question arises in the present case. First, the author of the submissions put to the Minister regarded the Convention as an important matter to be taken into account by the Minister. Reference was made in the submission to the Convention and its requirement that the interests of the child be given primacy. Reference was made also to the fact that the Applicant had two children and that the Applicant himself had said that Yves would be affected by the decision. Secondly, I do not think that the Applicant has put before me any evidence which suggests that the Minister did not regard the welfare of the children to be a matter of primary concern. No reasons of the Minister were in evidence and I do not think that it may be inferred from any material before me that the Minister acted otherwise. If anything, I would infer that the Minister did take account of the submission and thus regarded the interests of the children as primary since that is what he had directed other decision-makers to do in his Direction. Why would he then do otherwise himself, notwithstanding that the Minister would not be bound to follow his own directions? It is not difficult to infer that he would act in the same way as he had directed others to act. 45 More importantly, however, there is the question of the letter from Ms Sosa which the Applicant had indicated he would obtain, but which as a result of misadventure, and unknown to the Applicant, was not sent. Clearly there can be no suggestion that a decision maker acts outside jurisdiction by relying on facts which are true. There had been no letter sent and that fact was true. Nor can it be said that the failure to receive a letter from Ms Sosa was a matter which those advising the Minister should have followed up. There is no general obligation upon the Minister to make his own enquiries and this must be so, particularly where the visa holder has been given the opportunity to put all that he or she may wish to put before the Minister, including any submission from the mother of a child, which was nevertheless not forthcoming. 46 The Applicant's submission is, however, put quite differently. It is said on behalf of the Applicant that the submission given to the Minister was inaccurate or perhaps misleading in that it gave the impression that the Applicant had been asked to provide further information but had not done so when this was far from the truth. So it was submitted the Minister had not really been able to turn his mind to the significant question of the primary right of the child. Alternatively, it was submitted that the submission lacked the 'pitch' or 'balance' such as to constitute a breach of the requirements of procedural fairness: Re Minister for Immigration & Muilticultural Affairs; ex parte Palme (2003) 77 ALJR 1829 at 1833 per Gleeson CJ, Gummow and Heydon JJ. Further in the alternative it is said that the Applicant was denied procedural fairness in that the Applicant was not told that the Minister was proceeding to consider (and ultimately make) the decision on the basis that Ms Sosa was not providing the information she had promised, and that the Applicant was responsible for the lack of information concerning the welfare of his son. It is said that had the Applicant been told that this false impression was what was to be given to the Minister, then he would have been able to respond, presumably by ensuring that Ms Sosa actually provided the letter. It can be said clearly that there is a possibility, had the letter been provided, that the Minister's decision might have been different from that which it was. 47 It is a fundamental requirement of procedural fairness, particularly where the decision involved has such serious consequences as the decision here has, namely removal of a visa holder who is the father of an infant child from the jurisdiction, that the person affected is given the opportunity to be heard on the matters in issue in the decision. As was said in Kioa v West (1985) 159 CLR 550 at 585, the general question to be asked will be "what does the duty to act fairly require in the circumstances of the particular case". Ordinarily that will require no more than that, before the decision is made, the person affected by it is given the opportunity to put his or her case. It may be accepted that there is no obligation on a decision maker to reveal to a person affected by the decision what matters the decision maker has in his or her mind. Hence, ordinarily there would be no obligation upon the Minister to show the visa holder the submission that is to be put before him before making the decision since it can be assumed that the visa holder will already have been given the opportunity to put whatever he may wish to put in favour of his case that the visa not be cancelled: Palme at 16ff. However, as Gleeson CJ, Gummow and Heydon JJ pointed out in Palme at 21, there may be an entitlement to rebut adverse material received from other sources. The same may be said where the submission contains material adverse to the visa holder where that material was not apparent from the nature of the decision itself: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2, cited with apparent approval by the High Court in Palme. If the submission contained material adverse to the Applicant which was false, and which the Applicant could not expect to have been placed before the decision maker, then it can be said that the Applicant would, as a matter of fairness, have been denied procedural fairness unless this material was made known to him and he was given the opportunity to rebut it. That a decision which contains misstatement of facts may be set aside on the grounds of procedural fairness where the person affected by the decision is not given the opportunity to rebut the misstatement may be inferred from the judgment of McHugh J in Palme at [94]. 48 Reference may also be made in support of the case for the Applicant to Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 where a decision was set aside upon the basis that the Tribunal had so conducted the review that the prosecutor was deprived of a fair opportunity to correct an erroneous and factual assumption relevant to his credibility. 49 It seems to me that the question in this case is thus whether the submission document implies and thus conveys to the Minister that the failure on the part of the Applicant to provide a letter from the mother of Yves son meant that no such letter could be provided and that in consequence the relationship with the son was not particularly strong and certainly not of the quality which the mother says is in fact the case. Certainly the submission does not put the case for a close relationship between the Applicant and his son very convincingly. In fact, the submission is to the contrary. Not only is it made clear that the Applicant had been given the opportunity to provide evidence but it is said merely that the Applicant had stated that the sons would be affected but that he had not "elaborated" on the impact deportation would have. Further it is said that it was difficult to assess the impact the cancellation would have because of the "limited information" which the Minister had. 50 On balance I am of the view that the way the relationship is expressed in the submission is adverse to the Applicant and indeed misleading. Further the way it is expressed is not something which the Applicant would have expected, as he understood, incorrectly as it turns out, that Ms Sosa had written to the Minister. It seems to me that in these very unusual circumstances, the Applicant was denied procedural fairness in that he did not have an opportunity to respond to the material in the submission so far as it related to the interests of the son Yves. 51 The alternative submissions that either there was a duty on the Minister to make his own enquiries or that the Minister did not in reality turn his mind to the best interests of the child I would reject. Firstly, there is, as Teoh itself held, no obligation upon the Minister to make enquiries. Secondly absent evidence from the Minister the Applicant has not shown that the Minister failed to turn his mind to the issue which it is agreed was a relevant matter for him to consider, namely the interest of the son Yves. Counsel for the Applicant referred to what was said by the Full Court of this Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592, where it was said that, "the decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provision views to comment before making the decision in question." 52 Counsel for the Minister objected to the Applicant raising at the hearing and after evidence had concluded, but without any prior notice in the Application before the Court the natural justice submission which I have just upheld. It was submitted that in any event the submission did not sit easily with the evidence of Ms Sosa, that after the decision had been made she had contacted the Applicant and asked him why he had not had the Immigration Department contact her about the impact the deportation would have on Yves and the rest of the family. She said that the Applicant had said that he did not want to trouble her because at the time of the interview with Miss Speed, he had not thought the matter to be that important but rather that it had been but a casual interview. 53 With respect I do not believe that the matter was treated lightly by the Applicant, nor for that matter by Ms Sosa. I think the matter has to be seen against the background of the criminal proceedings which were pending against the Applicant and perhaps also the confusion that brought about the non sending of the letter. 54 Further it was submitted (and the submission is correct) that there was no factual basis for asserting that the Minister or his officers were aware that the Applicant was labouring under a mistake. All they knew was that no letter from Ms Sousa had been submitted, and not the reason why this was the case. That is, as I have said, true, but it does not seem to me to be an answer to the submission. The point is that the material in the submission was such as to create a false impression, as I have found, adverse to the Applicant. The suggestion it implied in it was also factually incorrect. It seems to me that natural justice requires a visa holder in this position to be given the opportunity to correct what was in the submission. He did not have that opportunity. Had it been given to him the Minister would have been able to make a decision on the real position, rather than based upon a false implication. 55 In case there should be any prejudice to the Minister being taken by surprise by the submission I afforded counsel for the Minister the opportunity to make in writing such further submissions as he might be advised. Subsequently it was indicated that the Minister did not wish to make further submissions.

Ground 7 - Proportionality and constitutionality -The Human Rights Argument 56 It is submitted that the Act in its application to the present case is unconstitutional because it allows the executive to impose a punishment upon a person who already has been punished for the offence. Alternatively it is submitted that the Minister failed to take account of a relevant consideration namely the proportionality of what was to happen to the Applicant as a consequence of an adverse decision (ie removal), having regard to the conduct which the Applicant had undertaken and for which he had already been punished. 57 Reference was made to three decisions of the European Court of Human Rights, namely Beldjoudi v France (1992) 14 EHRR 801; Nasri v France (1995) 21 EHRR 458 and Menhemi v France (1997) 30 EHRR 739. None of them have, in my view, any relevance to administrative law in Australia. However, as I have been referred to them it is incumbent upon me to say at least something about them. In Menhemi the applicant had been born in France but was an Algerian National residing in Algeria at the time of the decision. His parents and siblings resided in France and he was the father of three children of French nationality. He had been convicted of drug trafficking and was deported. The Lyon Court of Appeal upheld an order that the Applicant be permanently excluded from French territory on the ground that public policy considerations precluded the presence within French territory of an alien engaged as a principal in the offence of drug trafficking. The European Court of Human Rights upheld a decision of the Commission on Human Rights that the decision of the Lyon Court be set aside. The basis of the decision was Article 8 of the European Convention on Human Rights. It was held that the power of the State to control public order and to expel aliens interfered with the rights under the Convention for respect to private and family life and to the extent that such Convention rights could give way to matters such as public safety the deportation was disproportionate to "the aims pursued". 58 Beldjoudi involved an applicant who had been convicted of numerous criminal offences for which he had served a total of ten years in gaol. A deportation order was subsequently made against him as he had been an Algerian by birth. The order was set aside on the basis that it would violate his right to family life and was not proportionate to the legitimate aim of the power of deportation. 59 Nasri again involved an Algerian national who had been convicted of various offences and against whom France had made a deportation order. The order was held to violate various articles of the Convention and it was not proportionate to the legitimate aim pursued, that being presumably public order. 60 In my view these decisions do not assist the Court. Firstly they seek to apply European Conventions, not even international conventions to which Australia is a party. More importantly, while it may be said that there are equivalent international conventions to which Australia is a party, these conventions are not part of the domestic law of Australia. 61 Further, while I can understand an argument that says that the Minister should take into account the fact that a person in the position of the Applicant has been already punished by the criminal law, the problem is that s 501 assumes that it will be appropriate and lawful for the Minister to cancel a visa of a person convicted of certain offences where sentences accumulate to two years or more thus rendering the person liable to removal. The legislature itself has answered the issue of proportionality by legislating that cancellation may follow conviction where the punishment for the one or multiple convictions is two years or more. It is then for the Minister, and not for this Court, to determine whether the circumstances of the case are such that a decision should be made to cancel the visa. In my view the European cases have thus no relevance in the present context. 62 As to the Constitutional issue, it too is hopeless. The submission is that s 501 in some way infringes Chapter 3 of the Constitution in that it involves the Minister exercising judicial power. In my view, s 501 does not operate to permit the executive to impose a penalty for the commission of an offence. Rather it permits the executive to determine whether it is or is not appropriate for a person who has committed an offence of a prescribed kind to remain in Australia. The question what non-citizens may remain in the country is a question conferred upon the executive by legislation validly enacted under s 51(xix) of the Constitution: Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 30-31. It does not involve the exercise of judicial power. Conclusion 63 Accordingly, I order that the Minister be prohibited from taking any further steps to give affect to his purported decision under s 501(2) of the Act, made on 25 May 2002. I also order that that decision be set aside and that the application be remitted to the Minister for reconsideration according to law. The Minister is ordered to pay the Applicant's costs of the application. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate: Dated: 16 April 2004 Counsel for the Applicant: S Rares SC and R A Pepper

Solicitor for the Respondent: Australian Government Solicitor

Executive Migration Act 1958(Cth)

At a glance

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Judgment (11 paragraphs)

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