Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant is a 25 year old citizen of Chile. When he was eleven years of age he migrated to Australia in the company of his family. Since his arrival in 1991, apart from a two-year period from late 1993 to late 1995, which he apparently spent in Chile, he has lived in Australia under a permanent resident visa. The applicant's adolescent and adult life thus has been largely spent in Australia. He is married, though he and his wife are separated. There are three children of the marriage, two boys aged 8 and 6 and a girl aged 4. 2 The respondent Minister has cancelled the applicant's visa under section 501 of the Migration Act 1958 (Cth) (the Act) making him liable to deportation. Section 501 provides a power to the Minister to cancel a person's visa in circumstances, relevantly here, when a visa holder has been sentenced to a term of imprisonment of 12 months or more. The section is couched in terms of the passing of a "character test". (See s 501(2), (6) and (7).) 3 I have come to the conclusion that the material put to the Minister for her consideration including, in particular, draft reasons for the cancellation of the applicant's visa (which the Minister appears to have adopted as her own) was expressed in such a manner as to raise important and adverse factual matters beyond those which someone in the position of the applicant could reasonably have anticipated as likely to arise from the material that he understood to be before the Minister in the known statutory context. Another way of expressing the reason for my view is to adopt the words of the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576, 591-2 and say that the material put to the Minister for consideration contained adverse conclusions, in effect by way of Departmental recommendation, that were not obviously open on the known material in the known context of the statute and decision in question. 4 These matters of expression and adverse conclusions concerned how the Departmental officer formulated and distilled the applicant's history, circumstances and position; thus, to understand why I have come to the view that I have it is necessary to have a careful appreciation of the factual background of the applicant against which to assess the fairness of the Departmental paper to the Minister. 5 The applicant has been convicted of a number of criminal offences. On 19 May 1999, he was charged with common assault said to have been committed on 18 May 1999. On 11 June 1999, he was convicted and fined $200 in Fairfield Local Court. On 10 June 1999 he was charged with common assault said to have been committed on 9-10 June 1999. On the following day, 11 June 1999, when the first offence was disposed of, this matter was also dealt with at Fairfield Local Court. He was fined $500 on the second charge. Also on 10 June 1999, he was charged with contravening an apprehended violence order on 9-10 June 1999. This too was dealt with by the Magistrate at Fairfield Local Court on 11 June 1999. The applicant entered a recognisance of $1,000 for two years under the then s 558 of the Crimes Act 1900 (NSW). It is not difficult to infer that all these charges were related. From other material in evidence that was before the Minister it can be inferred that some if not all of these incidents were related to the applicant's marital difficulties at the time. On 26 November 2001, the applicant was charged once again with common assault said to have been committed on 26 November 2001. This time he came before Liverpool Local Court. On 17 January 2002 he was fined $400. 6 Shortly after the disposal of the fourth of these offences, the applicant committed a serious offence. On 24 January 2002, he was caught at Perth Airport with a quantity of methylamphetamine in his possession. He was charged with possession of the drug with intent to sell or supply to another. He pleaded guilty. The facts surrounding the offence to which the plea was made were stated by counsel for the Crown as follows: The facts are: at about 6.15 am, Eastern States time, on Thursday 24 January 2002 the two offenders and one co-accused attended at the Sydney airport and purchased tickets on a Qantas flight from Sydney to Perth. Prior to boarding the plane two of the offenders, Mohasay and Pereira, each taped two plastic bags containing between 305 and 355 grams of methylamphetemine tablets to their bodies. Pereira placed another two bags containing tablets into his hand luggage. The total weight of the tablets was later found to be 1808 grams with a purity of mehtylamphetemine of 2 per cent. Schlemmen, who was the third co-accused, was aware the other two were in possession of the tablets and travelLed with them on the Qantas flight arriving in Perth at about 9.10 am Perth time. On their arrival the two offenders and one co-accused caught a taxi to an inner-city motel where Schlemmen paid for a motel room booked under Mohasay's name. The three went up to their room where Mohasay and Pereira removed the packages from their bodies and other tablets packed in the hand luggage. Schelmmen removed six tablets from one of the larger packages and with Pereira left the motel room to take the six tablets to another person leaving Mohasay in control of the remaining tablets which he placed into a cupboard drawer. At about 9.15 am - sorry at about 9.50 am detectives from the organized crime investigations stopped and searched Schlemmen and Pereira in Bennet Street, East Perth and located the six tablets. At about the same time other detectives executed a Misuse of Drugs Act search warrant on the offender's motel room during which they located the remaining tablets in the cupboard drawer. When interviewed at the scene the two offenders and co-accused made admissions in relation to their movements and activities. 7 Further circumstances surrounding the offence were put in the applicant's counsel's address in mitigation on the plea. The transcript of the proceedings before Jackson DCJ was in evidence. (It should be noted that there is an evident typographical error in the transcript misidentifying counsel who addressed the court on behalf of the applicant.) It is unnecessary to descend into too much detail as to the explanation for the applicant's behaviour. He was said to have been in need of money after borrowing money to begin a floor sanding business and having all the goods and equipment for the business stolen. He was said to be depressed from his marital problems. He was said not to have been an organiser of the events in question. The address by the applicant's counsel also provided some explanation for the 1999 charges. It was said that there were domestic disputes and at least one was said to have been the upshot of the applicant returning to the matrimonial home and discovering his wife in the company of someone else. Nevertheless, each of the applicant and the person in whose company he was arrested (who also pleaded guilty but who had a more serious criminal record) was sentenced to five years' imprisonment with a declaration as to eligibility for parole and a declaration that each was a drug trafficker. 8 On 18 February 2003 the applicant, while still in Acacia Prison in Western Australia, was given a letter from an unnamed officer in the "Cancellations Section" of the Department. The letter stated as follows: Notice of intention to consider cancelling a visa under subsection 501(2) of the Migration Act 1958. I am writing to you to provide you with notice of intention to cancel your visa. You travelled to Australia on 30 April 1991 as the bearer of a Category 105 visa. You are currently the holder of a visa class BB 155 Resident Return Visa. This visa is currently your sole authority to remain in Australia. It has come to the attention of the Department that this visa may be liable to cancellation by the Minister under section 501 of the Migration Act 1958 (the Act). The relevant grounds are: · Subparagraph 501(6)(a) I have attached the full text of section 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 substantial criminal record (See Attachment 1) · and/or · Your past and present criminal conduct · Your past and present general conduct In reaching a decision whether to cancel the visa the Minister will have regard to the matters noted above and the attached Minister's Direction No. 21 titled 'Direction under Section 499) - Visa Refusal and Cancellation under Section 501 Migration Act 1958'. In preparing your comments please read fully and carefully the contents of the Minister's Direction. You should address each and every topic that you feel applies to you or is relevant to your circumstances. You may also provide any further information, apart from those considerations listed in the Minister's Direction, that you feel the Minister ought to be aware of and take into account. You may wish to comment on your criminal history, a copy of which is attached to this letter. 9 Direction 21, which was provided to the applicant, was in evidence before me. The applicant sent a letter dated 7 April 2003 to the Department. It was a short, but straightforward, plea not to have his visa cancelled. It did not deal with the four New South Wales offences, but only dealt with the serious offence for which he had been incarcerated. The letter was in the following terms. I am writing to you concerning the intentions to cancel my visa, I really don't know where to start, but to say, for you to please except my apologies and I take full responsibility for what I've done. And to ask you and your colleagues to please give me another chance to prove to you what I have done was wrong and foolish of me I do come for a good and supportive family I travelled with my family to Australia on the 30/4/91. I was 12 years of age, I have a younger brother and younger sister and am currently 23 years of age and have three children. I have always worked and supported my wife and children. I have never in been in prison before, nor committed any other crimes of any nature, in my life. In 1997 I started to marital problems during these period I stopped working and my wife and I could not solve our problems, which were starting to become serious. In 1999 I began to work again, flooring. I managed to save some money and my father offered to help me to start my own business, which included installing floorboards and floor polishing, etc. My life was changing for the best after the year of opening my business. All of my equipment was stolen and as I was not insured I had lost thousands of dollars and without these tools I could not keep up with my orders and lost my contracts. After this I started to stress and didn't know what to do. I did not know why I was having such bad luck. I didn't want to ask my family for help as they had already given me so much, and didn't know what to do. That is when I become so depressed for help that somehow I got involved in this huge mistake. I knew what I was doing was wrong and totally against my wishes. Since being in custody the contact I have had with my wife and children is by mail. I miss my family so much, and my wife and children have been affect by what I have done; especially my children. My two boys and little girl have never been apart from me before. They have suffered for the mistake I've committed yet I know that I must make it up to them and to everyone who has been affected by my actions. I respectfully ask that I be allowed to make it up to them and try to make a better life for my children. I have strong ties with my children and as they are Australian citizens, if I am deported, it would meant that they are left without a father. I hope that you can see that they have suffered enough for my mistake and my only concern is to be with them and try to make them proud of me. I can only repeat that I am sorry for my action that have put me in jail but also know that I am a changed man and committed to my family. I want to again become a productive member of this great country and hope, no plead, that you can see that I want what is best for my children. As stated above, this is my first offence and hope that you can see this is a grave mistake on my part but still only my first mistake. If I am given the chance to stay in Australia and keep my visa I will not disappoint your office, my children nor my family. I hope that you will not revoke my visa and pray that you can see my honesty and deepest regret at every committing an offence. [errors in original and emphasis added] 10 It is important to note that it was apparent that the applicant must have known that the Department knew of the New South Wales offences. It had sent him a copy of his record. Thus, his statement in the letter that he had not committed any other crimes of any nature should be understood against that background and against the background that s 501(7) was apparently concerned with a serious crime of imprisonment. His letter should also be seen against the background of the letter which was sent to him by the Department and which identified the ground of the possible cancellation as s 501(6)(a) being a substantial criminal record as defined by s 501(7). The importance of these matters will become evident in due course. 11 The letter of the applicant enclosed a handwritten reference from an Australian citizen who had known the applicant since 1998. 12 On 30 October 2003 an officer from the Cancellations Section of the Department wrote to the applicant, who was now out of prison on parole, and living, once again, in Liverpool, New South Wales. The letter stated the following. On 18 February 2003 you were forwarded a Notice of Intention to Consider Cancelling a Visa under subsection 501(2) of the Migration Act 1958 and a copy of s 499 Direction 21, for you to consider when formulating your reply. You replied to the notice on 10 April 2003 but failed to clearly address paragraphs 2.13 - 2.17 of Direction 21, which relate to "The best interests of the child" and "Other considerations" I have enclosed an additional copy of the s 499 Direction 21 with the areas that require your consideration and reply, highlighted. Please address every paragraph in your reply. In view of the time that has transpired since last writing to you, please provide any written comments and information to this office for my attention no later than the close of business at this office 30 November 2003. You may respond by mail or facsimile to the address below. If you do not respond by 30 November 2003, a decision on whether to cancel your visa will be made using information already held by the Department. Paragraphs 2.13 to 2.17 of Direction 21 were in the following terms. The best interests of the child 2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not primary consideration but may be considered with other considerations under paragraph 2.17. 2.14 Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interest of one child may indicate the non citizen parent should not be reused a visa or removed from Australia, but that the best interest of another child may point towards visa refusal or cancellation. 2.15 In general terms, the child's best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child's best interests being served by separation from the non-citizen, include, but are not limited to: a. any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or b. any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizens conduct. 2.16 When considering the best interests of the child, decision-makers should have regard to the following: (a) the nature of the relationship between the child and the non-citizen; (b) the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct; (c) the age of the child; (d) whether the child is an Australian citizen or permanent resident; (e) The likely effect that any separation from the non-citizen would have on the child; (f) The impact of the non-citizen's prior conduct on the child; (g) The time (if any) that the child has spent in Australia; (h) The circumstances of the probable receiving country; including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia. (i) Any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and (j) Any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances. Other Considerations 2.17 When considering the issue of visa refusal or cancellation, other matters although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but hat generally they be given less individual weight than that given the primary considerations. These other considerations may include: (a) the extent of disruption to the non-citizen's family business and other ties to the Australian community; · Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that: "The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State." Article 17.1 provides that: "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, not to unlawful attacks on his honour and reputation." (b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen: · in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen) decision-makers must consider the circumstances under which the relationship was established and whether ht Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship; (c) the degree of hardship which would be caused to immediate family members lawfully resident in Australian (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some ways dependant on the non-citizen for support which cannot be provided elsewhere; (d) family composition of the non-citizen's family, both in Australia and overseas; (e) the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability; (f) the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition); (g) the nature and seriousness of the offence(s) or alleged offence(s) in the context of seeking to evade an outstanding legal matter); (h) any evidence of rehabilitation and any recent good conduct; (i) whether the application is for a temporary visa or permanent visa; (j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and (k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501. 13 By letter dated 28 November 2003 the applicant sought to deal with the suggestions concerning the best interests of the children. The letter stated as follows: I received your letter dated 30 October 2003 confirming your Notice of Intention to consider Cancelling a Visa under subsection 501(2) of the Migration Act 1958. I would like to confirm my previous letter dated 7 April 2003. I have changed. My time in prison was very hard for me and I would not like to be in that situation again. I have learnt a great deal during my time in prison and now I want to work to help my htree children. I don't want my children to say in the future that I was not a good father. I am very sorry for the offence I committed and I believe that I already paid my debt to the Australian society with my period in prison. I want to show that I have changed and I wish to become in a good and positive member of the community. Enclosed is a copy of a letter from the Department of Corrective Services that attests to the fact that my parole is progressing well. In relation to "The best interests of the child" and "Other considerations" I would like to express the following: 2.15 a) I have never abused or neglected my children in any way. I love my children. b) I am sure they have not suffered any physical or emotional trauma arising from my conduct. On the contrary, I have always wanted to give them the best. 2.16 a) The nature of my relationship with my children in the natural relationship existing between parents and children. I am separated from my wife, Karen Gonzalez since 1999. Before my period in prison I was seeing my children every weekend. Regrettably, since my release from prison I have not been able to see them as before because my former wife has not allowed this. I have now asked for Family Law Conferencing an am awaiting a date. I hope this mediation will see access to my children reinstated ( a copy of letter is attached to confirm this). b) My relationship with my children was both full-time and permanent from their births till the break down of my marriage. As I mentioned above, before my period in prison I was seeing my children every weekend. c) My children are: Ivan Camilo Pereira Gonzalez 8 years old Angel Sebastian Pereira Gonzalez 6 years old Catalina Kelly Pereira Gonzalez 4 years old d) My children are Australian citizens: Ivan Camilo was born in Chile. He came to Australia as a permanent resident. He became Australian citizen when his mother became citizen by grant. Angel Sebastian and Catalina Kelly were born in Australia. e to j) Therefore, my children will remain in Australia, they will have no problems with language, education, health because their only education has been here in Australia. If I am allowed remain in Australia, I am going to give them all my love and support. If I am forced to return to Chile, it is unlikely that I will be able to be an active part of my children's lives. I will not have the financial means to purchase three tickets for them to visit me in Chile, now will I probably be ever granted a visa to visit Australia. This will mean that my children will grow up without the necessary influence, love and support of a father. Although I may have made a mistake I believe paid for that as I have my children please do not punish my children further for my foolish actions. I look forward for your favourable response. [errors in original] 14 The letter of the applicant also enclosed a letter from his mother which included the following statement. I know my son committed an offence but I know that he is very sorry for his mistake. He suffered greatly during his time in prison because he was separated from his family, especially his two little children. As a mother, I request that you give him another chance. Please, believe me, he is not a bad man and he is not a bad son either. He has been a good father to his children and his offence was his first offence in Australia. His period in prison was very hard for him. Currently, he is attending Psychological Therapy. If you decided to cancel his permanent residency in Australia, it would be terrible for me. He has all his close relatives in this country (parents, brother, sisters and children). If he had to return to Chile, there, he would have no support. If you allow him to remain in Australia, I am sure he will prove that he has changed. He would like to restart his own Floor Sanding Company. He needs to be close to his children and his family. My family and I ask you again to forgive. Really he is very sorry. I am sure it will not happen again! By my faith in God I think you will understand my petition. I thank you in advance for your consideration. 15 An officer of the Department then prepared a submission or issues paper for consideration by the Minister. The paper had five sections in its body and six annexures. There was no evidence before me of its preparation by the Department or of its consideration by the Minister, other than the document itself containing in two places what was accepted to be the signature of the Minister. 16 The immediate feature of comment relevant to this case is the fact that the fifth and final section of the submission was a body of draft reasons expressed in the first person singular. The place of this section was explained on the first page of the submission under the heading "Purpose" as follows: 1. To seek your decisions on: · Whether Mr PEREIRA passes the character test in s 501(6) of the Migration Act; and · If not, whether to cancel his visa pursuant to s 501(2) of the Migration Act. 2. Should you choose to make a cancellation decision the draft statement of reasons at Part E should set out correctly your reasons for doing so. If it fails to do this a revised statement of reasons that includes your required amendments will be prepared. 17 The submission was organised as follows. Part A contained the personal details relevant to the applicant. Part B dealt with the question of the character test. This matter was dealt with on the basis of the amphetamine conviction and the failure to pass the character test because of ss 501(6)(a) and (7). The facts of the offence were taken verbatim from the prosecutor's statement of facts to which the plea was made and to which I have referred. Complaint was made by the applicant's counsel, Mr Robinson, that this was misleading without reference to the terms of the address in mitigation by the applicant's counsel. I disagree. The author was, at this point, fleshing out the bare facts of the offence. That was perfectly appropriate. In any event, a copy of the transcript of the District Court hearing was enclosed with the submission. 18 Part C was the section dealing with discretion. Parts of Direction 21 were extracted. The part of paragraph 2.6 concerning the gravity with which the Government viewed drug offences was set out. Paragraph 2.7 of Direction 21 was set out as follows: Paragraph 2.7 of the Direction states: It is the government's view that the sentence imposed for a crime is an indication of the seriousness of the offender's conduct against the community. Decision-makers should have due regard to the Government's view in this respect, including: · the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and · the repugnance of the crime: · crimes involving violence or fraud against defenceless person (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community. 19 The next paragraph, paragraph 17, contained an error. It stated as follows: Some of Mr PEREIRA"s offences are recorded in the table below. Date Offence Sentence New South Wales Common Assault $300 18/05/1999 New South Wales Common Assault $500 10/06/1999 Contravene apprehended domestic violence order $1,000, 2 yrs New South Wales Common Assault $400 26/11/2001 Western Australia Amphetamine Possess With Intent 5 yrs imp from 24/01/02 To be Declared a Drug Trafficker 26/04/2002