Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340 | Case summary

Federal Court of Australia (Full Court)|2004-12-24|Before: Mason J, Black CJ, Sundberg JJ

BACKGROUND 72 The appellant appeals from the decision of Weinberg J dismissing his application under s 39B of the Judiciary Act 1903 (Cth) for constitutional writs to review the decision of the respondent under s 501A of the Migration Act 1958 (Cth) ("the Act") to set aside a decision of the Administrative Appeals Tribunal, thereby cancelling the appellant's visa pursuant to s 501A(2)(b). 73 The following account of the events leading up to the respondent's decision is taken from the primary judge's reasons. The appellant was born in Vietnam. He and his family arrived in Australia on 11 September 1982. In 1990 the appellant and others committed the offence of home invasion. He was arrested and charged with four counts of robbery with an offensive weapon. While on bail, he and another were involved in breaking and entering and stealing from a shop. He was again arrested, and charged with three counts of burglary, one count of having housebreaking implements in his possession, and one count of threatening to use an offensive weapon with intent to resist arrest. He was convicted on all counts. In relation to the home invasion he was sentenced to a minimum term of six and a half years, with an additional term of twenty‑six months. In relation to the shop burglary he was sentenced to one year for each offence, to be served concurrently with the head sentence. While serving his sentences the appellant was convicted of various offences relating to the possession and use of marijuana committed in 1993 and 1997. 74 On 19 October 1998 the Minister cancelled the appellant's transitional permanent visa under s 501(1) of the Act, on the basis that he reasonably suspected that the appellant did not pass the "character test". At the same time the Minister decided that it was in the national interest for a certificate to issue under s 502 declaring the appellant to be an "excluded person". The effect of that decision was to preclude the appellant from seeking merits review in the Tribunal. However the certificate was defective in form and was rendered ineffectual by the Full Court's decision in Singh v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 453. The appellant then sought merits review in the Tribunal, which on 4 July 2001 set aside the decision to cancel the visa. 75 On 14 March 2002 the Minister decided under s 501A to set aside the Tribunal's decision of 4 July 2001, and again cancelled the appellant's visa pursuant to s 501A(2)(b). At the time the Minister made his decision, he had before him a Minute dated 11 March 2002, attached to which was an Issues Paper.

SECTION 501A 76 Section 501A was inserted into the Act by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) ("the Amendment Act") and came into effect on 1 June 1999. The section provides in part as follows: "(1) This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes a decision (the original decision): (c) not to exercise the power conferred by s 501(1) to refuse to grant a visa to the person; or (d) not to exercise the power conferred by s 501(2) to cancel a visa that has been granted to a person; whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test. (2) The Minister may set aside the original decision and: (a) refuse to grant a visa to the person; or (b) cancel a visa that has been granted to the person; if (c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); (d) the person does not satisfy the Minister that the person passes the character test; and (e) the Minister is satisfied that the refusal or cancellation is in the national interest. … (5) The power under subsection (2) … may only be exercised by the Minister personally. … (7) A decision under subsection (2) … is not reviewable under Part 5 or 7."

THE OLD CHARACTER TEST 77 Prior to the Amendment Act the character test was contained in s 501 of the Act. That section provided for a two‑stage process for a refusal to grant or cancellation of a visa. The first stage required a decision maker to make a finding of fact as to whether a person was "not of good character". The second stage conferred upon the decision‑maker a discretion to grant, or not to cancel, a visa, despite a finding that the person was not of good character.

THE CURRENT CHARACTER TEST 78 The current character test, introduced by the Amendment Act, is contained in s 501(6), par (a) of which provides that a person does not pass the character test if he or she has a "substantial criminal record (as defined by subsection (7))". Subsection (7) provides: "For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to two terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more … …"

TRANSITIONAL PROVISIONS 79 Items 32 and 33 of the transitional provisions contained in Schedule 1 to the Amendment Act are as follows: "32 Transitional -review of adverse pre‑commencement decisions under the Migration Act 1958 (1) Despite the amendments of sections 500 and 502 of the Migration Act 1958 made by this Act, those sections and the Administrative Appeals Tribunal Act 1975 continue to apply, in relation to a review of a decision made under section 501 of the Migration Act 1958 before the commencement of this item, as if: (a) those amendments had not been made; and (b) section 501 of the Migration Act 1958 had not been repealed by this Act. (2) The repeal and substitution of subsection 500(4) of the Migration Act 1958 made by this Act does not imply that an application may be made, or could have been made, to the Administrative Appeals Tribunal for review of a decision to which a certificate under section 502 of the Migration Act 1958 applies. 33 Transitional - setting aside and substitution of non‑adverse pre‑commencement decisions under section 501 of the Migration Act 1958 (1) This item applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes, or has at any time made, a decision (the original decision): (c) to grant a visa to a person as a result of not exercising the power conferred by section 501 of the Migration Act 1958 (as in force at any time before the commencement of this item or as continued in force by item 32) to refuse to grant a visa to the person; or (d) not to exercise the power conferred by section 501 of the Migration Act 1958 (as in force at any time before the commencement of this item or as continued in force by item 32) to cancel a visa that has been granted to a person. (2) Section 501A of the Migration Act 1958 applies to the original decision in a corresponding way to the way in which it applies to a decision referred to in subsection 501A(1) of that Act."

THE PRIMARY JUDGE 80 The Minister could only set aside the Tribunal's decision of 4 July 2001 if that decision was an "original decision". Before the primary judge counsel for the appellant contended that it was not an original decision, because Parliament could not have intended a decision on appeal from the Minister personally to be so regarded. Otherwise a decision by the Minister to cancel a visa would be reviewed by the Tribunal, which in turn would have its decision not to cancel the visa reviewed by the Minister himself. The primary judge rejected this contention on the ground that it sought to place a qualification or gloss upon the words in s 501A(1)(c) and (d). 81 Counsel for the appellant submitted that in reviewing the Tribunal's decision under s 501 the Minister had applied the wrong test, namely the current or new character test rather than the old character test. Reliance was placed on item 33(2) of Schedule 1 to the Amendment Act. It was submitted that because item 32(1)(b) required the Tribunal to apply the old character test (which was common ground), and item 33(2) rendered the new power under s 501A applicable to the original decision "in a corresponding way" to the way in which it applied to a decision referred to in s 501A(1), the same test had to be applied by the Minister as had been applied by the Tribunal. 82 The primary judge rejected this contention. His Honour was of the view that item 33(2) supported the Minister's contention that, on reconsideration under s 501A, he was to apply the new character test, as he had. His Honour considered that the Explanatory Memorandum to the Amendment Act also supported this conclusion. Paragraph 118 of the Memorandum states that item 33 specifies that s 501A applies to the original decision, and provides for the Minister acting personally to set it aside and substitute another. Before the Amendment Act came into force there had been no s 501A. Accordingly it was the new regime that governed the exercise of the Minister's power. 83 Counsel for the appellant drew the primary judge's attention to the fact that the Issues Paper had given the Minister erroneous information about the appellant's criminal history. The Paper stated at par 4 of Part B that the applicant had received: "[a] [t]otal sentence for drug offences in 1993 and 1997 [of] 9 months served concurrently with his prison term."

"The resultant sentences [the sentences for the 1993 and 1997 drug offences] were to be served cumulatively with his main sentence."

For the 1997 offences the appellant in fact received three sentences of one month each, wholly concurrent with each other, but with the one month to be served cumulatively with his main sentence. Fines were imposed for the 1993 offences. While critical of the errors in the Issues Paper, the primary judge did not accept that they resulted in jurisdictional error.

84 It was also put to the primary judge that the Minister's decision was invalid because it failed to take into account matters that he was bound to take into account. The first was that the Issues Paper wrongly informed him that the original character decision, taken some years previously, had been made by a delegate rather than by the Minister himself. The primary judge said that the Minister was not "bound" to take into account the fact that he and not a delegate had made the earlier decision. Cf Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 39‑41 per Mason J. 85 It was then contended that the Minister had not taken into account the fact that the other persons involved in the home invasion, who were also non‑citizens, and who were equally culpable in that offence, had been permitted to remain in Australia. The primary judge rejected this claim, saying that it was entirely possible that there were differences between the appellant's position and that of the co‑offenders that explained why the latter were not ordered to be removed. There was simply no material before the Court on the subject. 86 Next it was said that the Minister had not taken into account the fact that he had jurisdiction to make the impugned decision only as a result of his earlier incorrect decision of 19 October 1998 under s 502(1)(a)(ii) and (b). The primary judge said that this was not a matter the Minister was bound to take into account. There was nothing in s 501A or in the structure or text of the Act to suggest that this matter, or any of the others relied on, had to be taken into account. 87 His Honour also rejected a claim that

· the erroneous factual material in the Issues Paper

· the erroneous identification of the maker of the earlier decision

· the failure to consider whether or not the applicant was being treated differently from his co‑accused

· the fact that the Minister had jurisdiction to make the impugned decision only because of his earlier incorrect decision of 19 October 1998

combined to make the 14 March 2002 decision one that was so unreasonable that no reasonable person could have made it.

88 The final matter put to the primary judge was that even if jurisdictional error could not be established, the appellant was entitled to injunctive relief under ordinary principles of equity. It was submitted that it would be unconscionable to allow the Minister to exercise a power to cancel the appellant's visa under s 501A, when that power could never have been invoked had the Minister not previously erred in issuing an invalid "excluded person" certificate. In the absence of authority binding him to accept this "novel" submission, his Honour rejected it on the ground that it invited merits review under the guise of seeking equitable relief.

THE APPEAL 89 On the appeal counsel for the appellant repeated the submissions he had made to the primary judge. I do not consider there is any doubt as to the correctness of his Honour's rejection of the submissions for the reasons he gave, which I have recorded at [80]‑[89]. I amplify his Honour's reasons in two respects only. 90 The first relates to the character test issue. The appellant submitted that item 33(1)(d) of Schedule 1 to the Amendment Act showed that the Minister was to apply the old character test. Reliance was placed on the words "section 501 … as in force at any time before the commencement of this item …". The submission must be rejected. Item 33(1) is concerned solely to identify the circumstances to which item 33 applies. Sub‑item (1) is not a normative provision in the sense that it lays down any rule of law. That is done by sub‑item (2). Sub‑item (1) is not directed to the Minister. Rather it identifies historical decisions made by a delegate or the Tribunal. 91 The appellant also sought to derive assistance for his character argument from the phrase "in a corresponding way" in item 33(2). It was submitted that had the intention been that s 501A was to be applied to the original decision, item 33(2) would have read: "Section 501A of the Migration Act 1958 applies to the original decision." The fact that s 501A was not made directly applicable in this way, but was to be applied "in a corresponding way", was said to indicate that the Minister was to apply the old character test. 92 In the present case, item 33 applies because the Tribunal had decided not to exercise the power conferred by s 501 of the Act as in force before the Amendment Act to cancel the appellant's visa. Sub‑item (2) then provides that s 501A, a section inserted by the Amendment Act, applies to the Tribunal's decision "in a corresponding way" to the way in which it applies to a decision referred to in s 501A(1). The phrase "in a corresponding way" is employed in recognition of the fact that s 501A cannot apply "in the same way" in which it applies to a decision referred to in s 501A, because that decision was made by the Tribunal under the old character test, whereas in exercising power under s 501A(2), the Minister is acting under the new character test. 93 The Explanatory Memorandum to the Bill that became the Amendment Act says (at [118]) that Item 33: "specifies that new section 501A applies to the original decision. New section 501A provides for the Minister, acting personally, to set aside the original decision and substitute another decision in certain circumstances". 94 The Explanatory Memorandum is at best equivocal as to whether Item 33 is intended to require the Minister to apply the old character test. 95 The text of Item 33 makes the position clear. Item 33(2) is drafted with accuracy and precision. As I have said, it would have been inaccurate to require s 501A to be applied "in the same way". Had Item 33(2) been drafted in the manner suggested by the appellant, it would have been treated by a court as applying s 501A to the original decision mutatis mutandis. To say that s 501A is to be applied 'in a corresponding way' is only putting in plain English what until comparatively recently would have been rendered as "mutatis mutandis". 96 The second matter upon which I amplify the primary judge's reasons relates to errors in the Issues Paper about the sentences imposed upon the appellant. In Peko‑Wallsend at 40 Mason J said: "Not every consideration that a decision‑maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re‑exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision …." 97 The primary judge said: "In some cases, erroneous information regarding a person's antecedents might lead to the invalidity of a decision to remove that person on character grounds. In the present case, however, the objective facts strongly suggest that the matters that were erroneously placed before the Minister played little, if any, role in his decision. It was the very serious offences committed in 1990, coupled with the fact that some of those offences were committed whilst the applicant was on bail, that plainly swayed the Minister, and not the cannabis offences committed at a later time."

His Honour's reference to "the objective facts" is to the matters set out in the following sentence, namely the very serious offences committed while the appellant was on bail compared with the later drug offences. The use of the expressions "strongly suggest", "little, if any, role" and "plainly swayed the Minister", indicate that his Honour thought that had the Issues Paper correctly set out the sentences imposed for the drug offences, the Minister, acting responsibly, could not have come to a different decision to the one he reached. Support for this view is provided by the fact that the submission of the Minister that his Honour was considering was that:

"the errors made by the author of the Issues Paper could not have affected the exercise of the Minister's discretion. The offences involving cannabis, committed whilst the applicant was in prison, paled into insignificance when compared with the armed robbery, and the various other offences that he had committed. Whether the applicant was sentenced to nine months' imprisonment or one month, and whether that sentence was cumulative or concurrent, did not matter in the least so far as the Minister was concerned." (Emphasis added.)

Further, it could not reasonably be suggested that the primary judge did not have the Peko‑Wallsend formulation in mind. Not only was he addressing a submission framed in Peko‑Wallsend terms, but he referred to pages 39‑41 of that case. Mason J's test, quoted above, is at page 40. Although his Honour did not enunciate that test in its terms, in substance it was that which he applied.

98 The Issues Paper leaves no doubt that the primary judge's characterisation of the basis upon which the Minister proceeded is accurate. The Paper first recorded the various convictions and sentences (including the wrong sentences for the drug offences). It then set out par 2.6 of Ministerial Direction 21, which gave examples of very serious offences - armed robbery, home invasion, other crimes involving violence or the threat of violence, and ancillary offences in respect of those offences (attempts, conspiracies and accessorial conduct). The Paper stated that the appellant's offences "are listed as very serious offences under the Direction". This is plainly a reference to the armed robbery, breaking, entering and stealing, and threatening to use offensive weapon offences. 99 The Paper then set out the Judge's sentencing remarks in relation to those earlier offences. They are in part as follows: "the home of some Asian citizens were [invaded] late at night by a group of youths or young men who were armed and masked and it was a terrifying situation for the people who were in the house. … The prisoner also pleaded guilty to 3 counts on a 51A of breaking, entering and stealing, threatening to use an instrument with intent to prevent his lawful apprehension and having in his possession implements of housebreaking. They all occurred on 19 October 1990, and occurred while he was on bail for those offences. … However, he has since that time, as I say, committed these offences whilst on bail and it must be noted that they are offences of violence in that the breaking, entering and stealing of the shop is not in itself, is not a violence in the strict sense of the word, that there was a result of some bystanders coming into the premises threats used of attack them with some sort of shifting spanner and violence was offered to them. So that has got to be taken into consideration and the courts in this state had said that matters that are committed whilst a person is on bail normally attract a cumulative sentence …."

The Paper told the Minister that on the basis of the sentencing remarks it was open to him to find that the appellant's "conduct against the community" was serious.

100 The Paper then listed the drug offences, without otherwise commenting on them. 101 Under the heading "General deterrence" (par 2.11 of the Direction) the Paper again listed the earlier offences and commented that it was open to the Minister to find that cancellation of the visa would serve as "a deterrence factor against others committing similar offences", and stated that the Government has a strong interest in deterring others from committing offences of this nature. Under the heading "Expectations of the Australian Community", the Paper said the offences committed by the appellant were considered by the Government to be "very serious". This is clearly a reference to the earlier offences. 102 Under the heading "National Interest" the Paper concluded: "Your Ministerial Direction No 21 clearly notes that 'armed robbery, home invasion and any other crimes involving violence or the threat of violence … are of special concern to the welfare and safety of the Australian community'. As recently as August 2001, you joined with the Premier of New South Wales in publicly denouncing violent crime in Australia and in particular violent criminal behaviour committed by non‑citizens …. You may therefore consider that it is in the national interest to exclude non‑citizens who have convictions for violent crimes such as those committed by Mr Lu as they are particularly repugnant to the Australian community. The Government has a responsibility to protect the community from the actions of offenders who have committed violent crimes of the nature of those committed by Mr Lu."

That concludes the Department's advice to the Minister. The remaining page of the Paper lists the range of decisions available to him, and he is invited to cross out the ones he does not propose to make. That page contains nothing of present relevance.

103 As is apparent from the foregoing, the emphasis throughout the Issues Paper is on the earlier very serious offences. A reading of the Paper as a whole amply justifies the observations of the primary judge recorded at [22], and leads to the conclusion that had the sentences for the drug offences been accurately set out in the Paper, it could not have materially affected the Minister's decision. 104 After I had prepared the foregoing reasons, I read in draft form the reasons of Sackville J. I agree with his Honour that the correct approach is to adopt a "possibility" and not a "probability" test. That accords with my understanding of Mason J's "could" formulation in Peko‑Wallsend. Although at an early stage of the respondent's argument the expression "could and would not have materially affected the decision" was employed, it was immediately resiled from after inquiry from the bench, and thereafter the appeal was argued on the basis that the relevant question was whether, had the correct sentencing information been before the respondent, it could have made a difference to his decision. There was ultimately no submission that the respondent would probably have reached the same conclusion, or that he was likely to have reached the same conclusion, had he taken into account the correct information. In those circumstances, the respondent's "could" formulation correctly propounded a possibility test. 105 Accordingly, the view I have expressed in [32] is not affected by my agreement with what Sackville J has written about the proper test to be applied. 106 I would dismiss the appeal. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Solicitor for the Respondent: Australian Government Solicitor

Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998(Cth)sch 1

Migration Act 1958(Cth)s 501A(2), s 501A(2)(b)

The Peko-Wallsend Principle 36 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39, Mason J said that the 'failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action.' This principle applies only where the relevant statute, as a matter of construction, requires a particular consideration to be taken into account: Peko-Wallsend, at 39-40. 37 Mr Star, who appeared for the respondent ('the Minister') conceded that the appellant's criminal record, including the sentences imposed on him, was a consideration that the Minister was bound by s 501A of the Migration Act 1958 (Cth) ('Migration Act'), to take into account 'in the Peko-Wallsend sense'. This concession was based on the language of s 501A(2)(c) and (d) which imports the character test as defined in s 501(6). 38 Mr Star also accepted that errors in describing a person's criminal record may result in a decision under s 501A of the Migration Act being affected by jurisdictional error and thus not protected by the so-called privative clause (s 474): cf Craig v South Australia (1995) 184 CLR 163, at 179, per curiam; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, at 351 [82], per McHugh, Gummow and Hayne JJ; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, at 506 [76], per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93, at 107 [45], per curiam. However, Mr Star submitted that the mere fact that the Issues Paper provided to the Minister misdescribed the appellant's criminal record was not of itself sufficient to constitute a jurisdictional error. 39 Mr Star relied on the qualification stated by Mason J in Peko-Wallsend, at 40: 'Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.' (Emphasis added.) Mr Star contended that it had been open to the primary Judge to reach the following conclusion ([2004] FCA 543, at [57]): 'In some cases, erroneous information regarding a person's antecedents might lead to the invalidity of a decision to remove that person on character grounds. In the present case, however, the objective facts strongly suggest that the matters that were erroneously placed before the Minister played little, if any, role in his decision. It was the very serious offences committed in 1990, coupled with the fact that some of those offences were committed whilst the [appellant] was on bail, that plainly swayed the Minister, and not the cannabis offences committed at a later time.' 40 It will be noted that the qualification stated by Mason J in Peko-Wallsend is directed to the situation where a decision-maker fails to take into account a relevant consideration, but the failure could not have materially affected the decision. Peko-Wallsend itself was a case arising under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'). Accordingly, the High Court was concerned only with the statutory grounds for judicial review under the ADJR Act, not with the concept of jurisdictional error. In the present case, however, the appellant can succeed only if he establishes jurisdictional error on the part of the Minister. If Mason J's observations apply in the present context, as both parties appeared to assume, they might mean either:

that a failure to take into account relevant considerations will not constitute jurisdictional error if the failure could not have materially affected the decision; or alternatively
that the failure constitutes a jurisdictional error, but that relief should be withheld as a matter of discretion where the failure could not have materially affected the decision.

Ex parte Aala 41 The decision in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, although concerned with a contravention of the rules of procedural fairness, sheds some light on these questions. In that case, Gaudron and Gummow JJ (with whom Gleeson CJ and Hayne J agreed) said that the statement of Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185, at 194, should be accepted as the correct approach to the exercise of original jurisdiction in which a writ of prohibition is sought against an officer of the Commonwealth. (Such relief is sought in the present case.) Gibbs CJ's statement was as follows: 'If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course.' Gaudron and Gummow JJ (at 106 [51]-[52]) took the expression 'want or excess of jurisdiction' in this passage to include the consequences of a failure to observe the rules of natural justice in the exercise of a power or authority conferred by statute. Their Honours said (at 116-117 [80]) that in the case before them the denial of natural justice had deprived the prosecutor of the 'possibility of a successful outcome', citing Stead v State Government Insurance Commission (1986) 161 CLR 141, at 147. 42 Gleeson CJ expressed agreement with the judgment of Gaudron and Gummow JJ. His Honour observed (at 88 [3]) that had the prosecutor been given an opportunity to correct a misunderstanding created by an erroneous statement by the Refugee Review Tribunal, 'a different view might have been taken as to [the prosecutor's] credibility'. His Honour also cited a passage from Stead, at 145, in which the Court stated that a new trial would not be ordered on grounds of procedural unfairness: 'if it would inevitably result in the making of the same order as that made … at the first trial… However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact.' (Emphasis added.) Gleeson CJ concluded (at 89 [4]) that 'no one [could] be sure' that if the prosecutor had been given a fair opportunity to deal with the point the Tribunal's decision would have been the same. 43 In Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541, a Full Court of this Court construed other judgments in Ex parte Aala as being to the same effect as that of Gleeson CJ: see Dagli, at 558 [92], referring to Gaudron and Gummow JJ at 116-117; McHugh J at 122; Kirby J at 130-131; see, too, Hayne J at 144; Callinan J at 153-154 [211]; see also Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 23, at 34-35 [38]-[40], per Sackville J. The Court in Dagli took Ex parte Aala as authority for the proposition that if a breach of the rules of natural justice is established, an applicant is ordinarily entitled to relief unless the Court is satisfied that the breach could have had no bearing on the outcome: at 557 [91]. See, too, Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 184, at [44], per curiam. 44 In Ex parte Aala, Gaudron and Gummow JJ observed (at 109 [59]) that: 'the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for "trivial" breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v).' 45 Their Honours suggested (at 109 [60]) that cases which are said to turn on 'trivial' breaches of the rules of procedural fairness are often better understood on other grounds: 'In particular, it is trite that, where the obligation to afford procedural fairness exists, its precise or practical content is controlled by any relevant statutory provisions and, within the relevant legislative framework, this will vary according to the circumstances of the particular case.' In other words, an apparent departure from the highest standards of procedural fairness may not amount to a breach of the obligation to afford procedural fairness applicable to the particular circumstances of a case.

The First Question 53 Section 501A(2) of the Migration Act confers a discretion on the Minister to set aside the 'original decision' and cancel a visa if:

the Minister reasonably suspects that the person does not pass the character test;
the person does not satisfy the Minister that he or she passes that test; and
the Minister is satisfied that the cancellation is in the national interest. The character test is not satisfied if the person has a 'substantial criminal record': s 501(6)(a). A person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of twelve months or more, or has been sentenced to two terms of imprisonment totalling two years or more: s 501(7). 54 I see no reason to doubt the correctness of the concession made by Mr Star. It is true that the authorities have accepted that s 501 prescribes the failure to satisfy the character test as a condition precedent to the exercise of the discretion to cancel a visa and does not create a presumption as to how the discretion should be exercised: Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514; 65 ALD 667, at [10], per Dowsett J, cited with approval by Kiefel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 211 ALR 126, at 143 [72]. It is also true that in the latter case the majority of the Full Court held that the Minister was not bound to take into account either the circumstances in which an offence was committed or the remarks of an appellate court when varying the period of the appellant'snon-custodial sentence: see at 142-144 [71]-[76], per Kiefel and Bennett JJ. But the present case involves something quite different, namely the misdescription of the sentences actually imposed on the appellant. 55 It is within the scope and purpose of s 501A(2) of the Migration Act, which allows the Minister to set aside the 'original decision' in the circumstances identified in [19] above, that the Minister should have regard to the offences for which the person was convicted and the sentences imposed in respect of those offences. As Wilcox J observed in Minister v Huynh, at 136-137 [43], these are essential matters in assessing the degree of criminality in the offences and their significance in determining whether it is desirable to cancel the person's visa and to remove him or her from Australia. In short, they indicate the seriousness of the person's conduct and the threat he or she poses to the Australian community. It must be remembered that s 501A(2) confers a power on the Minister not merely to cancel a visa, but to set aside a decision of the AAT not to cancel the visa. It is unlikely that Parliament contemplated that the Minister could exercise a power having such drastic consequences for a permanent Australian resident on the basis of incorrect information as to the offences committed by the visa holder and the sentences imposed for those offences. It follows that if the Minister fails to take into account a visa holder's correct criminal record because the Department provides incorrect information, ordinarily the Minister will have failed to act in accordance with the requirements of s 501A(2) and therefore will have acted in excess of jurisdiction. 56 As I have suggested, it may be that a minor error relating to the convictions or sentences imposed on the visa holder will not in substance result in the Minister failing, in a relevant sense, to take account of that person's criminal record. But I do not think that the errors in this case were consistent with the Minister's statutory obligation to take the appellant's correct criminal record into account. 57 The Issues Paper stated (par 4) that in 1993 and 1997 the appellant had been convicted of the following offences: 'Self Administer Drugs Possess implements to administer drugs Possess prohibited drug.' The total sentences for drug offences in 1993 and 1997 were said to be: '9 months served concurrently with his prison term.' Paragraph 22 of the Issues Paper said this: 'Whilst incarcerated [the appellant] was convicted in 1993 for the offences of Self Administer Drug, Possess Implements to Administer Drugs and Possess Prohibited Drug. He was also convicted in 1997 for the offences of Possess Prohibited Drug, Possess Implements Utensils To Administer Prohibited Drug and Self Administer Prohibited Drug. The resultant sentences were to be served cumulatively with his main sentence.' The last sentence of par 22 of the Issues Paper is, of course, inconsistent with the reference to a concurrent sentence in par 4. 58 The information in the Issues Paper concerning the appellant's 1993 and 1997 convictions was inaccurate in two major respects. On 28 June 1993, the appellant had been convicted at the Bathurst Local Court of three offences:

The Second Question 62 Given that the Minister committed a jurisdictional error by failing to take into account a relevant consideration, it is necessary to consider whether the appellant should be denied relief on the ground that the failure could not have materially affected the Minister's decision. A difficulty that arises here is an ambiguity in the language used by Mason J in Peko-Wallsend. What does it mean to say that a factor is so insignificant that it 'could not have materially affected the decision'? Does it mean that a particular decision-maker probably would have reached the same conclusion if he or she had taken the consideration into account? Does it mean that on the material before the decision-maker the conclusion he or she reached was inevitable, and that the omitted consideration could not have made any difference to a rational decision-maker? Or does it mean something else? 63 Mason J recognised the ambiguity in his formulation when he noted (at 40) that the principle was supported by 'various expressions' in the authorities. In R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] 1 QB 227, one of the authorities cited by Mason J, Griffiths LJ said (at 260) that a court should not intervene, even where relevant factors had not been taken into account, 'unless it is convinced that this would have resulted in the decision going the other way'. In Hanks v Minister of Housing and Local Government [1963] 1 QB 999, another of the cited authorities, Megaw LJ (at 1020) merely said that there might be cases where the factor wrongly omitted was 'insignificant' and thus would not justify concluding that the exercise of power was 'bad'. 64 It seems to me that the correct approach is that stated in Stead and adopted by the High Court in Aala. The test is whether the applicant has been deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of the statute. If so, the jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant. The test must be applied by reference to the material actually before the decision-maker and, where the decision-maker's reasoning processes is known, taking into account his or her approach to the exercise of the particular statutory power. The question is not whether the decision-maker would probably have reached the same result even if the omitted consideration had been taken into account. 65 To answer the appropriate question, it is necessary to consider the long history of the present case. In 1991, the appellant was convicted of four counts of armed robbery arising out of a 'home invasion'. As I have noted, he was sentenced to six years and six months imprisonment. While on bail awaiting trial for the armed robbery charges, he committed further offences, including break, enter and steal and possessing housebreaking implements. Each of these offences resulted in sentences of twelve months' imprisonment, to be served concurrently with the principal sentence. While in prison, the appellant committed the drug offences to which reference has been made. The attempt to remove him from Australia began as long ago as 6 June 1997 (before he completed his custodial sentence), when a deportation order was made pursuant to s 200 of the Migration Act. Since then the appellant has been engaged in protracted litigation with the Minister. 66 There is little doubt that the principal factors influencing the Minister were that the 1991 convictions could be classified as very serious offences, that the appellant had a medium to high risk of recidivism and that deterrence would be served by his removal from Australia. The last point was supported in the Issue Paper by par 27: 'The offences committed by [the appellant] were Armed Robbery (4 counts) House Breaking Implements in Possession, Break, Enter and Steal - Burglary (3 counts), Threaten To Use Offensive Weapon With Intent to Resist Arrest. It is open for you to find that cancellation of [the appellant's] visa would serve as a deterrence factor against others committing similar offences. The Government has a strong interest in deterring others from committing offences of this nature.' It will be seen that this paragraph makes no reference to the drug offences. 67 If the question was whether the Minister would have been likely to reach the same conclusion had he known the correct position concerning the drug offences, I would have little hesitation in answering in the affirmative. But as I have explained, that is not the question. The question is whether the appellant was deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of s 501A(2) of the Migration Act. 68 The material before the Minister may well have been interpreted by him as indicating that the appellant had been convicted of using 'hard' drugs in prison. A cumulative sentence of nine months imprisonment for these offences (as the Issues Paper erroneously recorded) suggests that the offences committed in prison were serious. While the Issues Paper did not refer to the 1993 and 1997 drug offences under the headings of 'The seriousness and nature of the conduct' and 'General deterrence', they were specifically referred to in par 22, under the heading 'The likelihood that the conduct may be repeated'. Other material in the Issues Paper made it clear that the drug use offences had been committed while the appellant was in prison. The Minister may well have formed the view that the appellant was at high risk of recidivism on the basis, in part, of a mistaken view of the nature and seriousness of the appellant's drug use in prison. 69 While this case is close to the line, I have formed the view that the appellant was deprived by the errors of the Department of the possibility of a successful outcome. Had the Minister been presented with the correct details of the appellant's drug use convictions and sentencing, he may have taken a different view of the appellant's risk of recidivism and thus he may have refrained from making an order pursuant to s 501A(2) of the Migration Act cancelling the appellant's visa. 70 I should make several further points. (i) The appellant is not entitled to succeed unless error has been demonstrated on the part of the primary Judge. The primary Judge may have had Peko-Wallsend in contemplation when he said (at [57]) that the very serious offences committed in 1990 (including those committed while on bail) had swayed the Minister, not the cannabis offences. But, as I have noted, the question is not simply what motivated the Minister, but whether the appellant was deprived of the possibility of a successful outcome by the failure to consider his true criminal record. I do not think that the primary Judge directed attention specifically to that question. (ii) I regard the reasons provided by the Minister long after the cancellation decision to have little bearing on this case for two reasons. First, the reasons, which are based on the Minister's best recollection nineteen months after the event, must be treated with great caution: Dagli, at [67]. Secondly, the reasons do not address the critical question in these proceedings, namely whether the provision of the correct information concerning the appellant's drug use convictions might have led to a different outcome. (iii) I think it appropriate, in determining the question that arises for decision, to take into account the serious consequences for the appellant if his visa is validly cancelled. It is clear that he has not made a substantial contribution to the well-being of his adopted country. But he has lived here for 22 years, since he was aged 13. If he is to be removed, it should be on the basis of an accurate recitation of his criminal record. (iv) In Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 139, a Full Court, of which I was a member, rejected a contention that the Minister had denied the appellant in that case procedural fairness by misstating aspects of his criminal record. The Court applied the test of 'practical injustice' and concluded that there had been no such injustice, having regard to the nature of the errors and the approach the appellant and his advisors had taken in explaining his criminal record to the Minister. Ayan turned on its own facts, as does the present case.

Lu v Minister for Immigration & Multicultural & Indigenous Affairs

At a glance

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Before

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Judgment (25 paragraphs)

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Legislation Cited (4)

Cases Cited (17)

Cited By (32)