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[2003] FCA 936
Federal Court of Australia
2003-09-05
Kenny J
Original judgment source is linked above.
REASONS FOR JUDGMENT introduction 1 The applicant is a citizen of Vietnam who fled that country with his brother over twenty years ago. He arrived in Australia on 21 October 1980 and has not left Australia since that date. He was aged fourteen years on his arrival. 2 On 17 January 1990, the applicant was sentenced to sixteen years' imprisonment for murder and four years' imprisonment for intentionally causing serious injury, the sentences to be served concurrently, with a minimum term of twelve and a half years before being eligible for parole. On 24 October 2002, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") cancelled his visa upon the basis that the applicant did not pass the character test defined in s 501 of the Migration Act 1958 (Cth) ("the Act") by reason of the fact that he had "a substantial criminal record" as defined by s 501(7). The principal question in this case is whether the Minister breached the rules of procedural fairness in making this decision. procedural matters 3 On 7 February 2003, pursuant to s 44(2A) of the Judiciary Act 1903 (Cth), the High Court of Australia remitted this matter to the Federal Court of Australia. The applicant sought relief by way of certiorari and prohibition, declaration and injunction, in connection with the Minister's decision to cancel his visa. The matter was heard and fell for determination in conformity with Order 51A of the Federal Court Rules. relevant legislation 4 In cancelling the applicant's visa, the Minister purported to exercise the power conferred on him by subs 501(2) of the Act, which provides as follows: (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. Paragraph 501(6)(a) relevantly provides that, for the purposes of s 501, a person does not pass the character test if "the person has a substantial criminal record (as defined by subsection (7))". Subsection 501(7)(c) provides that a person has a "substantial criminal record" if "the person has been sentenced to a term of imprisonment of 12 months or more". 5 Where the Minister cancels a visa under s 501(2), the Minister is required, by s 501G, to give the visa holder a written notice that sets out the decision, specifies the provision under which it is made and the effect of the provision, and sets out the reasons (other than non-disclosable information) for the decision. Whilst s 500(1) provides for review by the Administrative Appeals Tribunal ("AAT") of a decision of a delegate of the Minister under s 501, there is no provision for review by the AAT in the case of a decision made by the Minister personally (as in this case). background circumstances 6 When the applicant, who was born on 7 July 1966, entered Australia, he had no command of the English language. He left school before completing Form 3 (now Year 9). He had difficulty in finding employment. Between 1986 and 1988, he was convicted of various offences - theft of a motor car (1986 and 1988); unlicensed driving (1986 and 1988); failure to answer bail (1986); unlawful assault (1987); assault in company (1987); and assault by kicking (1987). 7 On the evening of 9 June 1988, the applicant, who was then twenty-one years old, was involved in a fight in Victoria Street, Abbotsford (an inner-city suburb of Melbourne). At some stage, he armed himself with a M1 Carbine semi-automatic rifle and fired some shots from it, seriously injuring one man. He subsequently chased another man into a side street and shot him in the head. His second victim later died from the gunshot wound inflicted by him. On 18 June 1988, the applicant, who had fled to Sydney, gave himself up to police in that city. 8 In mid-December 1989, the applicant was convicted of murder and of intentionally causing serious injury. In sentencing the applicant, on 17 January 1990, the trial judge said, among other things: The murder of [the deceased] has no redeeming features or mitigating circumstances, in my opinion. [The deceased] did not provoke [the applicant] or attack [the applicant] in Victoria Street. I find, as I believe the jury did, that [the applicant] pursued [the deceased] for some time, not only in Victoria Street but into other streets and up a lane armed with an M1 carbine until finally you cornered him in a small enclosed garden where you shot him in the head in a very cold blooded manner. You showed him no mercy whatsoever. … . … [O]ne would be very hard hearted indeed not to feel extreme sympathy for a person such as [the applicant] who has undergone such personal hardship and been forced to leave his own country, to leave behind his mother and to lose contact with members of the family. It is indeed correct to describe [the applicant's] life when [he] arrived in this country as a deprived life. [The applicant was] a lonely person in a foreign environment and [he] had to struggle to survive within a foreign culture and society. However, I think [he has] not done [his] best to overcome the difficulties which [he] faced. … . Having served his non-parole period, the applicant was released from Loddon Prison on 27 April 2002. He lived in the community until he was taken into immigration detention in November 2002. He will be kept in detention until he is removed or deported from Australia or is granted a visa: see s 196. His parole period is due to expire on 26 October 2005. 9 A delegate of the respondent Minister made an order for the applicant's deportation on 24 August 1998, pursuant to s 200 of the Act. On 14 September 1999, however, the AAT set aside this decision and remitted the matter to the Minister, with a direction that the deportation order be revoked. In making this decision, the AAT had regard to the Minister's General Direction (which was dated 21 December 1998 and made under s 499 of the Act). This General Direction was in all relevant respects the same as the General Direction current at the time the Minister made his subsequent decision to cancel the applicant's visa. I summarise the Tribunal's reasons in the following paragraphs because they have some bearing on the case that the applicant presents in this Court. 10 The AAT (constituted by Deputy President BM Forrest) acknowledged that the applicant's conviction for murder "revealed a crime of extreme viciousness", noting that: In the context of seriousness, unlawfully taking another person's life is unquestionably at the upper end of the gravity scale. According to the Tribunal, however, there was "considerable evidence pointing to the applicant's rehabilitation"; and it concluded: Given the gravity of the deportable offence, only a very low risk of recidivism is acceptable to the community: … . On the sum total of the evidence of the applicant's rehabilitation, he is in my opinion an acceptable risk to the community. 11 Discounting the Minister's submission that deportation would be likely to discourage similar offences and "gang warfare in general", the Tribunal observed that there was no evidence that "gang warfare" was a problem in Melbourne. Amongst other things, the Tribunal stated: [I]t seems to me from a reading of the sentencing remarks of [the trial judge], that irrespective of the question of deterrence in a deportation context, there was a substantial element of general deterrence in the sentences that the Court imposed and one that could be expected to have had a salutary effect on the applicant's acquaintances in the Vietnamese community. 12 The Tribunal accepted that, as a general statement of community expectation, "the objective bystander, would, having regard to the circumstances of the offence, regard the intentional killing of an unarmed person as an abhorrent crime". Yet the Tribunal said: I do not think that deportation should be ordered simply on the basis of the abhorrence of the crime of murder without regard to the primary and common considerations … discussed in these reasons. … . Clearly the 'abhorrence' of the crime is to be given as the policy dictates, such weight as is appropriate proportionally to the decision maker's understanding of community attitudes to the offence. In this case I am satisfied that the weight of this factor is considerable. 13 After considering the hardship that he and members of his family, especially his mother, would suffer if the applicant were deported, the AAT concluded: Having considered all of the evidence and submissions and weighing up the relevant considerations required to be taken into account, the competing factors are finely balanced. Against the applicant in [sic] the nature and circumstances of his criminal behaviour and the expectation that persons who commit such an offence be removed from Australia. There is however a good deal of evidence which I have accepted that the protection of the community is not in jeopardy by his continuing presence. That together with the undoubted hardship to the applicant and also to family members who are Australian citizens, in the event of deportation, tip the balance ever so slightly in the applicant's favour of being permitted to remain in Australia. Also the applicant because of his age and the efforts he has made to rehabilitate himself, has the potential, hitherto lacking, to make a contribution to this community. 14 Notwithstanding the AAT's decision, on 1 May 2001, whilst still in Lodden Prison, the applicant received a notice dated 26 April 2001 informing him that the cancellation of his visa was again under consideration, this time by the Minister personally under s 501(2) of the Act. The notice invited a written response, stating: In preparing your comments please read the contents of the Minister's Direction fully and carefully. You should address each and every topic that you feel applies to you or is relevant to your circumstances. You may also wish to provide any further information that you feel the Minister ought to be aware of and take into account. The Department provided him and his legal representatives with a copy of the Minister's General Direction No 17 and, subsequently, with General Direction No 21 (which replaced No 17), as well as notes of an interview with the applicant on 23 April 1998 and prison reports. 15 The applicant's lawyers made submissions on his behalf, including by letters received by the Department in October 2001 and January 2002. Both through his lawyers and personally, the applicant acknowledged his criminal history, submitting that he understood and regretted the serious wrongs he had done; that he would not re-offend; that he had taken every opportunity to profit from the opportunities available to him in prison; that he intended to establish himself in work and in a stable domestic situation upon his release; and that he would suffer serious hardship if he were to return to Vietnam, where he had no ties and would not be able to receive certain treatment for his skin condition. 16 The applicant's lawyers made a submission in their October 2001 letter that assumed particular importance in the submissions made on the applicant's behalf at the hearing of his application in this Court. Amongst other things, in this letter, his lawyers submitted that: The Minister has a duty to consider, and give appropriate weight to, all relevant material when arriving at his decision. … . However, if he proposed to reach a view less favourable to [the applicant] than that found by the Tribunal, he is bound as a matter of procedural fairness to notify [the applicant] of this and accord him an opportunity to address it. … It is conceded that [the applicant] committed very serious crimes. … . …. The Minister made submissions before the Tribunal about the risks [the applicant] posed to the community and as to the deterrent effect of deporting [him]. … The Tribunal's findings are relevant. It is contended that [the applicant] poses negligible, if any, risk to the Australian community if he is permitted to resume his life in the Australian community. … [The applicant] has an extended family in Australia. They are Australian citizens. … [The applicant's family] have not abandoned him while he is in prison. They maintained regular contact with him, visiting him when they can. They will provide support to him when he is released from custody and assist him in adjusting into the community. [The applicant's mother], in particular will … suffer great emotional hardship if [the applicant] is deported from Australia. She has made Australia home. She is now well assimilated into Australian society. It is not practical for her to return to Vietnam. Nor does she wish to do so. … [The applicant] came to Australia as a minor. He was 14 years old. He came with his older brother. He has considered Australia home since [then]. He has no viable family or social network if he is repatriated to Vietnam. He is practically an Australian save for his non-citizenship. If he is repatriated to Vietnam, he will suffer incalculable hardship. … In our submission, the Australian community will consider [the applicant] adequately punished by serving his prison sentence. It will consider he ought to be treated as other members of the community who, having completed their punishment, are allowed to resume their lives in society. It is submitted that the Australian community would [not] press for [the applicant's] removal from Australia. (Emphasis added) 17 The submission was accompanied by a copy of a memorandum dated 15 August 2001 addressed to the applicant's lawyers from a senior prison officer at Lodden Prison. Omitting formal parts, the memorandum read: [The applicant] has been at this location since 1997 at which time he has given management no cause for concern. Throughout his sentence [the applicant] has completed many personal and educational programs. Since his incarceration [the applicant] has learnt to speak and write English … achieving an acceptable standard. To improve his future employment prospects … [the applicant] has studied numerous courses … . At all times he has demonstrated an excellent attitude towards staff and by actively participating in programs he has showed his willingness to rehabilitate himself. 18 In a subsequent submission, the applicant's lawyers said, amongst other things: In light of your decision to not obtain any professional reports on [the applicant], and in light of the fact that you have not raised any issues concerning the topic with [the applicant] or us, we assume that you accept he is not a risk to the Australian community. However, should we be wrong in our assumption, please notify us and provide the facts that you rely on to reach a contrary view so that [the applicant] can have an opportunity to respond before the matter goes to the Minister. If you accept that [the applicant] does not pose a risk to the Australian community the only remaining consideration of significance, in the Minister's Direction is the expectations of the Australian community. In this respect, we submit that [the applicant's] repentance and rehabilitation will be well received by the Australian community. We submit that the expectations of the community is that [the applicant] has served his punishment and ought not be further excluded from the society he has chosen to live in: the Australian society. (Emphasis added) 19 An officer of the Department of Immigration and Multicultural and Indigenous Affairs (Ms Marciniak) interviewed him on 12 September 2001 and, again, on 21 August 2002. According to a note, apparently prepared by Ms Marciniak, "[t]he purpose of the [August 2002] interview was to discuss his circumstances since his release from prison to parole on 27 April 2002". The applicant himself wrote to Ms Marciniak, by letter dated 29 August 2002, saying: When I was 22 years old, I made a big mistake. I committed a serious crime and I was punished with a long sentence in prison. I paid the price by spending all my young adult life in prison. All that time I lived in constant remorse for my past action. It was my nightmare, living in sorrow and depression. I suffered from health problems as a result of this and I had to take medication for a long time in prison. The time in prison has taught me much already. I have learned a big lesson. That is why, in prison, I didn't interact with other inmates as I didn't want to be influenced by them. … I know that my crime was serious, but I will not be stupid again. I assure you that I have never done anything wrong again. I am asking you to give me a chance to prove that I will be a good citizen. … . There were other letters of support written on the applicant's behalf to Ms Marciniak, including letters from his mother, sister, sister-in-law and other members of his family and a parish priest. A note of an interview with the applicant's brother in May 1998 was also attached to the Minute prepared for the Minister's consideration (see below). 20 In letters addressed to Ms Marciniak, the applicant's lawyers asked her to supply them with a copy of any submission she proposed to provide to the Minister and whether the Department intended to obtain "a psychological or psychiatric report" on the applicant. By letter dated 9 October 2002, Ms Marciniak wrote to the applicant's lawyers, informing them that the applicant's case: … is currently under consideration. It is expected that his case will be referred to the Minister for decision shortly. I trust that you will agree that ample time has been made available for submissions to be lodged on [the applicant's] behalf. Please be assured that all matters relevant to the consideration have been put to [the applicant]. Matters raised in the submissions received on [the applicant's] behalf will also be included in the submission to the Minister. I am unable to provide a copy of the submission prepared for the Minister prior to his decision, however, a copy of the decision record will be provided after the Minister's decision has been made. the decision 21 General Direction No 21 ("the Direction") was current when the Minister was considering the cancellation of the applicant's visa. The Direction, which was made under s 499 of the Act, stated that it was to provide "guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. Although the Direction was, pursuant to s 499(2A), binding on delegates of the Minister in considering the cancellation of visas, it was not binding on the Minister in personally exercising the cancellation power conferred by s 501(2). It was, however, open to the Minister to have regard to the Direction in reaching such a decision. Referring to par 501(6)(a) and subs 501(7), the Direction recorded that "[a] non-citizen does not pass the Character Test if they have a substantial criminal record"; and, in this case, decision-makers were to decide whether or not the non-citizen should be permitted to enter or remain in Australia. In this connection, the Direction required a decision-maker to have regard to "primary" and "other" considerations. There were three primary considerations: the protection of the Australian community, the expectations of the Australian community and (where relevant) children's best interests. As regards community protection, the factors to be considered were the seriousness and nature of the relevant conduct, the risk of recidivism, and the deterrent effect of visa refusal or cancellation. Concerning community expectations, the Direction stated: The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect. The Direction acknowledged that, in addition, there might be other matters that might be relevantly taken into account, although "given less individual weight" than the primary considerations. 22 The Minute to the Minister ("the Minute"), which was apparently prepared by Ms Marciniak and was accompanied by copies of the documents to which it referred, noted that it was "open" to the Minister to find that the applicant has "a substantial criminal record under s 501(7)(c)"; and that there is a reasonable suspicion that he "does not pass the character test due to the fact that he has been sentenced to a term of imprisonment of 12 months or more". Having recorded that it was also open to the Minister "to be guided by the factors set out in the [General] Direction"; the Minute also stated that it was open to the Minister to find that (a) the applicant is "at a low risk of recidivism"; (b) the cancellation of his visa "would serve as a deterrence factor against others committing similar offences"; and (c) "the majority of the Australian community might expect that a person convicted of criminal offences such as those committed by [the applicant] would have his visa cancelled and not be allowed to remain in Australia". 23 In discussing the risk of recidivism, the Minute specifically referred to numerous matters, noting (amongst other things) the applicant's age when he committed the crimes and the passage of time; the AAT's view that his "prior offences did not reflect a propensity towards recidivism"; the applicant's statements of regret; his pursuit of educational courses whilst in prison; the support of representatives of the Brosnan Centre and the Society of St Vincent de Paul; favourable prison reports; and his good parole record. The Minute stated: The available evidence suggests that [the applicant] regrets his crime, has a strong sense of having lost years of his life and determined to use his time in prison positively to acquire skills and prepare himself for a positive life on his release into the community. Deputy President Forrest stated, "Despite the fact that he has spent most of his time in Australia in prison … given the steps he has taken to rehabilitate himself and the skills he has acquired since his offending, he has the potential to make a contribution to the community". Although the Minute recorded that the Minister could find that the cancellation of the applicant's visa would serve as a deterrent, it noted the AAT's finding that there was "no evidence to suggest that 'gang warfare' was a problem". 24 According to the Minute, there were a number of other considerations that the Minister might consider, including his family ties in Australia and the absence of family in Vietnam; his acquisition of English and knowledge of Australian society; and his medical condition. The Minute observed: It would seem fair to say that [the applicant] has considerably greater personal, physical and emotional ties to Australia than to Vietnam. In fact, he would seem to retain no links with Vietnam at this point in his life. It is reasonable to expect that [the applicant] would face significant hardship if he were removed from the ongoing support that would be available to him in Australia to Vietnam where he has no employment or accommodation and little or no support would be available to him. 25 The Minute, which noted the letters of support from the applicant's family and a Minister of Religion, described the position of the applicant's mother and the other members of his family, observing: The family made strenuous efforts to maintain family relationships and provide support to [the applicant] while he was incarcerated, however, it will not be possible to maintain these links or provide meaningful support to him, if [the applicant] is removed from Australia. In connection with his medical condition, the Minute recorded that the applicant suffered from "a chronic skin condition … which is often acute and debilitating" and that he feared that, if deported to Vietnam "where he has no-one and would not know where to go or how to begin his life, his stress levels would be compounded and consequently his situation would be a hundred fold worse". 26 On 24 October 2002, the Minister cancelled the applicant's visa pursuant to s 501(2) of the Act, certifying as he did that: I reasonably suspect that [the applicant] does not pass the character test and [the applicant] has not satisfied me that he passes the character test and I have decided to exercise my discretion under subsection 501(2) of the act to cancel the visa, so I hereby cancel the visa. 27 On 19 November 2002, the applicant received a "Notice of Visa Cancellation Under Subsection 501(2) of the Migration Act 1958". Since the Minister made the cancellation decision personally, the applicant was unable to seek review by the AAT. With the cancellation of his visa, the applicant became an unlawful non-citizen and was taken into immigration detention pending his removal from Australia. 28 A copy of a document recording the Minister's reasons for cancelling the applicant's visa was exhibited to an affidavit sworn on 6 June 2003 by the respondent's solicitor. The Minister's statement read in part (and omitting headings) as follows: [The applicant's] case is one of many visa cancellations that I have personally considered. This document sets out to my best recollection the reasons for my decision of 24 October 2002. … In making my decision I took into account the [Minute], all matters referred to in that document, and all of the annexures to that document. … . … As a consequence of his sentences on 17 January 1990, of imprisonment for a period of more than 12 months, [the applicant] was deemed to have a substantial criminal record and not to pass the character test by virtue of s 501(6)(a) with reference to s 501(7)(c) of the Act. For the above reasons I formed the necessary reasonable suspicion that [the applicant] does not pass the character test and he was unable to satisfy me that he passes the character test. … I then considered whether to exercise my discretion to cancel the visa of [the applicant]. While not bound by my own General Direction number 21 … following my usual practice I proceeded to be guided by the Direction. … . Accordingly, I gave primary consideration to the protection of the Australian community and the expectations of the Australian community. I then went on to consider other considerations in relation to [the applicant]. I gave primary consideration to the protection of the Australian community, taking into account the seriousness and nature of [the applicant's] conduct, the likelihood that such conduct might be repeated and general deterrence. [The applicant] was convicted of the two very serious offences of 'Murder' and 'Intentionally Cause Serious Injury'. In addition in 1987, he was charged with the offences of 'Unlawful Assault', 'Assault in the Company' and 'Assault by Kicking' for which he was placed on a good behaviour bond. … . These constitute crimes that I consider to be very serious … . … [The applicant] has intentionally caused serious injury and has on 9 June 1988 committed Murder, his conduct during the incident caused serious disruption to a number of Australian citizens and residents and caused them to have concerns in relation to their own safety and that of their property. I consider this conduct to be very serious. The nature of [the applicant's] conduct and its effect on the community is such that I gave this consideration great weight. … I considered [the applicant's] time in prison and noted that this has been spent positively. … I noted the comments made by [the applicant's] case worker, who advised on 27 September 2002, that [the applicant] is complying satisfactorily with his parole conditions and that his case has been reduced from the high to low risk category. … . However, given the very serious nature of the offences committed by [the applicant] on 9 June 1988, I placed relatively little weight on his risk of recidivism. The very serious offences committed by [the applicant] were 'Murder' and 'Intentionally Cause Serious Injury' and occurred in the context of a violent affray between two groups. In considering whether the cancellation of [the applicant's] visa would act as a deterrent to other non-citizens who might engage in similar activities, I found that cancellation in this instance would provide a deterrent effect and that other non-citizens would take the consequences of cancellation and removal from Australia seriously. Overall I placed moderate weight on this consideration. I gave primary consideration to the expectations of the Australian community. … . … The offence committed by [the applicant] is considered by the Government to be very serious. In view of the seriousness of those offences, I considered that the majority of the Australian community would expect [the applicant's] visa to be cancelled and him to be removed from Australia. Overall I placed moderate weight on this consideration. … I accept that [the applicant] has considerably greater personal, physical and emotional ties to Australia than Vietnam and that he appears to have retained no links with Vietnam at this point in time. I have given considerable weight to this consideration. … I believe it is reasonable to expect that [the applicant's] relationship with his family members may be adversely affected if he were removed from Australia. However, I note that [the applicant] is now over 36 years of age, has a sister [who] resides in Italy and Uncles and Aunts who reside in Vietnam. I have given moderate weight to this consideration. … In deciding to exercise my discretion to cancel [the applicant's] visa, I took into account that there would be hardship to [the applicant] and his immediate family if he was to be removed from Australia, and that given [the applicant's] medical condition, it would be in his best interests to remain in Australia. In reaching my decision however, I concluded that the seriousness of [the applicant's] crimes, the disruption these crimes have caused others and my responsibility to protect the Australian community outweighed all other considerations referred to above. … (Emphasis added) the parties' submissions 29 In this Court, the applicant submitted that the Minister acted without jurisdiction in that officers of his Department denied him procedural fairness by failing to disclose the inclusion of certain adverse matters in the Minute prepared for the Minister's assistance and thereby denied him the opportunity to comment on them. At the hearing, the applicant abandoned a second ground - the failure to give reasons - since reasons were, as already noted, ultimately provided before the hearing. 30 There were, so the applicant said, two matters in the Minute that he would have addressed. They were the statements that it was open to the Minister to find that (1) he had "a low risk of recidivism" and (2) "the majority of the Australian community might expect that a person convicted of criminal offences such as those committed by [him] would have his visa cancelled and not be allowed to remain in Australia". 31 Counsel for the applicant contended that, in the present context, for natural justice purposes, there was: … a critical difference between a foreshadowed conclusion which leaves open the risk of recidivism and a conclusion which said there is no sensible, tangible, no realistic, no material risk. He submitted that, in this case, the statement in the Minute that it was open to the Minister to find that there was a low risk of recidivism was calculated "to operate adversely on the ultimate decision-maker, the Minister". He added: [I]f at the end of an investigation process like [the Department's] somebody comes to a provisional adverse view … on a critical factual matter, then [the applicant] ought to have an opportunity to answer that before it goes up to the Minister. 32 In written submissions, the applicant submitted that he would have wished to "argue very strongly … that the risk of recidivism should properly be regarded as non-existent". At the hearing, his counsel submitted that, where the Departmental officers espoused a view on the risk of recidivism that was adverse to the applicant, then, in the particular circumstances of the case, the applicant could reasonably have expected, and procedural fairness required, that he be so informed and be given a further opportunity to be heard on the matter. Amongst the relevant circumstances was the fact that, in considering this very issue, the AAT had previously held that the applicant was an acceptable risk to the community - an acceptable risk being, so the AAT said, at most a "very low risk of recidivism". Since the AAT's decision, the applicant had been released on parole and had received favourable reports from his parole supervisors. Bearing these matters in mind, counsel submitted that the assumption made by the applicant's lawyers - that the Departmental officers would accept that he was not a risk to the community - was a reasonable one. In communicating this assumption to the Department in January 2002 and in requesting that its officers notify them if they were mistaken, his lawyers were, so counsel submitted, reasonably seeking confirmation that the risk of recidivism did not still lie on the agenda of matters that might lead to cancellation of the applicant's visa. In the absence of any response from the Department, the applicant and his lawyers could reasonably believe that the risk of recidivism was not a matter of concern to the Departmental officers responsible for advising the Minister. There was, furthermore, apparently nothing in the applicant's interview in August 2002 that might have alerted him to the fact a risk of recidivism remained of concern. 33 The applicant's counsel submitted that had he, or his lawyers, known that the risk of recidivism remained on the decision-maker's agenda (as it did by virtue of the Minute), then the applicant would have expanded on the matters addressed by Mr Hien Tan Nguyen (of the Brosnan Centre) in his letter to Ms Marciniak of 21 November 2001 and lodged additional material. In support of this latter submission, the applicant relied on an affidavit affirmed by Hieu [sic] Tan Nguyen on 30 April 2003 and an affidavit sworn by Peter Norden SJ (who is the Policy Director at the Jesuit Social Services). Peter Norden SJ deposed, amongst other things, that he had over 25 years experience with criminal offenders (having formerly been the Senior Catholic Chaplin employed by the Victorian Department of Justice) and that he had known the applicant for over 15 years. It was his opinion that the applicant "poses an insignificant, if any, risk of recidivism" (emphasis added). 34 The second aspect of the applicant's procedural fairness case related to community expectations. The applicant submitted that had he been informed that the Departmental officers entertained the view that it was open to the Minister to find, on the material before him, that "the majority of the Australian community might expect that a person convicted of criminal offences such as those committed by [the applicant] would have his visa cancelled and would not be allowed to remain in Australia", then he would have wished to provide further evidence and submissions on the issue of supposed community expectations. In support of this part of his case, the applicant again relied on the affidavit of Peter Norden SJ, expressing the opinion that: A large portion of the Australian community would consider that someone in [the applicant's] circumstances, is now a member of the Australian community and, having served his sentence, ought not be deprived of the fellowship of the community; [and] The Australian community would not expect [the applicant's] visa to be cancelled. 35 He also relied on an affidavit, sworn on 16 April 2003, by Sr Brigid Arthur, a member of the Brigidine Religious Congregation and co-ordinator of the Brigidine Secondary School Council for 11 years. She also had 25 years' experience as a school principal and experience as a teacher. She said that: During the course of my work, I have come across many people across all walks of life and of all ages. I have spoken with many staff, parents, students and other people in the community. It is my opinion, whilst the Australian community expect that those who commit crime to be punished, they are very ready to accept that they should also be given a chance to make a new start. I do not believe that the Australian community in general discriminates between citizens and non-citizens. Those in the Australian community I speak with are both amazed and horrified that the sheer ceremony of naturalization could determine the entitlement to remain in our community. In my opinion, it is simply wrong to conclude that the Australian Community expect people who have committed serious offences to be deported. In my opinion, the Australian Community would consider each case on its own facts. 36 There were also affidavits sworn by Ann Morrow and John Marcus Power. Among other things, Ms Morrow was the Chief Executive Officer of the Victorian Ministry of Education between 1988 and 1991, chair of the Schools Council of the National Board of Employment, Education and Training and had established the Australian Technology Network's Women's Executive Development Program. She had been mayor of a suburban municipality in the 1970s and retained her interest in and contact with local government. She deposed that: Through my networks in the education and training policy fields, in public policy, and in local community activities … I interact with many diverse groups in the community each year. I have ongoing opportunities to discuss the issues that have emerged in relation to the public expectation of non-citizens convicted of serious crimes, and to receive feedback from a very wide range of people and interests. The feedback I have received is that it is unjust for people who have served their sentences to be further punished by way of exclusion from the Australian community whether it be by further imprisonment or deportation. The members of the Australian community whose views I know do not expect non-citizens to necessarily deserve deportation from Australia upon completion of their prison sentences. Instead, there is wide agreement that the offender's personal circumstances should be taken into account. Emeritus Professor Power, who had a distinguished academic career in political science, also espoused the opinion that the Australian community would not expect the automatic deportation of every non-citizen who committed a serious crime, but, rather, that each case would be judged on its own merits. 37 I note too that there was an affidavit by the applicant's sister stating that, if the applicant were released from detention, then he might reside with her. 38 In written submissions, the respondent's counsel contended that the Minute, which had been prepared for the Minister's assistance, "did no more than summarise the material considerations, refraining even from making a recommendation". He submitted that the Direction and the notice of 26 April 2001, informing the applicant that the cancellation of his visa was again under consideration, set out all the matters referred to in the Minute on which the Minister acted. There was, so he said, "no evidence of any factor being considered by the Minister without the Applicant having had an opportunity to address it". The respondent added: There is no suggestion of any deficiency in the hearing which was afforded to the Applicant at interviews by departmental officers. The material which was placed before the Minister included (inter alia) notes of the Applicant's interviews with officers of the Minister's Department (and all of the written material the Applicant and his advisers had submitted). There is no suggestion of any issue being considered by the Minister which the Applicant did not have an opportunity to address. In particular he was given the opportunity to comment on all matters included in the [Direction], which included the Risk of Recidivism and the Expectations of the Australian Community. The process, viewed as a whole, was fair. Counsel for the respondent elaborated on these matters at the hearing. The substance of his submissions was that the Departmental officers had given the applicant an opportunity to address all relevant issues and that the applicant had taken up this opportunity to do so.
the effect of s 474 of the act 39 The decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 permits the conclusion that, if jurisdictional error is established on the ground of denial of procedural fairness in respect of a decision that would otherwise be a "privative clause decision" within s 474 of the Act, then orders of the kind the applicant seeks may be made. See also Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, at 89 per Gleeson CJ, 91 and 109 per Gaudron and Gummow JJ, 130-131 per Kirby J, 143 per Hayne J; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 ("Lam"), at 512 per McHugh and Gummow JJ; NAEB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 25, at [4] per Kiefel, North and Allsop JJ; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74, at [31] per North, Merkel and Weinberg JJ; M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290, at 313-316 per Goldberg, Weinberg and Kenny JJ; and Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757, at [32] - [44] per French J. consideration 40 It is not in contest that the Minister is obliged to act in conformity with procedural fairness in exercising power under s 501(2): compare Lam, at 513 per McHugh and Gummow JJ and Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 497 ("Dagli") at [44] per Hill J. 41 Procedural fairness required that, before any decision was made, the Minister afford the applicant a fair opportunity to present information and argument against the cancellation of his visa. Precisely what constituted a fair opportunity depended on all the circumstances of the case, including the nature of the statutory power in question and the interests promoted by it, the interests of persons affected by the decision, and what was relevantly known by the decision-maker at the time the decision was made. Perhaps, too, conduct anterior to the decision, such as things said or done by the participants in the decision-making process, may have affected the requirements of procedural fairness: see Lam at 510 per Gleeson CJ, 513 per McHugh and Gummow JJ; Kioa v West (1985) 159 CLR 550 ("Kioa v West"), at 563 per Gibbs CJ, 584-585 per Mason J, 601 per Wilson J; 612-614 per Brennan J and 633 per Deane J; and South Australia v O'Shea (1987) 163 CLR 378, at 400 per Wilson and Toohey JJ. As McHugh and Gummow JJ said in Lam, at 513: [T]he particular requirements of compliance with the rules of natural justice will depend upon the circumstances. Different procedures may be required, even of the same repository of power, from one situation to the next, a point made by Aickin J in Heatley v Tasmanian Racing and Gaming Commission [(1977) 137 CLR 487 at 514]. Further, the expectations of a particular party as to the exercise of the power in question may be relevant to the way in which the repository of the power is to exercise it in the particular case. 42 As already noted, s 501(2) of the Act empowers the Minister to cancel a visa if the Minister reasonably suspects that the visa-holder does not pass the "character test" and the visa-holder does not satisfy the Minister that he or she in fact passes the "character test". The effect of par (a) of s 501(6) is that a person does not pass the "character test" if he or she has a "substantial criminal record", as defined in s 501(7). A person is deemed to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more: see par 501(7)(c). The applicant did not contend that the Minister erred in determining that the conditions in pars 501(2)(a) and (b) were met. 43 Since the requirements of procedural fairness are necessarily affected by the nature of the power conferred by s 501(2), then it must be borne in mind that, as Hill J observed in Dagli at [46], any decision made by the Minister pursuant to this provision is "of great importance to the person affected". Equally, it must be borne in mind that the power is conferred in order that the Minister can act in the public interest to protect of the Australian community. Under this provision, the legislature has entrusted to the Minister the responsibility for deciding whether the public interest should prevail over the private interest of a visa holder. Further, as Gleeson CJ and Gummow J noted in Minister for Immigration and Multicultural Affairs v Jia (2000) 205 CLR 507 ("Jia"), at 539: The powers given by ss 501 and 502 … enabled the Minister in effect to reverse the practical consequences of decisions of the [Administrative Appeal] Tribunal in the cases of the persons involved, even though no new facts or circumstances had arisen; and even though the Minister had been involved in the proceedings before the Tribunal. The statutory power conferred by s 501 is reposed in the Minister who is "a political official, a member of the Executive Government, who … has general accountability to the electorate and to Parliament … ": Jia, at 539 per Gleeson CJ and Gummow J. 44 In exercising statutory power in the nature of s 501(2), the authorities established that, generally speaking, procedural fairness requires that the person who is to be the subject of any decision be given an opportunity to: … rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. 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 provisional views to comment before making the decision in question. See Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, at 592 per Northrop, Miles and French JJ, drawing on Kioa v West, at 569 per Gibbs CJ, 587 per Mason J, 627-629 per Brennan J and 633-634 per Deane J. A visa holder, who is to be the subject of a decision under s 501(2), will not have a fair opportunity to present information and argument against the cancellation of his or her visa if he or she does not know the critical issues on which the decision is likely to depend or the nature of any significant adverse information touching those issues. 45 The applicant rightly accepts that it was open to the Minister to rely on the Minute which had been prepared for him. The Minute was, in substance, a summary of the circumstances that the Departmental officers considered relevant to the issues on which the decision was likely to turn. In relation to these issues, the Minute largely followed the Direction. The Minute also contained some evaluation of these circumstances, indicating what they could support by way of findings. 46 Procedural fairness did not require the decision-maker, through the Departmental officers or otherwise, to supply a copy of the Minute to the applicant. Although there was an obligation to inform him of the issues that it discussed and of any significant adverse material that was otherwise unknown to him, this did not require provision of the document itself. Procedural fairness is concerned with practical fairness: compare Lam, at 511 per Gleeson CJ. 47 Broadly speaking, in this case, the Departmental officers adopted a process that ensured that the applicant was informed of the issues upon which the Minister's decision would be likely to turn. That is, by virtue of the notice advising him that the cancellation of his visa was again under consideration and the provision of the Direction, the applicant was informed of the nature of the issues that would be relevant to the Minister's decision. 48 If (as I find) the applicant was afforded an ample opportunity (in interviews and by correspondence) to address these matters, then he clearly took advantage of the opportunity. In particular, I accept, as the respondent submitted, that the applicant knew that the issue of community expectations was likely to be important in the Minister's consideration of his case. So far as the Minister's delegate was concerned, the Direction stated that a primary consideration was "the expectations of the Australian community" and it was clear enough that this consideration would also be important in the Minister's decision-making. The applicant's lawyers plainly appreciated this fact when they addressed this consideration in their letters of October 2001 and January 2002. Both these letters accompanied the Minute, which noted the substance of the applicant's lawyers' submissions on the subject. 49 There was no reason why the material represented in this Court by the affidavits of Sr Brigid Arthur, Ann Morrow, John Marcus Power and Peter Norden SJ (in so far as he also commented on community expectations) could not have been lodged with the Department before the Minister made his decision. It was for the applicant to take advantage of the opportunity fairly offered him as he thought fit. In any case, there is, it seems to me, much force in the respondent's submission that this additional material in fact does no more than restate the submissions that had already been made on the subject of community expectations, albeit from the perspective of two educationalists, a professor of political science, and a person experienced in the rehabilitation of criminal offenders. 50 For the reasons outlined above, I would reject the applicant's submission that he was not accorded procedural fairness with respect to the issue of community expectations. 51 I also accept, as the respondent submitted, that the applicant knew that the risk of recidivism (as an aspect of community protection) was likely to be important in the Minister's consideration of his case. So far as the Minister's delegate was concerned, the Direction stated that a primary consideration was "the protection of the Australian community" and that the risk of recidivism was a factor relevant to this consideration. It was clear enough that this factor would also be important in the Minister's decision-making. The applicant's lawyers plainly appreciated this fact when they addressed the risk of recidivism in their letters of October 2001 and January 2002. In their October 2001 letter, they submitted that there was a negligible, if any, risk that the applicant would offend again. As already noted, this letter and other correspondence from the applicant's solicitors accompanied the Minute to the Minister. Further, Mr Hien Tan Nguyen's letter of 21 November 2001, which bore on the risk of recidivism, also accompanied the Minute. Finally, by his letter of 29 August 2002, the applicant himself affirmed that he would "not fail again". The Minute not only referred to this letter but also set out its contents, along with a number of other matters favourable to the applicant on this issue, including his record on parole. 52 As already noted, on this aspect of his case, counsel for the applicant relied on the applicant's solicitors' letter of January 2002, in support of the proposition that the Minister failed to act with procedural fairness in making his decision. This letter, it may be recalled, invited the Department to notify the solicitors if the Department did not "accept [the applicant] is not a risk to the Australian community", upon the basis that the Department had "decided" not to obtain any professional reports on the applicant and had not raised any relevant issues with the solicitors or the applicant. The submission made by the applicant's counsel was that, in the absence of any response from the Department, the applicant and his lawyers might reasonably believe that the risk of recidivism was not a matter of concern to the Departmental officers responsible for advising the Minister and that there was no need to submit any further material on the issue. Upon reflection, it does not seem to me that, in the circumstances, this letter can be successfully relied upon to establish a breach of procedural fairness on the Minister's (or his Department's) part. 53 First, the AAT's reasons for decision provide very little support for the applicant's submission that, in the particular circumstances of the case, he could reasonably have expected, and procedural fairness required, that he be informed if the Departmental officers considered (as they apparently did) that it was open to the Minister to find that the applicant posed "a low risk of recidivism". In its reasons, the AAT drew attention to the fact that only a "very low risk of recidivism" was an acceptable risk to the Australian community. The Tribunal's finding that the applicant was an acceptable risk is consistent with a finding that he was a "very low risk". The Tribunal did not in fact say that he was a "negligible" or "insignificant" risk. It has also to be borne in mind that the Minister was unconstrained by the Tribunal's findings. 54 Bearing these matters in mind, the Minute did not contain any adverse conclusion that was not obviously open on the material known to the applicant. Indeed, it is unclear whether the statement that it was open to the Minister to find that the applicant was "at a low risk of recidivism" was adverse to the applicant in any relevant way. The matters to which the Minute referred before making this statement were very largely favourable to the applicant. If the reference to "a low risk of recidivism" is read in context (as it must) it does not seem to me that the Minute was appreciably less favourable to the applicant's interests than the finding of the AAT. Although it may be a matter of degree, I doubt that, when read as a whole, the Minute was relevantly adverse to the applicant on this point. 55 Let it be assumed, however, that the Minute was adverse to the applicant as the applicant submits and that the Department's failure to respond to the applicant's solicitors' letter of January 2002 led the applicant's solicitors to expect that the risk of recidivism was not a matter of any concern to the Departmental officers responsible for advising the Minister. Nonetheless, it does not seem to me that the applicant can successfully rely on the doctrine of reasonable expectation. 56 In Lam, McHugh and Gummow JJ (at 527) approached the matter of reasonable expectation by inquiring (1) whether, by the Department's failure (in that case, to act as it had said it would), "there was a failure to observe an expectation reasonable attributable to the applicant" and (2) "if so, whether that failure gave rise to a decision flawed for denial of natural justice". Pursuing this approach, I would answer 'no' to both questions. 57 The solicitors' January 2002 letter contained a number of obvious misconceptions. They preclude a finding that the Department's failure to respond to their letter gave rise to any relevant expectation reasonably attributable to the applicant. First, the Department was under no obligation to obtain professional reports and applicant's solicitors were not entitled to draw any conclusion from its failure to do so. Secondly, since the decision-maker was the Minister, his Departmental officers were required to place before the Minister whatever relevant information and submissions the applicant provided in support of his interests. The applicant could not, however, transfer to the Department his responsibility for presenting his case to his best advantage by requesting them to tell him whether or not they accepted his submissions. In any event, the acceptance or rejection of his case was a matter properly for the decision-maker when the decision came to be made. 58 Even if a relevant reasonable expectation could be attributed to the applicant, the failure to meet it did not give rise to a denial of procedural fairness. There is in fact no evidence that the applicant was deprived of an opportunity to address the issue of recidivism as a result of the Department's failure to respond to the January 2002 letter. On the contrary, in his letter of 29 August 2002, the applicant specifically addressed the Department on this very matter, in apparent appreciation of the fact that the risk of recidivism would figure in the Minister's consideration of his case. There was no relevant prejudice to the applicant to support a case of denial of procedural fairness: compare Lam, at 511 per Gleeson CJ, 529 per Hayne J and 539 per Callinan J. 59 The applicant had a fair opportunity to present all the information he wished in support of his submission that he did not pose any risk of recidivism. Had he so wished, he might himself have obtained psychiatric or psychological reports (though the Department did not). The evidence does not show that the material set out in the affidavit of Peter Norden SJ could not have been lodged with the Department before the Minister made his decision. 60 In any case, there is much force in the respondent's submission that the additional material to which the applicant referred at the hearing (the affidavits of Peter Norden SJ and Mr Nguyen) did little more than restate the submissions that had already been made on the applicant's behalf on the risk of recidivism. I have already referred to the letter of Hien Tan Nguyen, which accompanied the Minute to the Minister. Mr Nguyen's affidavit added little more. The applicant's solicitors submitted that the risk of recidivism was negligible, and this was supported by the applicant's own letter. The opinion of Peter Norden SJ that the risk, if any, was insignificant was not materially different, although it was the opinion of a person whom the Minister might have thought had considerable relevant experience. Having said this, I note, however, that, in his reasons for his decision, the Minister stated (and it must be accepted) that he placed "relatively little weight" on the applicant's risk of recidivism. summary 61 In summary, it was up to the applicant to place before the Department such information and submissions as he thought fit. He is not entitled to complain that he would have done better if only the Departmental officers had told him whether they accepted or rejected his submissions. He was entitled to support his interests by such information and material as he thought appropriate, but if the authorities rejected the case he made because they did not accept what he put forward, he has no complaint in law: cf Kioa v West, at 587 per Mason J; and Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 389, at [28] per Finn J. It follows that I reject the applicant's submission that, by Department's failure to respond to his solicitors' letter of January 2002, he was denied a fair opportunity to present his case to the Minister. 62 It is clear that the matter to which the Minister gave most weight in reaching his decision was the seriousness of the criminal conduct on the applicant's part, although the Minister also took into account and gave weight to the hardship that the applicant and his family would be likely to suffer as a consequence of the decision to cancel the applicant's visa. In exercising its jurisdiction in a case such as this, the Court cannot enquire into the merits of the decision under review. If no error of law is shown, then the Court's task is done. 63 For these reasons, I would reject the applicant's submission that, on the two grounds he advanced, he was denied procedural fairness in connection with the Minister's decision to cancel his visa. I would dismiss the application for constitutional writs, and injunctive and declaratory relief. 64 I note, however, that, whilst the respondent has succeeded in the result, he did not provide the applicant with his written reasons in conformity with s 501G of the Act until shortly before the date fixed for hearing. On this account, I would afford the parties an opportunity to be heard on the question of costs. I certify that the preceding sixty four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.
Associate: Dated: 5 September 2003 Counsel for the Applicant: Mr C Maxwell QC and Mr A Krohn
Solicitor for the Respondent: Australian Government Solicitor
M238/2002
The Honourable Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs
(2003) 195 ALR 24
(2000) 204 CLR 82
(2003) 195 ALR 502
(2003) 199 ALR 290
(1985) 159 CLR 550
(1987) 163 CLR 378
(2000) 205 CLR 507
(1994) 49 FCR 576
(1977) 137 CLR 487