Miller v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 Mr Mark Garry Miller has applied for the judicial review of a decision made personally by the then Minister for Immigration and Citizenship (Minister), the Honourable Chris Bowen MP on 10 December 2012. By that decision, the Minister decided to set aside an earlier decision of the Administrative Appeals Tribunal not to cancel Mr Miller's visa, and instead, to cancel his visa. 2 The Minister's power to make such a decision personally is to be found in s 501A(2) of the Migration Act 1958 (Cth) (Migration Act). That subsection provides that the Minister may set aside the Administrative Appeals Tribunal decision and, materially, 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); and (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. 3 Because these reasons for judgment are being delivered in the presence of Mr Miller and his family, it is as well to commence by recalling the nature of a judicial review proceeding of the kind which Mr Miller has initiated and the role which a court plays as a consequence of the initiation of such a proceeding. In the United States of America, that role was stated by Chief Justice Marshall in the famous case Marbury v Madison (1803) 5 US 137 at 177: It is emphatically the province and duty of the judicial department to say what the law is. 4 Recalling that particular pronouncement, and in a passage which has become celebrated in Australian law for its succinct summary of the role of a court in respect of a judicial review application, Brennan J observed in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 - 36: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. In context, what that means is that the merits of whether or not to cancel Mr Miller's visa were, at one stage, a matter for decision by the Administrative Appeals Tribunal. Thereafter, if the Minister chose, he was empowered personally to make his own evaluative judgment under s 501A(2) as a matter of discretion and if the criteria set out in that subsection were met. 5 It was common ground in this case, and rightly so, that the making of a decision by the Minister was attended by an obligation to give natural justice or, as is termed in more modern times, afford procedural fairness to Mr Miller. This case exemplifies the observation made by Mason J in Kioa v West (1985) 159 CLR 550 at 585 (Kioa v West) that: The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? 6 As they came to be pressed in argument on behalf of Mr Miller, the grounds of review focussed upon that very issue namely, whether or not in the particular circumstances of the making of the decision by the Minister in respect of Mr Miller, the Minister had truly done what the law required him to do, which was to afford Mr Miller procedural fairness. The grounds were expressed in this way: 1 The Respondent made a jurisdictional error by failing to provide and identify to the Applicant, matters relevant [to] the composition and meaning of National Interest, according to which criteria, a determination "Not in the National Interest" would be made by the respondent. 2 The Respondent made a jurisdictional error by deciding that the threshold requirement of National Interest (s 501A(2) 3(e) of the Migration Act) - had been satisfied meet [sic] for reasons that: (a) Failing to state either prior to or at the time of making his decision what was the relevant consideration comprising National Interest and thereby failing to afford Natural Justice to the Applicant. 7 In Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417 (Gbojueh), to which counsel for Mr Miller helpfully drew my attention, Bromberg J at [43] offers a succinct summary of authority touching upon the national interest criterion found in s 501A(2). His Honour there states: 43 The authorities which have considered s 501A(2) (and in a similar context the reference to national interest in s 501(3)), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister: Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at [89] (French, O'Loughlin and Whitlam JJ); Huynh at [74] (Kiefel and Bennett JJ); Tewao v Minister for Immigration and Citizenship (2011) 125 ALD 57 at [12] and [32] (Katzman J); Maurangi v Bowen [2012] FCA 15 at [70] (Lander J); and see also Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [61] (Gleeson CJ and Gummow J); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 418 - 419 (Gaudron J), 502 - 503 (Kirby J). Bromberg J then observed at [44]: The exercise calls for a broad evaluative judgment. It calls for the Minister's satisfaction in relation to a power that may only be exercised personally by the Minister: s 501A(5). Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope. All of that, strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2). 8 I respectfully agree with his Honour's observation as to the section providing for the making of a broad evaluative judgment. That judgment is of a kind which requires, materially, a state of satisfaction that cancellation is in the national interest. In respect of a provision providing for satisfaction as to a particular criterion by an administrative decision-maker, Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Eshetu) offered in his judgment at [130] and following a critical analysis of the ramifications of such a statutory construct for judicial review. In particular, his Honour drew attention [at 136] to an observation earlier made by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118 - 119 (Buck v Bavone) where his Honour stated: In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. To this Gummow J added at [137] in Eshetu: This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way. 9 Satisfaction as to what is or is not in the national interest is a paradigm by example of the kind of broad touchstone depending on matters of opinion or taste referred to by Gibbs J in Buck v Bavone and by Gummow J in Eshetu. Perhaps recognising this, the ground of review focused not upon whether it was open to the Minister reasonably to be satisfied as to whether or not cancellation of Mr Miller's visa was in the national interest. Instead, as I have indicated, the challenge made, and the related asserted jurisdictional error, was a denial of procedural fairness. 10 The difficulty in the case is that the Minister did endeavour to give Mr Miller procedural fairness. This is not a case where there was no endeavour at all. Rather, the question is whether what the Minister undertook in that regard before making his decision did or did not in the particular circumstances of this case afford Mr Miller procedural fairness? 11 What the Minister did was to cause a member of the staff of his department, whose surname is lost to posterity, because of an apparent practice adopted within that department to use nothing other than a Christian or given name when undertaking the public business of the Commonwealth, to send a letter to Mr Miller. By her letter, "Georgia", on behalf of the Australian Government's Department of Immigration and Citizenship, and, necessarily, on behalf of the Minister, directed a letter of 21 September 2012 to Mr Miller in which reference was made to the Minister's intention to consider whether to set aside the decision of the Tribunal and to cancel his visa under s 501A(2). Under the heading, "Information to be considered", it was stated: When considering whether to cancel your visa under subsection 501A(2), the Minister will take into account information that has previously been provided to you, your criminal record, the AAT's decision and information provided by you in response to the notice of intention to consider cancellation sent to you on 20 August 2011. Underneath that was detailed in a series of dot points particular documents containing particular information concerning Mr Miller. These included transcripts of various court proceedings as well as criminal history documents. The letter continued: You may wish to submit information about whether you passed the character test or provide comment on, or information relating to, whether the Minister should exercise his discretion to cancel your visa and on the Minister's consideration of whether cancellation of your visa would be in the national interest. 12 The adequacy of this type of pre-decisional correspondence for procedural fairness purposes is not entirely without authority. In Maurangi v Bowen (2012) 200 FCR 191 at [59] and [60] (Maurangi), and in respect of a letter in very similar terms to that under present consideration, Lander J observed: [59] In my opinion the notice that was given to the applicant adequately identified the issues that the Minister needed to address in considering whether to exercise the power under s 501A(2) of the Act. The applicant was made aware that his substantial criminal record would be the matter considered by the Minister in determining whether the applicant's visa should be cancelled. [60] The applicant was aware that his substantial criminal record was such that he could not pass the character test, and that he could not satisfy the Minister that he could pass the character test. He was made aware on the notice that if that were the case, which clearly it was, the matter that the Minister would consider was whether the Minister was satisfied that the cancellation of the applicant's visa was in the national interest. In my opinion the applicant was made aware of the matters under consideration. 13 It was submitted on behalf of the Minister that I should follow these observations and find that the letter in question here adequately afforded Mr Miller an opportunity to be heard in respect of the matters critical to the decision which the Minister proposed to make. As against that, it was submitted on behalf of Mr Miller that the letter really did nothing more than highlight particular statutory criteria, detail certain documents and then leave it up to Mr Miller to work out what within those documents might prove to be the critical fact upon which any decision adverse to him might turn. 14 It was not part of that submission that Mr Miller was entitled to anything in the nature of a running commentary by the Minister as to his thought processes prior to the reaching, ultimately, of a conclusion as to whether the criteria for the exercise of the discretionary power has been engaged and whether the discretion should be exercised adversely to Mr Miller. Nor was it any part of the submission on behalf of Mr Miller that the case was one where it was not possible, reasonably, to suspect that he did not meet the character test or, for that matter, that it was not possible to be satisfied that he did not meet the character test. Rather as refined in the course of submissions, the question became very much one as to whether there was an obligation on the part of the Minister to highlight a particular critical aspect of what would, in the circumstances of this case, potentially prove adversely decisive in relation to satisfaction as to the national interest. 15 As was recognised by counsel for each of the parties, the case was not one akin to Gbojueh where third party information adverse to and personally relating to a visa holder was considered by the Minister without affording the visa holder an opportunity to make submissions in respect of it. In that regard, Gbojueh is nothing more and nothing less than an example of that type of case described by Mason J in Kioa v West where procedural fairness does require an opportunity to comment upon matters personal to a person if a decision-maker proposes to rely upon them, see Kioa v West at p 587. 16 In terms of principle, the position is, in my opinion, correctly stated in the following passage from Dr Lucy J, The Laws of Australia (The Law Book Company Limited, 2010) at [2.5.605] (The Laws of Australia): A series of cases have explored the extent to which procedural fairness requires immigration authorities to direct attention to the issues raised by an application. It has been held that before a decision-maker rejects an assertion of historical fact in circumstances where the existence of that facts is of importance and its rejection is not reasonably to be expected, the decision-maker must provide an opportunity to furnish further evidentiary material. Procedural fairness was denied where it was not drawn to the attention of an applicant that the critical factor was absence of corroboration of the applicant's claims. Persons facing deportation have been held to have been denied procedural fairness where an inference of lack of good faith was formed the basis of the decision, but that issue was not put to the person and could not have been anticipated in the circumstances of the case. Furthermore, if an unfavourable criticism formed by the decision-maker, or expressed by a departmental officer to the decision-maker, upon the conduct of the applicant is not an obviously natural response to the circumstances which have evoked it, it should be disclosed. 17 What follows, then, is that the essence of this case is whether the highlighting by the Minister's departmental officer of the criminal record of Mr Miller to him was enough, in itself. In other words, is this a case where, to highlight that criminal record, given its very nature, was to engender an obviously natural response that the nature of that criminal record in terms of any propensity to reoffend and attitude to rehabilitation was a critical consideration in any evaluation of what was or was not in the national interest. 18 As to this, very fine questions of judgment can be entailed. This is nowhere better exemplified than in one of the cases cited by the editors of the Laws of Australia in respect of the passage which I have just quoted that approval, namely, Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100. That was a refugee visa case not, as here, a case where having regard to a character test and satisfaction in respect of national interest, a discretion fell to be exercised as to whether to cancel a visa. A question nonetheless arose in that case as to whether there had been observance of a procedural fairness obligation. 19 The question arose in this way, taking the background from the summary in the head note. The appellant was detained in custody as a prohibited non-citizen. He was an Iranian citizen. Whilst in custody, he wrote to the Iranian Embassy in Canberra which expressed opposition to the current Iranian Government. He applied to be recognised as a refugee under the Migration Act. That application was rejected, inter alia, because the decision maker concluded that, in writing to the Iranian Embassy, the appellant had not acted in good faith. This conclusion was never put to the appellant. 20 At first instance, Lockhart J concluded that there had been no denial of procedural fairness by the failure to put that conclusion. An appeal was allowed, but only by majority. Keely J dissented. In his Honour's dissent, he stated at p 101: In my opinion procedural fairness did not require the decision-maker to disclose to the appellant his mental processes before reaching his decision. In F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 Lord Diplock said (at 369): "… the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental process before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished." In Kioa v West at 587, Mason J said: The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he has put forward. 21 It was that particular authority that persuaded Keely J that procedural fairness did not require a decision-maker to give an applicant an opportunity to comment upon a view which a decision maker had provisionally taken of part of the material submitted to him: see especially p 103. Jenkinson J took a different view. He agreed with Keely J that procedural fairness did not require that an administrative decision maker's evaluative conclusions had to be communicated to an applicant so the considerations influencing the decision maker's mind adversely to the applicant's interest may be reviewed before the decision was made: see p 108. He added, though, this: But there are observations, which may be thought to constitute a gloss on the general rule, that favour a requirement that the applicant have his mind directed to the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it: see Kioa v West (1985) 159 CLR 550 at 587, per Mason J; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 517, per Burchett J; Broussand v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481-482. There are other observations, which may be thought to constitute another gloss on the general rule, that an unfavourable animadversion, by the decision-maker or expressed by departmental officer to the decision-maker, upon the conduct of an applicant, or even if another person whose interest in a decision favourable to the applicant is to be weighed by the decision-maker, should be disclosed to the applicant so that he may respond, if the animadversion is not an obviously natural response to the circumstances which have evoked it: see Minister for Immigration, Local Government and Ethnic Affairs v Kumar (unreported, Federal Court, Davies, Foster and Hill JJ, 3 May 1990), Kioa v West (supra) (at 573, 588 and 634), where two members of the High Court treated such an animadversion, in par 21 of a submission to the decision-maker, as discoverable to the applicants. 22 In the circumstances of that particular case, Jenkinson J considered that the conclusion as to an absence of good faith was not an obviously natural response and should have been drawn to the attention of the visa applicant. The remaining member of the Full Court, Gummow J, also concluded that there had been a denial of procedural fairness. 23 The result of that case was that two judges of this Court, one in the original jurisdiction and one in dissent in the Full Court, considered that there was no procedural fairness obligation which had been breached and, two, the majority in the Full Court and the decisive two, therefore, considered that there had been a breach of a procedural fairness obligation. Hence, my earlier observation that fine questions indeed can be involved in cases such as the present. 24 It may, with respect, well be that Lander J had in mind the obviously natural response point when reaching a conclusion in Maurangi that there was no denial of procedural fairness. Without that particular qualification, I would not, with respect, be in agreement with what his Honour said in that case as to an observance of procedural fairness obligations. 25 This case, therefore, in my view, comes down to a narrow, hard question but one which, in my view, admits of a clear answer in the circumstances. That question is, that whatever particularity was required in the circumstances of this case to be given to Mr Miller, as to what may prove to be a decisive consideration adverse to him when the Minister came to weigh up what was or was not in the national interest, was sufficiently given to him by the highlighting of his criminal record. It was, in my view, an obviously natural response that this would then be a critical consideration. That being the case, the alleged jurisdictional error constituted by an alleged failure to observe procedural fairness is not made out. 26 It is important to emphasise that it is no part of the Court's judgment as to the legality of the decision, as to whether the merits of this case did or did not warrant cancellation of a visa. The Administrative Appeals Tribunal made a very careful and close scrutiny, in the exercise of the jurisdiction consigned to it, of the merits of the case and found, in the end, in favour of Mr Miller. The Minister, who had a singular and lonely duty to perform, reached a different conclusion on the merits, taking into account, as he was obliged, where he was satisfied the national interest lay. It would be an impertinence on my part to offer any criticism of the Minister's decision on the merits. 27 What I am obliged to do, having regard to the conclusion which I have reached in relation to the legality of the decision, is to dismiss the application. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.