Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs

These were not some of the applicant's offences. They were his only offences, though a copy of his criminal record was immediately said to be attached. This part of the submission left the reader with an impression that there were in fact other offences. The contextual importance of this will become apparent. 20 Parts of the applicant's letters were thereafter extracted. The full copies were annexed. 21 The paper then dealt with the likelihood of reoffending. Extracts were set out from the Western Australian Ministry of Justice Report and an extract from the applicant's letters. These documents were identified as annexed. 22 The paper then dealt with general deterrence. It referred to the policy of the Government and noted the Government's strong interest in deterring "offences of this nature". 23 The expectations of the Australian community were dealt with, first, by reference to paragraph 2.12 of the direction. The following was then said in relation to the drug offence. The offence committed by Mr Pereira as listed in paragraph 9 is considered by the Government to be very serious. The nature of that offence is such that the Australian community expects non-citizens who breach Australian laws while in Australia and commit these crimes to have their visa cancelled. It is to be noted that this comment on the seriousness of the offence was limited to the drug offence. 24 The submission then dealt with the subject of the best interests of the children. Reference was made to Article 3.1 of the Convention on the Rights of the Child. Reference was made (without quotation) to paragraph 2.16 of Direction 21, which set out aspects of the interests of the children to which regard should be had: the nature of the relationship between the child and the non-citizen, the duration and strength of the relationship, the age of the child, whether the child is a citizen or permanent resident, the likely effect the separation would have on the child, the impact of the non-citizen's prior conduct on the child, the time the child has been in Australia, the circumstances of the receiving country, language, and cultural barriers. 25 The submission then quoted from the applicant's second letter extensively. His letters were identified as annexed. The submission stated: In the event that Mr Pereira's visa is cancelled and he is removed to Chile, Mr Pereira has stated in his submission that his children would not accompany him. In the unlikely event that the children did accompany Mr PEREIRA to Chile, the educational facilities and standard of the health support system of that country are of a lesser standard to those available in Australia. Language barriers and initial cultural barriers are also foreseen for the children in the probably country of future residence. It is open to you to find from the information given that the cancellation of Mr PEREIRA's visa and his removal from Australia may have a detrimental effect on his children. It is also open for you to find that Mr PEREIRA's children would suffer hardship if they were to be removed from their family and the support networks they have developed in Australia. 26 Finally in a section entitled "Other Considerations" reference was made to the balance of the applicant's family. This hardship was summed up as follows: Should his visa be cancelled and he be removed from Australia, the extent of disruption to Mr PEREIRA, relates primarily to his inability to have contact with his children and immediate family members in Australia who represent his support group. His children currently don't have access to their father. His parents and siblings would suffer from the emotional loss of an eldest son and sibling respectively. 27 Part D of the submission was entitled "decision". The first paragraph (paragraph 45) stated the following: I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) the Direction under s 499 of that Act and (3) all evidence provided on behalf of/and by Mr PEREIRA. 28 Thereunder, in paragraph 46 of the submission, there was a choice set out as follows: I have decided that: (Please delete whichever is NOT applicable) (a) I am satisfied that Mr PEREIRA passes the character test. OR (b) I reasonably suspect that Mr PEREIRA does not pass the character test and Mr PEREIRA has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(2) of the Act to cancel the visa. OR (c) I reasonably suspect that Mr PEREIRA does not pass the character test and Mr PEREIRA has not satisfied me that he passes the character test. I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa. My reasons for this decision are stated at Part E of this record. 29 The Minister circled (c) and signed and dated the document. 30 Part E of the submission was the draft set of reasons. The reasons were signed by the Minister and dated. The date was the same date as the date of the signature under the decision record, 13 August 2004. The evidence allows the conclusion that the Minister signed the draft reasons unchanged. 31 I will deal with the terms of the reasons below. It is important, however, to appreciate what the "reasons" were before they were adopted. They were part of the submission. They were no doubt read and intended to be read as part of the process of decision-making by the Minister. On one view they can be seen as a Departmental recommendation, not so much the personal view of the author, but an expression of view purportedly conformable with Government policy which would justify a decision to cancel the applicant's visa. As such they are part of the submission to be taken into account and considered before the decision. The submission, including the draft reasons viewed as I have indicated, is an integral part of the decision-making process. Unless it falls to be judged otherwise, it is not required to be viewed as adverse information obtained from a third party about the applicant: Bushell v The Secretary of State for the Environment [1981] AC 75, 95-6; Alphaone; and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 77 ALJR 1829; 201 ALR 327. 32 The applicant submitted that as a body of adverse conclusions formulated as draft reasons, Section E of the submission should necessarily have been disclosed to the applicant. Mr Robinson relied on what Gleeson CJ, Gummow J and Heydon J said in Palme at [20]-[22] of their reasons which was as follows: The submission thus presented the minister with a balanced picture on topics, including likely recidivism, which was based upon contemporary material. The conclusion reached was that it was open for the minister that there was a low risk of recidivism. In that setting, the complaint of a failure to set out in the body of the submission a particular portion of the sentencing comments made 9 years before is fanciful. Further, it does not readily appear how the principles of procedural fairness could be engaged in the manner contended for by the prosecutor. It may be accepted, as the prosecutor submitted, that his entitlement extended to the rebuttal of, and comment by way of submission upon, adverse material received by the decision-maker from other sources. That stops short of supporting a complaint of the nature essentially involved here of the "pitch" or "balance" in the statement of relevant considerations in the submission. Further, as indicated above, there is no substance in any complaint of unfair or prejudicial "lack of balance". Reference was made by the prosecutor to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd. Nothing there said supports any different conclusion to that just expressed. The Full Court's statement of principle was as follows: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. 33 It was submitted because Section E was a body of draft reasons to support cancellation it was necessarily "pitched" against the applicant and unbalanced. I leave to one side for the moment the detail of the draft reasons to which I will come shortly. I reject the argument that any set of draft reasons must necessarily be put to the subject of the decision because of their inherent adverse nature. As draft reasons they form part of the decision-making process available to be adopted and amount, as I have said, to a recommendation or provision of an open or available alternative. They can be seen as the consideration of the available material by the Department. They are not adverse third party material. They are the reflection of part of the thought process of decision-making up to and including the consideration by the Minister. 34 Alphaone and Palme provide the guidance to identify the circumstances where the applicant should be given an opportunity to deal with something in a Departmental submission. On the hypothesis, as here, that the applicant has been given, with some clarity, the framework and detail of the relevant universe of discourse, a submission that analyses and recommends giving detailed reasons for an available decision does not need to be disclosed if it does not materially go beyond the boundaries of the opportunity already given to deal with known issues. An applicant with ten convictions for serious violence who has had the opportunity to comment on his or her record cannot complain of unfairness if he or she is not shown the Departmental recommendation for cancellation because of the perceived seriousness, brutality and number of the offences. If, however, in considering these ten offences for violence, the author of the recommendation mistakenly concludes that one of the offences was a serious sexual assault (when in fact it was not a sexual assault at all) the error could be seen as material. Though it was not third party information, but internal consideration, it would have the effect of introducing to the decision-maker and the decision-making process a factual circumstance that was new, adverse and material. The source of the material does not matter, rather it is the unfairness of the recommendation in terms going forward without an opportunity to the subject of the decision to deal with the new matter with which is the procedural vice. There has been no opportunity to deal with the new matter because it does not obviously arise (Alphaone) from the existing material in its context; nor could a person in the position of the subject of the decision reasonably expect such a matter to be relevant. It is likewise if the "pitch" or "balance" of the recommendation is such as not to be fairly open. These words ("pitch" and "balance") were taken from the prosecutor's argument in Palme. In one sense, any recommendation that is adverse to the subject of the decision is "pitched" against him or her. But that is not, it seems to me, what the High Court were referring to. 35 A reasoned recommendation can be made, but it must deal with the material in a way that does not raise a consideration or issue or approach that is not obviously open or is such that a person in the position of the subject of the decision could not reasonably expect. New considerations, materially relevant mis-statements of the available material or materially relevant exaggeration or distortion of the available material, which is adverse to the person in question will raise such an issue or consideration. In these circumstances, fairness will generally demand that the person be given an opportunity to be heard because of the new consideration or because of the material mis-statement, exaggeration or distortion that has raised a new issue, in the sense that I have discussed. 36 It may not be easy to assess, in any given set of circumstances, whether there has been a new issue or a misstatement or exaggeration or distortion and, if there has, whether it is material. Though, if a draft set of reasons is provided and adopted, the question of materiality may not be difficult. Minds may well differ as to whether opinions or conclusions drawn by the author of the recommendation go beyond the material, or whether they are just views (to use the words of Mason J in Kioa v West (1985) 159 CLR 550, 588, policy or comment) with which one simply disagrees. Care must be taken in the analysis. This is not a species of merits review or an opportunity for judicial expression of the proper decision. However, the subject of the decision is entitled to have a recommendation against him or her, or the provision of an available view against his or her interests, that is accompanied by detailed reasons for adoption, written in a way that fairly deals with the available material, in respect of which procedural fairness has been given, without material mis-statement, exaggeration or distortion. This is especially so in relation to a decision to banish an applicant, likely forever, from the community in which he (albeit as a non-citizen) has lived for much of his life and in which his three young children are likely to remain and grow up. 37 It is necessary, of course, to have regard to the whole of the material in any given case in order to assess whether there is a new matter or a material mis-statement, exaggeration or distortion. Error in one document may need to be seen in the light of clarity and correctness in the balance of the material. 38 The above approach conforms with the underpinning foundation of procedural fairness that someone in the applicant's position is entitled to have his or her mind directed to the central issues or factors on which the Minister's decision is likely to turn (Kioa v West at 587; Alphaone; R v Home Secretary; ex parte Doody [1994] 1 AC 531, 563). Here, in significant part, this was comprehensively done by providing the applicant with the section of the Act, Direction 21 and his criminal record and by giving him an opportunity to be heard. But how the material is treated by the Department in its effective Ministerial recommendation can enliven a fresh obligation to bring some aspect critical to the recommendation to the attention of the subject of the decision. That will occur, as I have said, as a matter of material substance if, for some reason, there is a new issue which the subject of the decision cannot reasonably be taken to have anticipated. This is no more than basic fairness. 39 Before turning to the terms of the draft reasons, it is necessary to deal with an anterior point. The applicant was critical of the procedure whereby draft reasons were provided for adoption. It was a procedure, it was said, which was conducive to poor decision-making. It was put at one point that in a context where there is merits review by the Administrative Appeals Tribunal for a decision of this kind made by a delegate, but no merits review when the decision is made personally by the Minister a set of draft reasons was undermining of, or inimical to, that statutory distinction. Whether the process is one which will promote good decision-making is not for me to comment on or decide. My concern is legality: Attorney-General (NSW) v Quin (1991) 170 CLR 1 at 25-6 and 33-4. In Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433, in the context of an issues paper being found not to be reasons, and of the Minister having failed to comply with s 501G of the Act, Branson J said the following at [39] (with which Goldberg J at [84] and I at [88] agreed): I doubt that s 501G(1) is intended to require that the notice therein referred to should emanate from the Minister in the sense that it must be drafted by the Minister. In my view, it would be sufficient for the Minister to adopt as his or her own written reasons prepared by a departmental officer provided, of course, that such reasons actually reflected the reasons why the Minister had reached his or her decision. … 40 If the Minister gave no consideration to the terms of the draft, for instance because the author was known to be reliable and she was prepared to sign a memorandum from that person without giving it consideration, it might be said that there was jurisdictional error for the failure by the Minister to make the decision personally. However, there was no evidence here upon which I could conclude otherwise than that the draft reasons were adopted by the Minister as her own reasons after due consideration and that she made the decision for herself and adopted the draft reasons therefor. 41 Thus, I reject this anterior argument that as a matter of principle the approach of providing draft reasons was not available. 42 It is necessary now to examine the draft reasons as a recommendation or positing of an available approach. It is important to understand that I am looking at the draft reasons as a submission to the Minister and not as the reasons of the Minister. 43 Under the heading "Protection of the Australian Community" there was a discussion of the applicant's offences. Paragraphs 52 and 53 contain the following. Mr PEREIRA has been convicted of a number of offences between 1999 and 2002. He was convicted of 4 offences in New South Wales for crimes such as Common Assault and Contravene Apprehended Violence Order and one serious offence in Western Australia for the crime of Amphetamine Possess with Intent. The Western Australian offence constitutes a crime that I consider to be very serious under paragraph 2.6 of the Direction: It is the Government's view that the following are examples of offences which are considered by the Government to be very serious: (a) In the production, importation, distribution, trafficking, (including possession for this purpose), commercial dealing, or selling of illicit drugs: · persons who embark upon drug-related crimes for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people: · the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and · offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community; (n) any other crimes involving violence or the threat of violence: such crimes are of special concern to the welfare and safety of the Australian community; I considered that Mr PEREIRA's criminal record shows he has incurred fines for acts of violence and a lengthy prison term for drug trafficking. I also considered the effect that illicit drugs have on the community. His conduct has caused serious disruption to a number of Australian citizens and residents and caused them to have concerns in relation to their own safety. I considered this conduct to be very serious. 44 Three matters should be noted about these paragraphs. First, an apparent distinction was drawn between the "serious" offence in Western Australia and the New South Wales offences. This is to be noted, because it is a distinction that is later blurred. Secondly, the New South Wales convictions are described as "acts of violence". At one level this is unremarkable and inherent within the notion of common assault. At another, it may tend to dramatise in its terms the nature of the conduct which gave rise to the charges. This may be so when there is no information before the Minister as to what happened to give rise to those charges beyond the extent of the punishment (fines) and the apparent connection of at least some of the events with the disintegration of the applicant's marriage. Thirdly, there is a reference to "his conduct", including his convictions in New South Wales, having caused "serious disruption" to Australians and caused them to have concerns in relation to their safety. Without knowing anything about the circumstances that gave rise to the assault convictions, there was no basis to say that there was any disruption to people beyond what may be the conduct available to ground an assault charge which may cover a wide range of conduct from the serious and intentional to the recklessly or openly angry. This is not nitpicking linguistics. The materiality of paragraphs 52 and 53 is shown by paragraph 54 which was in the following terms. The nature of Mr PEREIRA's conduct and its effect on the community is such that I gave this consideration great weight, having taken the view that the Australian community is entitled to protection from such conduct. 45 The protection of the public from the conviction for drug trafficking is one thing; but to say that the community needs protection from the conduct that gave rise to the assault convictions by removing the applicant from the Australian community forever when there was no material before the Department or the Minister of what that conduct was, in my view, went beyond, and in that sense exaggerated, the available material. 46 The draft reasons then go on to refer to a pattern of criminal behavior over four years. The applicant says that it was over two years, but that is perhaps an error that can be overlooked as it did span four calendar years. However, paragraphs 55 and 56 of the draft reasons, as they were under the heading "Risk of Recidivism", are of further concern. They stated as follows: I considered the patter of Mr PEREIRA's criminal behaviour, which encompassed a period of some 4 years. I noted that Mr PEREIRA claims not to have committed any offences other than his most recent offence of Amphetamine Possess with Intent and that he considers the cause for his offending to have been family and work problems. I also noted Mr PEREIRA's claim that he has changed and now wants to become a good member of the community. Mr PEREIRA has denied the existence of prior convictions in New South Wales. I assessed that there is a continuing risk that Mr PEREIRA might re-offend. I placed moderate weight on his risk of recidivism. 47 These comments must be viewed against the background of the earlier correspondence. The Departmental letter said that the "relevant ground" was s 501(6)(a). The applicant dealt with the drug offence in his letter. He gave no explanation of the New South Wales offences. He did say that he had not committed any other crimes, but as I have said, it must have been apparent to the Department that he had his record and that he knew the Department had his record. It had been sent to him by the Department. In my view, it was a distortion of the correspondence to conclude that the applicant was denying the New South Wales offences ever happened. He was dealing with the drug offence. It may be that his approach reflected on the perceived lack of seriousness of the New South Wales offences. What he actually thought is, however, irrelevant. But a common sense appreciation of the Department's initial letter and his response does not fairly lead to a conclusion that he was denying that he committed the New South Wales offences. He pleaded guilty to them. This was, in my view, a distortion of the material. 48 The treatment of the New South Wales convictions as serious crimes which was implicit in how they had been treated in paragraphs 53, 54 and 55 was compounded by paragraph 60 which was in the following terms. In view of the serious nature of Mr PEREIRA's offences, however I believe that the Australian community would expect Mr PEREIRA's visa to be cancelled and him to be removed from Australia. I gave great weight to this consideration. 49 On the material available it was an exaggeration to say that the New South Wales offences were of a serious nature. That would depend on understanding something about the underlying facts. Of course, at one level, any infraction of the law is serious, in particular any degree of violence. Context, however, is all important. Here, the context of judging seriousness is whether the Australian community would expect this man to be expelled from the community forever. To talk of the serious nature of an offence in that context requires one either to have before one an offence of a character that bespeaks serious criminality of conduct or, if an offence such as common assault for which fines have been imposed is before one, to know something about the underlying circumstances. Neither obtained here in relation to the New South Wales offences. There was, in my view, a material distortion or exaggeration of the material that was available. 50 This exaggeration or distortion is compounded again, in my view, in paragraphs 67 and 69 which were in the following terms: I noted that Mr PEREIRA's criminal conduct began when he was 20 years old, that his crimes were serious, involved violence on some occasions, and that his conduct was related to marital and work related problems. I accepted that his marital and work related problems caused Mr PEREIRA considerable stress. … In reaching my decision I concluded that the nature and seriousness of Mr PEREIRA's crimes over a period of four years, the harm that illicit drugs cause the community and the expectations of the Australian community outweighed all other considerations above. 51 In those paragraphs, there was some recognition of the background to the matters, but the gist of what the Minister was being told by her Department here, as a concluding remark about the applicant's past, was that the applicant was a criminal who had engaged in serious crimes of violence. That was an exaggeration of the available material in a fundamentally important respect. I say this, not because I take a different view to the author as to the quality of the circumstances, but because the conclusion cannot be made in those terms without understanding the circumstances of what happened to give rise to these charges. That was not known to the Department. The above exaggeration was also made worse by the reference in paragraph 17 of the otherwise balanced Section C of the submission to "some" of the applicant's criminal offences. 52 In my view, there was in the draft reasons an entrenched material exaggeration which went beyond the material available and which effectively introduced a new issue. This was compounded by the direction in which the applicant was taken in the Departmental letter focusing on s 501(6)(a). 53 The material exaggeration was not cured by regard to the material put before the Minister. The draft reasons were said to be correct. They were intended to be relied on as being correct. No doubt the Minister did rely upon them - she adopted them. The evidence does not permit the conclusion that the Minister read all the annexed supporting material. The statement in paragraph 45 of the submission (see [27] above) that the Minister had regard to "all relevant matters" does not identify what material was examined. 54 It is necessary to emphasise that my conclusions are reached not because the Minister's reasons were so expressed. The findings and reasons, as such, in this form, may well not give rise to jurisdictional error. As reasons, they may reflect factual conclusions at odds with the available material, but which display no jurisdictional error. I need not decide this question and it may depend upon the proper application of cases such as Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59. So much can be accepted; but it does not follow that as draft reasons submitted for adoption, so written, they do not raise the necessity for a further opportunity to be heard because of material mis-statement or material exaggeration or distortion in approach as a body of draft reasons for submission to the Minister. 55 A further complaint was made based as to an asserted failure to afford procedural fairness based on the Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 concerning the taking into account of the best interests of the children. The draft reasons contained the following in paragraph 61 to 63. I also gave primary consideration to the best interests of the children. Mr PERERIA has three children through his marriage to Ms Karen Gonzalez, from whom he has been separated since 1999. His former wife has refused access to the children and Mr PEREIRA has recently sought Family Law Conferencing in an attempt to obtain access of the children. Mr PEREIRA advised that should he be removed from Australia, his children would not accompany him to Chile. However, I found that it was reasonable to assume that if they did, then they would not have access to educational opportunities and a health support system that are of a comparable standard to those available in Australia. I therefore found that the children would suffer hardship if they accompanied Mr PEREIRA to Chile. I noted Mr PEREIRA's comments in his submissions that his removal from Australia would cause his children to grow up without the necessary influence, love and support of a father. I concluded that the cancellation of Mr PEREIRA's visa and his removal from Australia would cause some hardship on the children. I gave the difficulties his children would suffer if he was removed from Australia considerable weight but noted that Mr PEREIRA's criminal history and incarceration also cause him and his family hardship. 56 The Minister noted the applicant's comments in his letter. Also, Section C of the submission had set out relevant parts of the applicant's second letter. However, a number of decisions of this Court have explained the importance of identifying what the interests of the children are, see in particular Wan v The Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, 140. Before one can take the interests of the children into account as a primary consideration, one needs to appreciate what those interests are. The submission referred to paragraph 2.16 of Direction 21. That was a good beginning. But there was no real application by the Minister to the circumstances, such as they were known, of these three young Australian citizens aged 8, 6 and 4. The Minister stated that she concluded that the applicant's removal from Australia leaving behind, as was anticipated, his three small children "would cause some hardship on the children". The "difficulties" that they would suffer were not identified. 57 As I said in Perez v The Minister for Immigration and Multicultural and Indigenous Affairs (2002) 119 FCR 454 at 485-6: Here, nowhere did the delegate identify for himself those interests, or what they called for. It should be said at the outset that this is not some inflexible rule of law, or requirement for mechanical incantation. It is a logical and appropriate starting point if the task is to be essayed reliably. The interests of the children are considerations in respect of their human development - their health including their psychological health and happiness, their social and educational development as balanced nurtured young citizens of this country. This is not a check list but an illustration of the kinds of considerations relevant to these young people which form their best interests in connection with a decision whether to keep their father away from them in gaol save for visits or whether to release him on appropriate conditions if thought necessary. 58 Not only was there little, if any, elucidation in the reasons of the Minister of the interests of these three young Australians, there is an absence of expression of what so weighs against this primary consideration as to outweigh it: see Wan at [32] to [34] and see also Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218 at [53] to [57]. 59 Further, there appears to have been taken into account as a contrary matter that the applicant's criminal history and incarceration (both expressed in the past tense) also "cause him and his family hardship" (expressed in the present tense). It is difficult to understand what this means given the inquiry is as to the effect in the future of expelling the applicant from this country. I do not propose to pursue this difficulty. Given that I am of the view that the content of the draft reasons was otherwise such as to lead to a denial of procedural fairness, it is unnecessary to base my decision on Teoh. It is sufficient to say that the paucity of the Minister's reasoning in respect of the interest of the children provides a strong foundation to say that the application of the views of the Full Court in Wan would lead to the decision being set aside also. 60 Apprehended bias was relied on. I reject this ground. The provision of the draft reasons, the adoption of them and the terms of the submission otherwise, taken together or alone would not raise a reasonable apprehension in a fair minded informed lay person that the decision may not have been brought about by an impartial mind. In this respect, I refer to the test set out in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6], [7] and [8]. 61 There was no irrelevant consideration in taking into account by adoption of the draft reasons. They are not someone else's reasons for another decision. They are, as I have said, part of decision-making process, an available view was being put to the Minister. Leaving aside the difficulties I have otherwise expressed about them, to take the draft reasons into account was not to take into account an irrelevant consideration. 62 There was also asserted a failure to obtain information and inquire as to the nature of the New South Wales offences. In my view the proper way to analyse this is as I have identified, that is, that the recommendation or submission went beyond the available material to such a degree as to raise the obligation to give the applicant an opportunity to be heard. It is not to be analysed in my view by reference to a duty to inquire and discover relevant information. No foundation has been shown for such a duty. 63 Irrationality and illogicality were asserted as to paragraph 63 of the reasons which had the curious passage as to the best interests of the children to which I have already referred. It is unnecessary to decide, but I do not think that this is sufficient to infect the whole of the decision with jurisdictional error by reference to the principles discussed in Applicant S 20. However, as I have already said, it does contribute to the conclusion that the interests of the children may not have been dealt with in a satisfactory way. 64 It follows from these reasons that the applicant, in my view, was not afforded procedural fairness by the Minister in the making of this decision. The decision to cancel a visa was therefore, in my view, made without jurisdiction or in excess of jurisdiction. That would lead to the conclusion that the applicant's visa has not in fact been cancelled validly and the applicant should be treated as currently holding the visa he had. 65 The orders of the Court will be as follows. The Court: (1) Declares that the decision of the respondent Minister made on 13 August 2004 to cancel the applicant's visa was made in circumstances of the applicant being denied procedural fairness. (2) Orders that a writ in the nature of certiorari issue quashing the said decision of the respondent Minister. (3) Orders that the respondent be restrained herself and through her servants or agents from dealing with the applicant on a basis otherwise than that his visa was not validly cancelled by the above decision. (4) Orders that the respondent cause the applicant to be released from immigration detention forthwith. (5) Orders that the respondent pay the applicant's costs. (6) Order that these orders not be entered prior to 3 pm today. (7) Grant leave to the respondent to relist the matter at 2.15pm on notice to counsel to the applicant if there is to be any debate about the terms of the above relief. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate: Dated: 11 January 2005 Counsel for the Applicant: Mr M A Robinson

Solicitor for the Respondent: Australian Government Solicitor