Minister for Immigration & Multicultural & Indigenous Affairs v Ball

Decision on section 501(7)(d) 47 In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 ('Drake') the Full Court considered s 12 of the Act as then in force. That section referred to a conviction for an offence 'for which he has been sentenced to imprisonment for one year or longer' (emphasis added) and provided that the Minister may 'upon expiration of, or during, any term of imprisonment served' (emphasis added) deport the person. In that case, the sentence imposed was for 12 months accompanied by a direction that the plaintiff be released after three months on entering into a recognizance. To Bowen CJ and Deane J (at 586) it was clear that the sentence referred to in s 12 was the sentence of imprisonment imposed and not the term of imprisonment actually served. Their Honours held that the fact that 'a person … was … not required to serve the full term of imprisonment imposed would not affect the fact that he had been sentenced to imprisonment for one year' for the purposes of s 12 of the Act. The remissions were merely 'the result of the context in which the sentence imposed operates'. Their Honours also observed (at 588) that the powers conferred on the Minister by the section should be strictly construed and noted that the magistrate in that case clearly intended that the plaintiff should serve only three months in prison. However, their Honours concluded that such intention did not alter the fact that the appropriate sentence was determined to be a term of imprisonment of one year. 48 In Te v Minister for Immigration and Ethnic Affairs (1999) 88 FCR 264 ('Te'), the Full Court followed Drake. In so doing, the Court reiterated that, in considering s 201(c) of the Act, the words 'the offence is an offence for which the person was sentenced … to imprisonment … for a period of not less than one year' refers to the sentence of imprisonment imposed and not the term of imprisonment actually served. The language was said to direct attention to the quality of the offence, as reflected in the sentence imposed and focuses on the sentence determined to be appropriate punishment for the offence. In that case, the County Court had imposed a suspended sentence of imprisonment which meant that the offence was one for which the appellant was sentenced to the term of the unsuspended sentence. 49 In Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 ('Sciascia'),Burchett and Lee JJ construed s 20 of the Act, in the form that then applied and, in particular s 20(1)(d)(iii) which referred to 'a person who had been convicted of 2 or more crimes and sentenced to imprisonment for a period totalling at least one year'. The question was whether: (a) the section was intended to operate to embrace a deemed sentence of imprisonment, for a period of at least one year obtained by adding together unconnected sentences of imprisonment, imposed upon conviction for individually minor offences over a period of time; or (b) it was intended to cover sentences of imprisonment for several offences that were made consecutive, to form a period of imprisonment totalling at least one year. Their Honours were careful to adhere to the principle that sections such as s 20 were to be construed narrowly and so as strictly to confine their operation. They looked to the history of the legislation to conclude that it was not intended to permit the adding together of quite unconnected minor sentences. At 374, their Honours said: 'Of course, the language is not clear. The expression "has been convicted" is simply not limited, nor extended, by any words such as, to give it plainly the one meaning, "one some occasion", or, to give it plainly the other, "on one or more occasions". While it could refer to the case we have mentioned, it could also refer to a series of minor convictions spread over many years. In that case, a person, who had never, at any particular time in his life, been guilty of any serious offence or series of offences, might have become retroactively a prohibited immigrant by a statutory process of adding together unconnected sentences of imprisonment imposed for widely separated minor offences, some perhaps even committed in adolescence'. 50 Their Honours pointed to a further ambiguity in the language arising from the failure to express a distinction between cumulative and concurrent sentences. They said (at 375): 'Yet the slightest reflection will show that an express reference was at least very desirable, in order to avoid uncertainty. Has a person, who has been sentenced to two sentences of six months of imprisonment, to be served concurrently, been "sentenced to imprisonment for periods aggregating not less than one year"? In our opinion, that would be a strange conclusion. The theory of the criminal law is that several changes which arise out of the one enterprise may be so connected that they should be regarded as relating to one incident: see R v Melville (1956) 73 WN (NSW) 579. Convictions upon charges of this kind will result in concurrent sentences to be served by one period of imprisonment, and the length of that period will be appropriate to the total criminality involved. A deemed addition of a number of concurrent sentences would not only be unfair; it would be irrational, because in conflict with the basis on which the total period of imprisonment was fixed. Plainly, however, if these considerations had been perceived, so serious a question would have been expressly resolved, and not left to be settled outside the Parliament by the sometimes uncertain processes of construction.' 51 The distinction between different sentences and different terms of imprisonment was also dealt with by the High Court in Winsor v Boaden (1953) 90 CLR 345 ('Winsor'). The section under consideration was s 80 of the Government Railways Act 1912-1851 (N.S.W.). The section was in terms of 'sentenced to imprisonment for any term of or exceeding six months'. Dixon CJ, delivering the judgment of the Court, was considering whether two concurrent sentences of three months and a sentence of three months to commence at the expiration of the other two sentences, equalled or exceeded a term of imprisonment of six months. His Honour emphasised that a section which destroys accrued rights is not to be given a wider operation than the ordinary meaning of the words conveys unless the context or subject matter demands it. The Court held that the sentence to imprisonment was not for any term of or exceeding six months. A distinction was drawn between "sentence" connoting a judicial judgment or pronouncement fixing a term of imprisonment and the period fixed by the judgment as punishment, the term of imprisonment. 52 The emphasis on the term of imprisonment imposed, so that concurrent terms are not added together, reflects the approach taken by the primary judge. 53 The second reading speech of the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill (No. 2) 1998 (Cth) ('the Bill') in the House of Representatives stated that the Bill sought to establish clear benchmarks for criminal behaviour that would lead to failure of the character test where 'the length of several sentences aggregates to two years or more'. In the Senate, the second reading speech referred to 'certain levels of criminal sentences'. It was also said that the Bill sought 'to establish clear benchmarks for criminal behaviour that would automatically lead to a non-citizen failing the character test'. Circumstances included a situation 'where the length of several sentences aggregates to two years or more'. 54 The Explanatory Memorandum to the Bill (at [53]) refers to 'a total sentence of 2 years or more where the person has been sentenced to 2 or more terms of imprisonment. It is intended that sentences be "totalled" irrespective of the time and place at which each sentence was imposed'. 55 It is of interest that the words of Burchett and Lee JJ in Sciascia: 'on one or more occasions' were introduced into the amended section. It cannot be said that the other ambiguity, in respect of concurrent sentences, was clearly resolved by the amendment although it had been clearly adverted to by their Honours. The second reading speech in the Senate did, however, make reference to several sentences being aggregated, which seems to draw on the language of Sciascia but neither the Act nor that speech take up their Honours' invitation to make clear reference to sentences to be served concurrently. It would have been easy to have done so. 56 The question of concurrent terms, s 501(7) and the character test was also recently considered by French J in Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 ('Hicks') which is on appeal to a Full Court. His Honour observed (at [59]) that the Act itself provides no explicit guidance in its text or context and the legislative history offers little illumination as to whether the condition for the existence of a substantial criminal record set out in s 501(7)(d) is satisfied by the imposition of two or more terms of imprisonment to be served concurrently where, if served consecutively, they would amount to two years or more. 57 French J also observed, correctly in our view, that the observations of Burchett and Lee JJ on concurrent sentences in Sciascia were obiter and assumed a single coherent theory of concurrent sentencing as applying in respect of a plurality of offences arising out of one or connected criminal incidents. That may not be the case and was not here. His Honour was referred to the primary judge's decision in this case and expressed the view that the construction there adopted was the preferred one. 58 A submission was made before French J on behalf of the Minister that was not made before us. Counsel in Hicks relied on the definition of "behaviour concern non-citizen" in s 5 of the Act and express provision therein for concurrent terms, excluding them from the sum of periods of imprisonment. The submission was that express exclusion of concurrent sentences in s 5 meant that they were included in s 501(7)(d). His Honour noted that this would lead to 'a tension between the criteria for the grant of visas for New Zealand citizens [by reason of s 32 of the Act] and their cancellation for failure to pass the character test". The respondent is a New Zealand citizen. This would mean that she would be entitled to a special category visa and would not be excluded by reason of her concurrent sentences under s 32 (2) but, on entry into the country, could then have her visa cancelled under s 501 by reason of s 501(7)(d). We see this absurd result as militating against the construction advanced by the appellant in this case. 59 In our view, the construction of s 501(7)(d) in respect of concurrent sentences is not clear. In Sciascia the clear opinion was expressed that concurrent sentences were not included. While that opinion was obiter, it is persuasive and there was an opportunity to amend the Act after Sciascia to make it clear that their Honours' view was not to apply if that had been the intention of the legislature. 60 Section 20(1)(d)(iii) was subsequently amended by the Migration Amendment Bill (No 2) 1992 (Cth) ('the 1992 Bill'), according to the second reading speech: ' in response to a Federal Court decision which has limited the power of the Commonwealth to decide who may enter and stay in Australia with regard to persons with criminal records. The intention of the Government has always been that a person who has committed a series of unrelated crimes which have resulted in that person being sentenced, in total, to a period of 12 months or more imprisonment should be categorised as a person to whom section 20 applies. The court decision, however, requires that this provision be interpreted very narrowly. It would apply only to a person in circumstances where there is a court order that several sentences of imprisonment are to be served consecutively so as to make up one continuous period of detention of at least one year. The amendment proposed to section 20 will make this longstanding policy of the Government clear in the legislation and overcome the narrow interpretation of the court.' 61 The Explanatory Memorandum to the 1992 Bill stated that the amendments were, inter alia, to 'clarify' certain provisions including the circumstances in which non-citizens become illegal entrants. Clause 7 of the Explanatory Memorandum states: 'This clause clarifies the criminal convictions that are relevant for the purpose of subparagraph (1)(d)(iii) of section 20 of the Principal Act. The Federal Court held in a recent decision that unconnected sentences of imprisonment could not be added together unless they resulted in one unbroken period of imprisonment. This amendment makes it clear that unconnected sentences of imprisonment can be aggregated even though the periods of imprisonment are not consecutive or relate to separate incidents of criminal activity. The operation of this clause is affected by transitional provisions in clause 17 of this Act.' The amendment itself was, relevantly, as follows: '20. (1) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if: … (d) on any occasion when the person entered Australia, the person was: … (iii) a person who had been convicted of 2 or more crimes and sentenced to imprisonment for periods that add up to at least one year if: (A) any period concurrent with part of a longer period is disregarded; and (B) any periods not disregarded that are concurrent with each other are treated as one period; whether or not: (C) the crimes were of the same kind; or (D) the crimes were committed at the same time; or (E) the convictions were at the same time; or (F) the sentencings were at the same time; or (G) the periods were consecutive'. 62 The long standing policy referred to in the second reading speech made no mention of concurrent sentences. However, the amendment to the legislation did. The new s 20(1)(d)(iii)(A) and (B) made express reference to concurrent periods. Paragraph (A) was clear. Concurrent periods which were shorter than a further concurrent period of imprisonment were to be disregarded and therefore not totalled. Paragraph (B) was not clear. On the one view what was meant was that any periods not disregarded, for example the 25 convictions for 11 months, were to be treated as one period and therefore not totalled. On another view, each of the 11 month periods was to be treated as one period but could be totalled because the person had been convicted of 2 or more crimes and sentenced to imprisonment for 25 separate periods of 11 months that therefore added up to more than one year within the opening words of sub-paragraph (iii). 63 What then was the intention of the legislature when it amended the legislation yet again in s 501(7)(d)? One possibility is that it thought it had already made clear a "long standing policy" that concurrent sentences were to be totalled in the limited circumstances provided for in s 20(1)(d)(iii) and that the new s 501(7)(d) merely reflected that policy. Another possibility is that it thought that the long standing policy was that concurrent sentences were not to be totalled and that this was reflected in s 501(7)(d). A third possibility is that it thought that s 20(1)(d)(iii) was not clear and that it required further clarification. But the difficulty with each such possibility is that s 501(7)(d) is not clear. 64 In our view the following observations of French J in Hicks (at [65]) are apt and are not affected by the fact that His Honour was apparently, in argument, not referred to the 1992 amendments: 'In my opinion, although the position is not without doubt, the language of s 501(7)(d) does not readily lend itself to the totalling of concurrent terms of imprisonment. The issue is one of which the Parliament was well aware at the time that s 501(7)(d) was enacted, having regard to the joint judgment of Burchett and Lee JJ in Sciascia and what fell from Martin J in Pearson [Pearson v Minister for Immigration, Local Government and Ethnic Affairs (1992)106 FLR 162]. It would have been a straightforward matter to have addressed that issue expressly in the definition of `substantial criminal record´ in subs 501(7)(d). In my opinion therefore, the preferable construction is that which counts only terms of imprisonment which are other than concurrent.' 65 We can see some force in the submission that what is to be totalled are the sentences imposed, rather than to look to the way in which the numerous sentences are to be served. In this regard, the appellant relied on R H McL v The Queen (2000) 203 CLR 452 as authority for the proposition that a sentence should be fixed appropriate to each individual offence and then the aggregate of those sentences viewed and made wholly or partly concurrent in accordance with the "totality principle". However, that case does not assist in ascertaining the true effect of the section in question and whether what must be 2 or more years is the total of the sentences imposed or the term of imprisonment imposed in respect of all of those sentences. In either case, it could be said that the quality of the offending conduct was being addressed. Counsel for the appellant also relied on the definition of "sentence" in s 501(12): 'sentence includes any form of determination of the punishment for an offence'. This, in our view, recognises that sentences may be imposed other than by way of terms of imprisonment and reinforces the conclusion that s 501(7)(d) is not directed to sentences but to the terms of imprisonment. 66 Counsel for the appellant submitted that the process for consideration, as supported by Drake, is in two stages. The first is the imposition of a sentence for a term of imprisonment for an offence. It is this stage, it was submitted, to which s 501(7)(c) and (d) are directed. In the present case, there have been sentences for terms of imprisonment which total more than 2 years. There is then a second stage and that is the decision on the part of the judge to fix the starting date for each of those terms to be the same. 67 There was not in the present case evidence of a specified two stage process where sentence in respect of each offence was pronounced and then a direction given that they be served concurrently. This does not matter because it is clear that the section is intended to cover circumstances beyond the procedures recognised in individual States or, indeed, Australian criminal law. To that extent, we differ from the view taken by the primary judge that Parliament must be taken to have considered the practice of concurrent sentencing. Counsel for the appellant recognised that the meaning of the provision could not change depending on local sentencing principles but then drew on such principles, for example the totality principle, to support his case which relied on the Australian practice of cumulative and concurrent sentencing. The section cannot be of such limited application. 68 In the present case, there was no evidence other than the charge sheet. The terms were made apparent simply by an examination of the commencement and length of each term of imprisonment imposed. There was a sentence of imprisonment for each offence and a term of imprisonment imposed. In each of 24 cases, it was the same term of 2 months and in each of 25 cases, it was the same term of 11 months. All the terms commenced on the same day. Whether the total of the terms is 11 months or 13 months, it is below the 2 years that has been defined as the minimum for a substantial criminal record. 69 Bearing in mind the injunction in Winsor, where the section is not clear, we are of the view that the construction to be preferred is the one that does not derogate from the respondent's rights. 70 It follows that there has not been demonstrated error by the primary judge in finding that the Minister applied an erroneous construction of s 501(7)(d) when he formed the suspicion required by s 501(2)(a) that the respondent did not pass the character test. This ground of appeal fails.

natural justice 71 There are two aspects of the obligation to accord natural justice relevant to this appeal. The first involves the construction of s 503A of the Act and the second aspect was raised in the notice of contention.

Natural justice and section 503A 72 It was not in dispute before us and would seem not to have been in dispute before the primary judge that, ordinarily, the respondent would have been entitled to know the information upon which the Minister was basing the determination of whether the respondent did or did not pass the character test. In the present case, that information was not forwarded to the respondent as part of the Notice. The Minister claimed that the information was information that attracted the protection of s 503A, being information that was communicated by a gazetted agency (the New Zealand Police) on condition that it be treated as confidential information. 73 The view of the primary judge (at [28]) was that, in order to accord natural justice, the decision-maker should consider 'what it is that attracts to critically relevant information the character of protected information and whether it can reasonably be divested of that character and supplied to the visa holder'. 74 His Honour held (at [29]) that the Minister should have taken reasonable steps to bring to the respondent's attention the substance of the material obtained from the New Zealand Police under the stipulation that 'this information should not be released without police consent'. His Honour was able to suggest two such steps: (1) to obtain the consent of the New Zealand Police to the provision of the information to the respondent; and (2) to obtain extracts from the register of the Dunedin Court at which the sentences were pronounced. 75 There is no real dispute that the information was, within the meaning of the Act, protected information. There is also no dispute that, were it not protected information, natural justice would have required that it be provided to the respondent. Whether the respondent was denied natural justice turns on the application of s 503A of the Act. If that section applies to prevent such provision, the rules of procedural fairness are overridden by the Act (Evans v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 203 ALR 320('Evans')). Evans was handed down after the decision of the primary judge. 76 Section 503A of the Act relevantly provided: (1) If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C: (a) the officer must not divulge or communicate the information to another person, except where: (i) the other person is the Minister or an authorised migration officer; and (ii) the information is divulged or communicated for the purposes of the exercise of power under section 501, 501A, 501B or 501C; and (b) an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where: (i) the other person is the Minister or an authorised migration officer; and (ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C. Note: Authorised migration officer and gazetted agency are defined by subsection (9). (2) If: (a) information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C; or (b) information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b); then: (c) the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and (d) if the information was communicated to an authorised migration officer - the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person.' … (6) This section has effect despite anything in: (a) any other provision of this Act (other than sections 503B and 503C); and (b) any law (whether written or unwritten) of a State or a Territory. 77 The Minister does not contend that she is an authorised migration officer as referred to in the section. It is not in dispute that the information was communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential. The question is whether the Minister, who is not an authorised migration officer, is precluded from divulging or communicating that information to another person. 78 In Evans, the Court discussed in some detail the purposes of s 503A. There the questions for determination concerned the specification and definition of a "gazetted agency". Evans was concerned with the content of the notice in which the Minister specified a gazetted agency. The Court was divided on certain aspects in that regard but not on the more general purposes of the section. Both Gray and Kenny JJ expressed concerns as to the construction of the section. Because of the effect of the section on the deprivation of rights to procedural fairness and natural justice, their Honours noted that the Court should look carefully at the provision and prefer a narrow construction of the provision to a broad one. Downes J did not discuss the general background and effect of the section. 79 Gray J observed (at [13]) that the purpose of s 503A 'is to remove what would otherwise be an entitlement to natural justice, or procedural fairness, for a person who is subject to the application of the character test in relation to an application for a visa or the consideration of the cancellation of an existing visa'. Kenny J noted (at [50]) that the publication of a notice in conformity with paragraph (b) of the definition of "gazetted agency" prevents a person whose interests are likely to be affected by the relevant exercise of power from obtaining access to information relevant to the exercise of such power and added '[w]hilst the duty to accord procedural fairness (or natural justice) is not, for this reason alone, entirely excluded from the decision-making process in a case to which s 503A applies, the requirements of procedural fairness are diminished to the extent that they are inconsistent with the operation of s 503A'. The result is that affected persons will '[a]lmost inevitably' be deprived of the opportunity to respond to the subject matter of the information. 80 It is also apparent, however, that the construction of s 503A (1) and (2) did not specifically arise in Evans, nor was it raised before the primary judge. It did arise in Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51 ('Wong'), in relation to a decision of the Minister made pursuant to s 501(3) of the Act. Lindgren J concluded that the Minister, not being "an authorised migration officer" or "a Commonwealth officer", was not prohibited from divulging information received in confidence from a gazetted agency and that this was the intention of the legislature. Having held that s 503A does not prohibit the Minister from giving to the visa holder the information so received, his Honour held that s 501C (3)(a)(ii) required her to do so. 81 In the context of s 503A, we can see no basis for the finding that procedural fairness required the Minister positively to take any reasonable steps to divest the information of the protection accorded to it by that section. His Honour did not explain the basis for his conclusion, nor how the principle of positive obligation that he applied would extend beyond the facts of this case or to situations where the Court itself could think of ways in which such steps could be taken. 82 There is a tension between the strict wording of the section and the scheme it sets out. Clearly, it is envisaged that the information is communicated by a gazetted agency to an authorised migration officer. That officer is prohibited from divulging or communicating the information to another person except where that other person is an authorised migration officer or the Minister and the information is divulged or communicated for the purposes of, inter alia, s 501. Where the decision under s 501 is made by a delegate of the Minister who is an authorised migration officer, the express prohibition has the effect of depriving the person whose visa is under consideration of the right to know that information. 83 Section 503A(1) deals with the receipt of the information and the passing of the information to the decision maker. Section 503A(2) deals with the information in the hands of the decision maker. Neither the Minister nor the officer can be required to divulge or communicate the information. The authorised migration officer must not give the information in evidence. The Minister may give the information in evidence. That is provided for in s 503A(3). 84 The missing explicit prohibition is on the Minister. There is no express prohibition on the Minister choosing to divulge or communicate the information. The question is whether, if the Minister does not divulge that information to the person the subject of the s 501 decision, that constitutes denial of the right to natural justice or procedural fairness that is not excluded by s 503A. 85 Two questions immediately arise. First, if the Minister cannot be required to divulge or communicate the information to any other person, does that extend to the requirement to accord procedural fairness? If it does not, such a failure to divulge or communicate the information vitiates the decision where made by the Minister but not a decision made by a delegate of the Minister where that delegate is an authorised migration officer. 86 Secondly, s 503A(6) provides that the section has effect despite any other provision of the Act and written or unwritten law of a State or a Territory. Does this affect the apparent scheme of the section, as described in Evans, to deny to the visa holder his or her rights to procedural fairness? No question arose in the appeal as to whether s 503A(6)(b) included the law (written or unwritten) of the Commonwealth or whether there was any relevant difference. We shall proceed on the basis that the common law of the States and Territories are, relevantly, the same as the law of the Commonwealth. 87 This line of argument seems not to have been put to Lindgren J in Wong and seems not have been a major issue in those proceedings. 88 It is not in dispute before us that, but for s 503A, the failure to provide particulars of the information, results in a denial of procedural fairness that vitiates the decision. Put another way, does the section impose a sanction upon the Minister's refusal to disclose the information by setting aside any decision that she made, in circumstances where that sanction would not operate if the Minister delegated the decision to an authorised migration officer? This would not necessarily assist a visa holder, who would still not be entitled to the information because by delegation of the decision to revoke a visa the confidentiality of the protected information would be maintained, as the delegate will be prohibited to disclose. This would, however, force or require the Minister to delegate the decision in those circumstances. 89 This clearly undermines the purpose of the whole section. 90 We accept that the section must be construed bearing in mind the fact that it purports to take away fundamental rights to procedural fairness. We also note that, by reason of s 501(5), the rules of natural justice are said not to apply to the decision of the Minister pursuant to s 501(3). 91 There is no limitation in s 503A(2)(c). If the Minister were required to choose between divulging the information and avoiding the decision, there would be a direct or indirect requirement to divulge or communicate the information in order to make the decision. That clearly was not the intention of the legislature in promulgating s 503A and the scheme there provided. Indeed, it is inconsistent with the operation of it. Regard may be had to the practical context in which the decision maker must consider whether to exercise the power (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 ('Miah') at [31] per Gleeson CJ and Hayne J). The scheme, as pointed out by Gray J in Evans (at [13]) was to remove the entitlement to natural justice or procedural fairness in respect of specific, defined information for a person who is subject to the application of the character test in relation to the consideration of the cancellation of an existing visa, or in relation to the application for a visa. The obligation to afford common law natural justice or procedural fairness is controlled by the statutory framework but exclusion must be made clear in direct terms Miah at [43] per Gleeson CJ and Hayne J; at [90] per Gaudron J; at [126]-[128] per McHugh J; at [181] per Kirby J; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [30] and [37] per Gleeson CJ). In respect of s 503A, in our opinion, that intention is clear. 92 In any event, the appellant did not receive the Notice. The Minister submits that, if reasonable steps were taken to give the Notice to the respondent (the finding of the primary judge the subject of the notice of contention and as to which see below), there was no practical unfairness if the content of those documents did not include the particulars of information received from the gazetted agency. The primary judge seems to have concluded that the respondent was still deprived of the opportunity to advance a case because she was not given the opportunity to know the material adverse to her on which the Minister might have relied because she was taken to have received the Notice by force of regulation 2.55(7). 93 There seems to us to be some force in the appellant's submission in the circumstances of this case. As the respondent did not in fact receive the Notice, she would not have received the protected information even if it had been included with the Notice. Accordingly, there was no practical injustice that arose from a failure so to include it (Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [37]-[38]). 94 The fact that it was her own criminal record that was the subject of the confidential information was also raised before us but, in circumstances where that does not seem to have been raised before the primary judge and there was no evidence as to whether any practical unfairness arose from the fact that the respondent was not provided with her record or of her own knowledge in that regard, we will not deal further with this aspect. 95 It follows that the primary judge was in error in his conclusion that the appellant was obliged to provide the protected information to the respondent.

The notice of contention 96 The factual matters were set out by the primary judge. The Department sent the Notice to the respondent by registered post on 29 January 2003. The Notice was sent to the Kalgoorlie address supplied by the respondent when she appeared in the Kalgoorlie Court of Petty Sessions on 10 January 2003 on a charge of providing a false bail undertaking. It was also the address which had been supplied by the respondent to the Australian Taxation Office in March 2002. 97 In fact, the respondent moved to Melbourne on 18 January 2003. As a result, she did not receive the Notice which Australia Post, after three attempts to deliver it or have it collected by her, returned "unclaimed" to the Department on or about 11 March 2003. 98 The issues paper, placed before the Minister, noted that the respondent had been notified by mail but had not responded to the invitation to submit any comment which she believed relevant. However, the issues paper, presumably because it had been prepared before the Notice was returned unclaimed, did not advert to that fact. 99 The primary judge applied Osborne v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 416 ('Osborne') and held that, by force of regulation 2.55(7), the respondent was taken to have received the Notice on 5 February 2003. The respondent contends that his Honour's reasoning in coming to this conclusion was erroneous. 100 Regulation 2.55 of the Migration Regulations 1994 ('the Regulations') provides, so far as is relevant: '(1) This regulation applies to: (a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and … (3) For a document mentioned in paragraph (1) (a) or (c), the Minister must give the document in one of the following ways: (a) by handing it to the person personally; (b) by handing it to another person who: (i) is at the person's last residential or business address known to he Minister; and (ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and (iii) appears to be at least 16 years of age; (c) by dating it, and then dispatching it: (i) within 3 working days (in the place of dispatch) of the date of the document; and (ii) by prepaid post or by other prepaid means; to the person's last residential address, business address or post box address known to the Minister; … (7) If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or (b) in any other case - 21 days after the date of the document.' 101 The respondent contends that the cancellation of the visa in circumstances where she had not in fact received the Notice and where the Minister knew that fact, there was a denial of procedural fairness. The respondent contends for an obligation on the part of the Minister, as a condition precedent to the exercise of the power to cancel the visa, to bring the substance of the material relevant to the exercise of the discretion to the attention of the respondent. The respondent asserts that it is not to the point that the Minister had taken reasonable steps to notify Ms Ball of the proposal to cancel her visa, nor that the notification is in accordance with the requirements of the Act. The respondent submits that such steps are not sufficient to satisfy the requirements of procedural fairness. 102 The respondent also submits that compliance with the Regulations does not govern the obligation in s 501 of the Act to provide the information. 103 In Osborne, French J said at [19] and [20]: '19 Unlike the provisions of ss 129 and 131 considered in Wang, there is no express provision in the Act requiring notice to be given to a visa holder as a condition of the exercise of the Minister's power to cancel the visa under s 501. Nevertheless, prior notice to the visa holder is to be implied as a necessary condition of the power for it cannot be exercised unless: "The person does not satisfy the Minister that the person passes the character test." It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister's intention to cancel. Some process of notification is therefore contemplated even thought [sic] the Act does not set it out. Indeed the regulations seem to assume as much. 20 The implied condition of notification is not absolute. It could not be. For otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires only that reasonable steps be taken to notify the visa holder. To send a notice of intended cancellation to his last known address is a reasonable step. When that last known address is the address of a close relative of the visa holder, in this case his mother, and with whom he had expressed an intention to resume living, then it is plainly a reasonable process. The aid of the regulations is not required to determine what is reasonable in these circumstances. They do not in terms condition the effect of exercise of the power under s 501. They establish a mechanism for notification which appears, in a formal sense, to have been followed in this case.' 104 It is clear that French J held that the Act, not the Regulations, requires that only reasonable steps need be taken. Such a test was also applied by RD Nicholson J in George v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 38 at [30]. The Regulations establish a mechanism for notification which had been followed in Osborne and have been found, as a matter of fact, to have been followed in the present case. Even if it is accepted that, by the time the Minister made the decision, she was aware that the Notice had been returned unclaimed, the taking of those reasonable steps in circumstances where no alternative address for the respondent was known was sufficient. Otherwise, a person deliberately evading service could deprive the Minister of the power to cancel the visa. In the present case, the respondent continued to give the Kalgoorlie address after the Notice was returned unclaimed and the decision was made. 105 Counsel for the respondent did, ultimately, accept the test of reasonable steps as set out in Osborne. Counsel then submitted that, after the Department or the Minister knew that the Notice was returned unclaimed, the fact that no further steps were taken was insufficient. Counsel was, however, unable to point to any steps that reasonably and practically could have been taken in the circumstances prior to the cancellation decision and submitted that the mere fact that no further steps were taken meant that reasonable steps were not taken. This ignores the fact that the steps that had been taken that resulted in the letter being returned unclaimed were reasonable. 106 No error on the part of the primary judge has been demonstrated in this part of his Honour's reasoning.

Conclusion 107 The appellant has not succeeded in the appeal as to the construction of s 501(7)(d). Accordingly, the necessary jurisdictional fact was not established and the appeal must be dismissed. As the appellant was successful on the construction of s 503A and on the notice of contention, the appropriate order for costs is that the appellant pay fifty percent of the respondent's costs of the appeal. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jacobson & Bennett.

Associate: Dated: 21 April 2004 Counsel for the Appellant: S Donaghue

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: P G Nash QC with D A Perkins