Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths

8 Although the issues paper stated that the respondent did not have any children and that the question of the best interests of the children did not apply, the issue of the interests of the unborn child was dealt with under a separate sub-heading, namely that of the interests of the de facto spouse. The issues paper pointed out that the spouse had been interviewed and had indicated that she would join the respondent in New Zealand if he were removed from Australia. There was reference to the hardship which the child would suffer if his or her parents have to live in New Zealand rather than in Australia. 9 The issues paper concluded with a statement by the Minister that he had considered all relevant matters including an assessment of the character test as defined by s 501(6) of the Act. Three possible alternative decisions were ruled out and the Minister stated that he reasonably suspected that the respondent did not pass the character test, that he had not satisfied the Minister that he did pass the test and that the Minister had decided to exercise his discretion under s 501(2) of the Act to cancel the visa. 10 On 16 September 2002, the respondent sought judicial review of the Minister's decision in the Federal Court under s 39B of the Judiciary Act 1903 (Cth). Shortly afterward the matter was transferred to the Federal Magistrate's Court. No point was taken before us that the Magistrate did not have power to grant prerogative relief. 11 The Federal Magistrate's reasons for decision disclose four separate but related bases for his decision to quash the Minister's decision to cancel the visa. These may be stated shortly. 12 The first was that the Minister had given no reasons for his decision to cancel the visa. The effect of what the learned Magistrate said at [106] of his reasons was that since s 501G(1)(e) required the Minister to state reasons for the decision, a failure to do so constituted a breach of the rules of natural justice which amounted to jurisdictional error. 13 The second was that the Minister had "not considered properly the interests of the unborn child in the present case": see [108] of the Magistrate's decision. 14 The third was that in the absence of reasons, the decision to cancel the respondent's visa involved an absurd outcome when the circumstances were that he had resided in Australia since he was eight years of age, all his family except one aunt lived in Australia, including his pregnant de facto wife, he had apparently become rehabilitated since he had served his last custodial sentence and he had never previously been warned about the risk of his visa being cancelled. The Federal Magistrate found that in these circumstances the decision was so unreasonable as to attract the principle of Wednesbury unreasonableness; see [109] to [111] of the decision. 15 The fourth was that the manner in which the issues paper dealt with the question of the respondent's unborn child - not under the heading of the 'Best Interests of the Children' but under the heading of 'Other Considerations' - amounted to such a failure to understand the claim as to involve a constructive failure to exercise jurisdiction; see [118] of the decision. The Federal Magistrate also made reference to the decisions of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273and Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 195 ALR 502, but it was not suggested that his decision ultimately turned on any question of legitimate expectation. 16 Only the first and third grounds identified by the learned Magistrate were relied upon in the respondent's oral submissions to support the Federal Magistrate's decision. One issue referred to by the Magistrate as going to the question of Wednesbury unreasonableness was the failure of the Minister to give any warning to the respondent prior to his most recent conviction that a continuation of his criminal conduct would enliven the Minister's power to cancel the visa. This issue was not pursued in oral submissions but we will deal with it below. 17 The substance of the appellant's submissions can be stated quite simply. Senior counsel submitted that the application in the present proceedings was on all fours with the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 201 ALR 327 ("Palme") and that, accordingly, the Federal Magistrate's decision was contrary to that of the High Court, albeit that the High Court's decision was handed down approximately four months after the decision in the present proceeding. He submitted that, to the extent that the procedural unfairness and the Wednesbury unreasonableness ground were based on a failure of the Minister to deliver reasons, that finding was contrary to what the majority of the Court said in Palme. 18 In our view, the present proceedings are indistinguishable from Palme. True it is that it may be said that the offence in Palme was objectively more serious than the offences committed here. But once it is conceded that the character test is not met, the characterisation of the seriousness of the conduct and the question whether the Minister should cancel the visa is a matter for the Minister, in the exercise of his of her discretion. Of course, before arriving at the decision the Minister must accord procedural fairness to the person whose visa is under consideration. 19 The respondent's counsel submitted that here the Minister had purported to give reasons in the issues paper which were "ineffective" as reasons because they did not satisfy s 501G(1)(e) of the Act. It was therefore submitted that this in some way distinguished the matter from Palme in which, the respondent contended, no claim was made that the issues paper constituted the reasons for the Minister's decision. According to the respondent, the argument in Palme was simply that the failure to give reasons was a breach of the requirements of natural justice, whereas in this case the giving of "ineffective reasons" was both a breach of those requirements and permitted the Court to look into the reasonableness of the decision. We do not consider such a distinction to be sustainable. 20 The Federal Magistrate's decision proceeded on the basis that the issues paper did not constitute a statement of reasons as required by s 501G(1)(e). The Minister's counsel did not challenge that finding on appeal and the respondent sought to uphold the Magistrate's finding (although at no stage did the respondent seek any reasons). The respondent cannot at one and the same time rely upon the Minister's failure to give reasons and upon the Minister's giving of "ineffective reasons". Either the Minister gave reasons, which can be challenged, or the Minister failed to give reasons and can be compelled (in appropriate proceedings for that purpose) to fulfil his statutory duty to do so. The appeal, therefore, turns on the respondent's submission that the absence of reasons in this case permitted the learned Magistrate to make the finding he did. 21 The High Court's decision in Palme makes it plain that the submission cannot be accepted. As Gleeson CJ, Gummow and Heydon JJ said at [48], a visa cancellation decision may be reviewed for jurisdictional error and the error may be found in what is disclosed in the reasons provided under s 501G(1)(e). But as their Honours also observed at [48], what is not provided for is for a person whose visa has been cancelled to refrain from seeking to compel the Minister to produce reasons by the issue of a writ of mandamus and also to seek to impeach the visa cancellation decision itself as a consequence of the failure to discharge the duty to provide reasons. 22 McHugh J's observations at [55] and [57] were to precisely the same effect. 23 So too in Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 ("Tuncok"), a decision of Hely J delivered after the judgment of the High Court in Palme, his Honour rejected the submission that a failure to give reasons is a breach of natural justice which vitiates the decision. His Honour stated at [54] that he disagreed with the contrary view expressed by the learned Federal Magistrate in the present case. 24 It also follows from what the High Court said in Palme that the Federal Magistrate's finding, that in the absence of reasons there was an absurd outcome which attracted the principle of Wednesbury unreasonableness, cannot be supported. 25 The respondent argued that the Wednesbury principle applied here nonetheless because the case against cancellation of the visa as outlined in the issues paper was so strong that a contrary view was manifestly unreasonable. 26 It may be accepted that the case against cancellation was, objectively speaking, strong. But it does not of course follow that the conclusion that the visa should be cancelled was not reasonably open. The respondent's submission to the contrary likewise cannot stand consistently with what the High Court said in Palme. 27 The position here equates with that considered by Gleeson CJ, Gummow and Heydon JJ at [30]. In this case, the Minister had before him relevant material presented in the issues paper in an apparently balanced manner. The degree of hardship to the respondent was specifically dealt with at paras [53] and [54] of the issues paper and the hardship to the respondent's then unborn child was dealt with at paras [71] and [72]. As Gleeson CJ, Gummow and Heydon JJ said at [30], there is no weight in the complaint that in acting on the submission to cancel the visa, the Minister reached a decision which was so unreasonable as to attract the Wednesbury doctrine. 28 Moreover, to adapt what their Honours said in the circumstances of Palme at [39], given the detail supplied in the issues paper and the Minister's statement which, as here, was not challenged, that he had considered all relevant matters, it cannot be said that the Minister's decision was tainted. 29 McHugh J's observations on this issue at [62] were to the same effect. His Honour said that the matters mentioned in the issues paper might have caused the Minister to refuse to cancel the visa but they were not so overpowering that the decision was unreasonable. 30 Also, as Hely J said in Tuncok at [70], in this case too, the view that the visa should not be cancelled was not the only view which was rationally available. His Honour stated at [70] that he did not agree with the contrary conclusion on Wednesbury unreasonableness reached by the Federal Magistrate in the present case. 31 The issues paper referred at para [46] to the fact that the appellant had not been given a previous warning that his visa would be liable to cancellation. The Minister's decision to cancel the visa notwithstanding the absence of a warning about continued criminal conduct cannot attract the operation of the Wednesbury principle. 32 Although the respondent did not seek to support the second and fourth bases on which the Federal Magistrate's decision turned in his oral submissions, we will deal with them briefly. Both of them rested on the proposition that the failure to deal with the interests of the unborn child under the heading that dealt specifically with the 'Best Interests of the Children' in the issues paper gave rise to jurisdictional error. But the short answer to this proposition is that this issue was dealt with elsewhere in the issues paper, in particular at paras [71] and [72] under the sub-heading dealing with the interests of the de facto spouse and there is, in any case, no reason to suppose that it was not considered by the Minister. 33 It follows that the appeal should be allowed. The orders of the Court will be as set out in paragraph 3 of the Notice of Appeal. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Black CJ, Dowsett and Jacobson JJ.

Counsel for the Appellant: A Cavanough QC and W Mosley

Solicitor for the Appellant: Australian Government Solicitor