Naidu v Minister for Immigration & Multicultural & Indigenous Affairs

Judgment (5 paragraphs)

[1]

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from the judgment of a Federal Magistrate dismissing an application for review of a decision by the respondent to cancel the applicant's sub-class 833 Permanent Residence visa. That decision was made on 14 December 2002 pursuant to s 501(2) of the Migration Act 1958 ('the Act') on the basis of the appellant's criminal history. 2 The appellant is a citizen of Fiji who arrived in Australia with his family at the age of 13 on 15 January 1992. He initially entered Australia on a Class 660 tourist visa. He then joined his father Mr John Ganga Naidu's application for a protection visa. On 30 June 1999 the appellant applied for a permanent sub-class 833 - Change in Circumstances (Residence) visa. This visa was granted on 16 November 1999. The appellant has not left Australia since his arrival on 15 January 1992. 3 On 23 March 2001, the appellant was convicted of one count of assault with intention to rob armed with offensive weapon and two counts of robbery armed with offensive weapon. There was evidence that drugs were a contributing factor to the crime. According to the sentencing judge, the appellant and an unnamed accomplice attacked three teenage boys, one of whom was a Japanese exchange student. 4 The appellant was sentenced by the District Court to a term of three years imprisonment with a non-parole period of one year. He was released from gaol on parole on 17 July 2001. While serving parole the appellant obtained employment as a foam extrusion operator at Thermotec Pty Ltd from 8 July 2002 until 1 November 2002 when his position was made redundant. 5 On 21 August 2002 the Department of Immigration and Multicultural and Indigenous Affairs ('DIMIA') sent a letter to the appellant advising him of the respondent's intention to consider cancelling his visa. The letter stated that: 'It has come to the attention of the Department that this visa may be liable for cancellation under s 501 of the Migration Act 1958 (the Act). The relevant grounds are: · Subparagraph 501(6)(a) - Substantial Criminal History · Subparagraph 501(6)(c)(i) - Past and present criminal conduct I have attached the full text of s 501 for your information. . . . Before the Minister considers whether to cancel your visa under subsection 501(2), you are provided with an opportunity to comment. Matters to be taken into account include the following: · Your criminal history. A copy is attached for your information. · The Judge's comments. In reaching a decision whether to cancel the visa the Minister will have regard to the matters noted above and that attached Minister's Direction No 21 titled "Direction under Section 499 - Visa Refusal and Cancellation under Section 501 Migration Act 1958".' [Original emphasis] 6 The appellant was provided with a copy of his criminal record, a copy of the Minister's Direction No. 21 entitled 'Direction under Section 499 - Visa Refusal and Cancellation under Section 501 Migration Act 1958' ('the Direction') and a blank questionnaire ('the Questionnaire'). The purpose of the Questionnaire was to allow the appellant the opportunity to provide comment in support of his case. He was not provided with a copy of the Judge's comments referred to therein. On the basis of the submissions made to this Court, the reference in the letter to 'The Judge's comments' means those comments made by the sentencing judge in the District Court in relation to the appellant's crimes on 23 March 2001, some 17 months prior to the respondent's letter advising the appellant of the respondent's intention to consider cancelling his visa. 7 The Direction provided consists of two parts. Part 1 provides directions on the application of the character test. If the non-citizen does not pass the character test, decision makers are to exercise the discretion to consider whether to refuse or cancel a visa, taking into account primary and other considerations. Part 2 provides directions on what these considerations are and the weight to be given to them. 8 Paragraph 1.7 of the Direction states that: 'Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case including evidence of rehabilitation and good conduct.' 9 The letter advised the appellant that the Minister would be personally making the decision whether to cancel the appellant's visa under s 501(2) of the Act and that as a consequence the appellant would not be entitled to have that decision reviewed by the Administrative Appeals Tribunal. 10 Section 501 of the Act deals with the cancellation of a visa on 'character' grounds. Section 501(2) provides that the Minister may cancel a visa if (a) the Minister reasonably suspects that the person to whom the visa was granted does not pass the 'character test'; and (b) the person does not satisfy the Minister that the person passes that test. 11 The 'character test' is defined by s 501(6) which provides that a person does not pass that test if, inter alia, having regard to the person's past and present criminal conduct, the person is not of good character (s 501(6)(c)(i)), or the person has a 'substantial criminal record' (s 501(6)(a)), as defined by s 501(7), which provides that a person has such a record if, inter alia, the person has been sentenced to a term of imprisonment of twelve months or more (s 501(7)(c)). 12 Upon receipt of the letter, the appellant secured the assistance of a migration agent, Mr Viji Brightus. Mr Brightus faxed a letter to the DIMIA on 10 September 2002 to advise it that he was the appellant's authorised representative and attached Mr Naidu's receipt confirmation dated 3 September 2002. Mr Brightus also requested, and was granted, a two-week extension of time in which to gather the necessary documents in relation to the appellant's case. Mr Brightus then sent a letter on behalf of the appellant to the DIMIA on 24 September 2002. In that letter, the appellant relied expressly on 1.7 of Part 1 of the Direction emphasising that a decision‑maker must take into account all the relevant circumstances of a particular case. 13 Mr Brightus's letter drew the Minister's attention to the particular circumstances surrounding the appellant's case. The letter referred to the fact that the appellant's parents had separated a couple of years after the family arrived in Australia. The letter also stated that the appellant's younger brother was 'assaulted brutally at a suburban railway station' and that the assault 'left him with a range of physical problems and including inability to concentrate, frustration and depression'. Mr Brightus claimed, on behalf of the appellant that 'this incident added to the family's already strained relationship due to the nature of their status in Australia'. Mr Brightus then went on to say: '… Vijendra just like any young person brought up in a chaotic environment got into bad company and cases which lead to him being imprisoned. The good thing is that since the last time he was released on Parole he has kept himself out of all the mischief's (sic). He has been working with Thermotec Australia Pty Ltd and earns more than $1000 after tax. Now he stays with his family and is supporting his mother financially. Forcing the applicant to leave the country would bring about undue hardship and irreparable prejudice to the three Australian Residents.' 14 The completed Questionnaire, declarations from the appellant's mother and sister, certain school documents and employer references were enclosed with the letter for the Minister's reference. In the completed Questionnaire, the appellant describes his offence: 'They charged me with assult [sic] with intend [sic] to rob. I was at the train station. I pleaded not guilty they played the vedeo [sic] and found me guilty. I had a cigaratte [sic] lighter in the shape of a gun. This got me into trouble.' 15 As the appellant has a substantial criminal record as defined by s 501(7) referred to above and as he does not pass the character test as defined in s 501(6), the only issue before the respondent was whether or not to exercise his discretion to cancel the appellant's visa. 16 The respondent's staff provided the respondent with a document entitled 'Issues for consideration of Possible Cancellation of Permanent Residence Visa Under s 501(2) of the Migration Act 1958' ('the Issues Paper'). The Issues Paper is essentially a briefing paper of materials deemed relevant to the appellant's case. The Issues Paper recited the appellant's criminal history and also addressed the question of those factors relevant to the exercise of the discretion. A copy of the appellant's criminal history and sentence administration printout, the appellant's response to the Questionnaire, the appellant's probation and parole report dated 20 November 2002 (including references from his employer) and the sentencing judge's comments were annexed to the Issues Paper. 17 Paragraph [10] of the Issues Paper included the following statement: 'In making a decision on this case it is open to you to be guided by the factors set out in the Direction. However, in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors.' 18 Under the heading 'Primary Considerations' the Minister was directed to consider the 'Protection of the Australian Community … (a) seriousness and nature of the conduct'. Paragraphs 2.6 and 2.7 of the Direction were extracted at paragraphs [12] and [15] of the Issues Paper. Paragraph 2.6 provides, in the relevant part: 'It is the Government's view that the following are examples of offences which are considered by the Government to be very serious: (a) …

Grounds of appeal to the Full Court 30 Although the appellant argued before the federal magistrate that the Minister's decision was affected by jurisdictional error because he had been denied procedural fairness, he did not raise squarely the issue which forms the basis of the appeal to this Court. 31 The appellant filed a Notice of Appeal in this Court against the decision of the federal magistrate on 26 March 2004. A proposed amended Notice of Appeal was filed on 12 May 2004. The proposed amended notice of appeal stated: 'That his Honour erred in failing to find that the decision of the respondent of 14 December 2002 to cancel the appellant's class 833 visa involved a denial of procedural fairness, in that the respondent relied, to the detriment of the appellant, upon comments, made by a judge sentencing the appellant in circumstances where the respondent did not: (a) provide the appellant with a copy of the judge's comments; or (b) identify to the appellant the substance of the judge's comments that the respondent proposed to, and did, rely upon.' 32 It was agreed that this ground of appeal had not been argued before the federal magistrate and the appellant sought leave to amend his appeal. The grant of leave was opposed on behalf of the respondent relying on H v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1348, a case in which the various interests to be weighed on such an application were identified. The prospects of success on the appeal need to be considered, together with any potential prejudice to the respondent, to determine whether it is expedient in the interests of justice to grant the leave sought. 33 It was not disputed that the respondent was obliged to act with procedural fairness when undertaking his tasks under s 510(2). The critical issue was whether what was done in the present case discharged the respondent's obligation to accord procedural fairness. 34 The appellant's counsel submitted that the respondent should have notified the appellant that a comment of the sentencing judge namely, that the victims of the crimes for which he went to prison were 'young people' would be held against the appellant. It was argued this was because not to do so denied the appellant an opportunity of making submissions to advance his case by reference to matters relevant to the seriousness of the crimes by reference to the youth of the victims. 35 The respondent's counsel submitted that the proposed amended ground of appeal had no substance essentially because the sentencing comments were mentioned to the appellant and neither he nor his advisers requested a copy of those comments. It was argued that the appellant was sufficiently placed on notice of the potential for consideration of (i) the comments of the sentencing judge; and (ii) the age of his victims: reliance was placed upon Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 at 36-39 ('Tuncok') and Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 77 ALJR 1829 at [24] ('Palme'). 36 In our opinion, Part 2 of the Direction is particularly relevant to the proposed notice of appeal. Part 2 sets out the considerations which are relevant when a non‑citizen does not pass the character test and where the issue, as here, is whether discretion should be exercised to permit the non‑citizen to remain in Australia. 37 The relevant primary considerations identified in paragraph 2.3 of the Direction are: '(a) the protection of the Australian community, and members of the community; (c) the expectations of the Australian community; (d) . . .' Paragraph 2.4 recites: 'The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.' Paragraph 26 identifies 'crimes against children' as 'very serious'. In elaborating it states: 'due to their vulnerability as victims and potential victims, crimes against children take on special significance, especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children.' Paragraph 27 which was repeated in the Issues Paper identifies as 'especially repugnant to the whole community', 'crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated.)' 38 The Direction emphasises the very serious nature of crimes of violence against children and defenceless people by reference to a range of serious crimes of which 'armed robbery (including robbery involving the use of imitation weapons)' is one. Extremely serious offences at the worst end of the range of offences against children, which are specified in the Direction, include sexual assault and kidnapping. It is clear not all crimes within the range would call for identical treatment by the respondent when exercising a discretion under s 501(2) of the Act. 39 Because the seriousness with which an offence is regarded and the youth of victims covers a wide range of crimes against children and young people, as specified in the Direction, procedural fairness obliges the respondent, in our view, to identify to the appellant the substance of the judge's comments about 'young people' which were in fact relied upon to the detriment of the appellant in order to give the appellant an opportunity to identify where in the wide range his particular crime should be assessed. The respondent made it plain that the 'threats to young people' were treated by him as being of such seriousness that that factor outweighed all countervailing factors. 40 This distinguishes the circumstances in this case from those in Tuncok's case and Palme's case. Tuncok's case concerned an allegation of want of procedural fairness because the appellant was not informed of the 'case' put against the appellant in the Issues Paper provided to the Minister. Hely J found that the 'case' put in the Issues Paper was based upon facts about which the appellant had been warned. The warning was given by the provision of the Direction to the appellant which put the appellant on notice that the Minister could take into account the seriousness of the crime. An appeal in Tuncok's case was reported as Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 172. The appeal mainly involved an unsuccessful application to include grounds of appeal not raised before the trial judge and is not relevant for present purposes. Palme's case concerned a complaint that there had not been an opportunity to see how the authors of an Issues Paper had "distilled" the relevant material and commented on it. In particular, it was claimed that selective remarks from the sentencing judge omitted an observation that the risk of recidivism was low. The claim was rejected because on the facts the submission presented to the Minister has provided 'a balanced picture' of topics including recidivism. Accordingly, it was found that a complaint of a failure to set out in the body of the submission a particular portion of the sentencing comments made nine years before was fanciful. The proposed notice of appeal in this case raises a much narrower issue than the ostensibly similar issues raised in either Tuncok's case or Palme's case. 41 In this case, because the Direction refers to the youth of victims, in the context of numerous crimes, some of which are far removed from the facts of this case, the provision of a copy of the Direction to the appellant together with a reference only to the judge's comments does not inform the applicant, in the circumstances of this case, of the case which he has to meet. In this case, in order to know the case to be met the appellant needed to be advised of the respondent's possible reliance, to the detriment of the appellant, on the judge's comments referring to young people so that the appellant could deal with the precise circumstances which distinguish his crime against young people from more heinous crimes against young people. It was the failure to so inform the appellant which constitutes a breach of procedural fairness in the circumstances of this case. 42 A common form of detriment is to lose an opportunity to advance a case by not being informed of a case which has to be met. See Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298 ('Dagli'). Notice of reliance on the judge's comments concerning the youth of the victims to the detriment of the appellant would have enabled the appellant to raise, inter alia, the ages of the victims, the characteristics of the victims and the circumstances of the crime including the use of a cigarette lighter as a replica gun. These details were capable of distinguishing the particular crime from many of the serious crimes against children and young people specified in the Direction. This would have given the appellant an opportunity to present a balanced picture before the respondent on the issue of youthful victims in his particular case. Accordingly, ground of appeal (b) is made out. 43 The sentencing judge's comments introduced balance as follows: 'Because the offence is serious I do have to look at a relatively heavy term of imprisonment but I intend to set a relatively short [non-(s.c.)]parole period and a relatively long period of parole because it seems to me that there are special circumstances which mean that Mr Naidu would benefit from a period of supervised transition from his previous life, where he was dealing with a drug addiction through a period in prison which he has very few choices, to a useful life in the community.' 44 The judge's comments were annexed to the Issues Paper as Annexure G and the respondent noted in his 'Statement of Reasons' that all annexures were before him. However, the balancing comments were not set out in the Issues Paper to the respondent; they balance the judge's comments about the seriousness of the crime because of the youth of the victims and would have enabled the respondent to better consider the impact of this case on the community by comparison with other grave crimes against children referred to in the Direction, such as sexual assault and kidnapping. The sentencing judge regarded the appellant as someone who could live 'a useful life in the community' and thought there were special circumstances justifying a relatively short parole period whereas in the absence of having this balancing part of the judge's comments set out in the Issues Paper, the respondent had found the Australian community would expect the appellant's visa to be cancelled because the offences involved 'threatening young people'. Those differences of views demonstrate the need to grant the relief sought as it is not possible to be persuaded that had the Minister been alerted to the matters referred to in paragraph 41 above the outcome would remain inevitably the same: See Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Palme at [24]; Dagli at [91]. 45 Accordingly, leave to amend the notice of appeal will be granted, the appeal will be allowed with consequential orders and with the respondent to pay the appellant's costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Conti and Crennan.

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Judgment (5 paragraphs)

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