Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT ON ADMISSIBILITY OF MINISTERIAL STATEMENT OF REASONS FOR DECISION Introduction 1 On 17 January 2003 the Minister for Immigration and Multicultural and Indigenous Affairs cancelled the visa of Rifat Nezovic who had migrated to Australia with his wife in 1994. The visa cancellation was based in substance upon the Minister's finding that Mr Nezovic had been convicted of murder in Serbia in 1982 when he was aged 15. Mr Nezovic denies that he was so convicted. He has sought judicial review of the Minister's decision. The hearing of his application commenced on 2 October 2003. At the hearing counsel for the Minister sought to provide reasons for the decision which were prepared many months after the decision itself was taken. Counsel sought to tender the reasons without any supporting affidavit by the Minister. Mr Nezovic's counsel argues that the reasons are inadmissible unless verified by the Minister on oath in these proceedings and, if so verified, would require the Minister to be available for cross-examination on the reasons. I adjourned the hearing to rule on that objection as it is of importance to the future conduct of the proceedings. 2 For the reasons that follow I am of the view that the reasons, unless verified by the Minister, are not admissible. I am also of the opinion that if verified on oath by the Minister, in the circumstances of this case, it is appropriate that counsel for Mr Nezovic have the right to cross-examine the Minister on whether the written reasons now offered do in fact reflect the reasons for the decision at the time it was made. Factual and Procedural History 3 Rifat Nezovic was born in Yugoslavia on 23 October 1966. He migrated to Australia in 1994 with his wife, Seida, and they settled in Western Australia under a class 209 Resident T100 Visa granted to each of them on 7 March 1994. Mr Nezovic is a fitter and turner. 4 Mr Nezovic and his wife applied for Australian citizenship in 1996. They were interviewed by an officer of the Department of Immigration. The officer put to Mr Nezovic that, as a boy, he had been convicted of murder in Serbia and had served a term of imprisonment. Mr Nezovic denied this. Indeed at a subsequent interview he produced certificates obtained from Serbia which he provided as evidence that he had no such conviction. Nothing happened for six years until June 2002 when the Nezovics' lawyer, Mr Walker, wrote to the Department inquiring about the fate of their citizenship application. By way of response he was given a notice of intention that the Minister was considering the cancellation of Mr Nezovic's visa. Mr Nezovic was given an opportunity to comment before the Minister considered whether to cancel his visa under subs 501(2) of the Migration Act 1958 (Cth). 5 Mr Nezovic's lawyer wrote to the Department in response to this notice saying that Mr Nezovic denied any substantial criminal record and saying that no details had been provided by the Department in the notice as to the alleged offence. He went on to say that Mr Nezovic claimed that it was his father and not him who was convicted of murder. He had been placed in a juvenile hostel in the care of the State. 6 A departmental issues document was put to the Minister on 9 January 2003 seeking his decision on whether Mr Nezovic's visa should be cancelled pursuant to s 501(2). It was put to the Minister in the document, as a matter of fact, that on 30 June 1982 Mr Nezovic was sentenced by the Novi Pazar District Court for a 's 501(7)(c) applicable offence' namely '1 charge of murder, imprisonment for a period "between one to five years".' Reference was made to the time served by Mr Nezovic, said to be four years, four months and one week in a penal correction institution. It was then put that, based upon these facts and the supporting documentation, it was 'open for [the Minister] to find on the above facts that there [was] a reasonable suspicion that Mr Nezovic [did] not pass the character test due to the fact that he [had] been sentenced to a term of imprisonment of 12 months or more'. The next section was headed 'Evidence of Grounds'. The first item of such evidence was said to be a copy of Mr Nezovic's Australian criminal history contained at Annex B to the issues document. That criminal history indicated that he has no convictions for any offence in Australia. The second piece of evidence was a copy of a statement from the Federal Ministry of Foreign Affairs of the Federal Republic of Yugoslavia dated 20 June 1996. This was Annex E to the document and contained a statement that Mr Nezovic had been sentenced by decision K28/82 of the District Court in Novi Pazar of 30 June 1982, for the criminal act punishable under Article 47/1 of the Criminal Code of the Socialist Republic of Serbia, to between one to five years in a penal-correctional institution which he served in the period from 4 September 1982 to 12 January 1987. Also under the heading 'Evidence of Grounds' was a reference to a copy of a letter from the Consulate General of the Federal Republic of Yugoslavia in Sydney dated 24 September 1996. This was Annex E1 and was an advice that the name of the offence under Article 47/1 of the Criminal Code of Serbia is 'murder'. 7 The next subheading in the issues document was 'Finding Against Character Test'. This contained two very short paragraphs each comprising one sentence. The first was simply a repetition of the statement that Mr Nezovic had been sentenced by the Novi Pazar District Court in respect of the offence of murder and imprisoned for the term set out above. The document then said: '[11] Based on the above information it is open for you to find that Mr Nezovic has a substantial criminal record and therefore cannot pass the character test.' 8 The next heading was 'DISCRETION'. Up to this point it will be noted that there had been no reference at all to evidence provided by Mr Nezovic that he had not been convicted of the offence alleged. Reference to these matters arose only after the completion of the section headed 'DISCRETION' under a further section entitled 'OTHER MATTERS RAISED BY/ON BEHALF OF MR NEZOVIC'. 9 As indicated in my reasons for judgment on the claim for interlocutory relief published on 25 March 2003, the structure of the issues document appeared to reflect a misconception about the process of reasoning for which s 501 provides. A reasonable suspicion having been established that a non-citizen fails to pass the character test, it is for the Minister then to determine whether the non-citizen fails to satisfy him that he passed the character test. In the part of the submission relevant to that issue there was absolutely no reference to Mr Nezovic's contentions. It is only after the Minister finds that the non-citizen has failed to satisfy him that he passes the character test that the question of discretion arises. 10 Under the general heading of 'DISCRETION' reference was made in the issues document to various factors mentioned in Ministerial Directions which had been issued under s 499 of the Act. It was pointed out in the document that the Minister was not bound by his s 499 Directions but that it was open to him to be guided by the factors set out in them and to place whatever weight he regarded as appropriate on them. 11 The issues document then set out the considerations relevant to the exercise of the ministerial discretion. These were: . Protection of the Australian Community . The Expectations of the Australian Community . The Best Interests of the Children . Other Considerations . Other International Obligations 12 The document finally turned to other matters raised by/on behalf of Mr Nezovic. It was at this point, for the first time, that it addressed Mr Nezovic's denial that he had been convicted of murder. In this context the document again referred to the statement from the Federal Ministry of Foreign Affairs of the Federal Republic of Yugoslavia dated 20 June 1996 and the letter from the Consulate General of Yugoslavia in Sydney dated 24 September 1996. It then referred to a police certificate obtained by Mr Nezovic and issued by the Internal Ministry of Internal Affairs of the Republic of Serbia dated 14 October 1996 which stated that he had not been convicted. A statement from the Council Court of the Republic of Serbia dated 9 October 1996 certifying that there was no criminal procedure or investigation for criminal acts under the jurisdiction of that court against Mr Nezovic, was also cited. So too was a statement from the Ministry of Foreign Affairs in Yugoslavia dated 6 January 1997 that the police certificate asserting that Mr Nezovic had not been convicted was authentic. There was then a fax from the Australian Embassy in Belgrade noting that the statement from the Ministry of Foreign Affairs mentioned nothing about the information provided in the police certificate and speculating that Mr Nezovic might have contacts in the Internal Ministry in Novi Pazar. A further fax from the Australian Embassy dated 21 January 1997 was quoted in which it was said: 'You must try to understand that corruption in this country is not unusual and for a fee any document can be produced.' 13 Another fax dated 7 January 1997 from the Australian Embassy in Belgrade stated that Mr Nezovic was 15 years old at the time of his conviction and had spent four years in a correctional institution for juvenile offenders. It was pointed out that according to local law, if he did not reoffend within a five-year period after his sentence was completed, his conviction would be deleted from the records. No particular conclusion was offered in respect of these various items of 'evidence' put before the Minister. 14 The issues document in Part E set out a number of optional paragraphs for adoption by the Minister. That not crossed out by the Minister together with the introductory words of Part E read as follows: 'I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and Mr Rifat NEZOVIC'S comments, and have decided that: (d) I reasonably suspect that Mr Rifat NEZOVIC does not pass the character test and Mr NEZOVIC has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.' This decision was signed by the Minister. 15 By a letter dated 30 January 2003 the Department of Immigration and Multicultural Affairs gave notice to Mr Nezovic of the Minister's decision to cancel his visa. The letter attached a copy of the issues document as signed by the Minister and included the following sentence: 'I enclose with this Notice: . a copy of the decision record that sets out the reasons for the decision (other than non disclosable information);' Mr Nezovic was taken into immigration detention on 7 February 2003. 16 An application for an order of review of the Minister's decision was filed in this Court on 28 February 2003. The application primarily relied upon the jurisdiction conferred upon the Court by s 39B of the Judiciary Act 1903 although it also made reference to a ground under the Administrative Decisions (Judicial Review) Act 1977 (Cth). 17 On 25 March 2003, I made an order for Mr Nezovic's interlocutory release from immigration detention pending the hearing of his application for review which at that time was set down for 29 April 2003. On 28 April 2003, the hearing of the application was adjourned to 18 September 2003 and the application was amended in terms of a proposed amended application which was filed in Court on that day. At that time the Minister had 'conceded' that the decision record provided to Mr Nezovic did not constitute a notice of the kind required by s 501G(1)(e) of the Migration Act setting out his reasons for the decision to cancel the visa. A statement of reasons was said then to be under preparation and it was anticipated that the Minister would be in a position to provide it to the applicant about two weeks from that date. An affidavit filed on behalf of the Minister also indicated that a request had been made by the Department on or about 14 April 2003 to the Australian Embassy in Belgrade asking it to obtain either a copy of the relevant court decision or a record of the court case held at the Novi Pazar Court on 30 June 1982 in order to ascertain whether or not there was indeed a case of mistaken identity as to the person convicted of murder on that date as claimed by Mr Nezovic and his wife. The Australian Embassy in Belgrade had indicated to the Department that it would take some weeks to complete those inquiries. 18 In the event, the hearing of the application was relisted to 2 October 2003. 19 When the matter came on for hearing on that date, counsel for the Minister sought to put in evidence an affidavit sworn by Mr Blades, a solicitor employed in the office of the Australian Government Solicitor, which affidavit exhibited a copy of what was said to be the Minister's statement of reasons for the cancellation of Mr Nezovic's visa pursuant to s 501(2) of the Migration Act. Counsel for Mr Nezovic objected to the tender of the ministerial reasons through the affidavit of a third party. He submitted that if the Minister wished to tender the reasons, then it should be done on his own affidavit and the applicant should have the opportunity to cross-examine him. 20 After hearing argument, I adjourned the hearing of the application with a view to ruling on the admissibility of the statement of reasons. The parties were given leave to make written submissions on that question. Statutory Framework 21 The decision under review was made under s 501 of the Migration Act which provides in the relevant parts: '501(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. … 501(6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test. 501(7) For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.' The Minister is required by s 501G to give notice of a cancellation decision, with reasons, to the visa holder. The section relevantly provides: '501G(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; the Minister must give the person a written notice that: (c) sets out the decision; and (d) specifies the provision under which the decision was made and sets out the effect of that provision; and (e) sets out the reasons (other than non-disclosable information) for the decision; and … (3) A notice under subsection (1) must be given in the prescribed manner. (4) A failure to comply with this section in relation to a decision does not affect the validity of the decision.' 22 The construction of s 501G(1)(e) may have to take into account the provisions of s 25D of the Acts Interpretation Act 1901 (Cth) which provides: 'Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.' 23 Also relevant are provisions of the Evidence Act 1995 (Cth) relating to the hearsay rule, exceptions to that rule and the admissibility of official records. 24 The hearsay rule is set out in s 59 of the Evidence Act which provides: '59(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact...' 25 There is a number of exceptions to the hearsay rule. Section 63 deals with the reception of hearsay evidence in civil proceedings where the maker of the relevant representation is not available to give evidence about an asserted fact. This is not a case in which it is suggested that the Minister is not available to give evidence. 26 Section 64 establishes another exception to the hearsay rule in civil proceedings notwithstanding that the maker of the relevant representation is available to give evidence. That section provides in the relevant parts: '64(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) oral evidence of the representation that is given by a person who saw, heard, or otherwise perceived the representation being made; or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation; if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.' In the ordinary course, if the exception under s 64(2) is to be relied upon notice is to be given under s 67 which relevantly provides: '67(1) Subsections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence. (2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section. (3) The notice must state: (a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and (b) if subsection 64(2) is such a provision - the grounds, specified in that provision, on which the party intends to rely. (4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice. (5) The direction: (a) is subject to such conditions (if any) as the court thinks fit; and (b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.' Section 68 provides that where a notice discloses that it is not intended to call the person who made the previous representation because it would cause undue expense or undue delay or would not be reasonably practicable then a party may not later than 21 days after notice has been given, object to the tender of the evidence, or of a specified part of the evidence. The section provides for objection to be made by giving to each other party a written notice setting out the grounds on which the objection is made. The Court may then, on the application of a party, determine the objection at or before the hearing. 27 Section 155 of the Evidence Act provides for the admissibility of official records. The section relevantly provides: '155(1) Evidence of a Commonwealth record or of a public record of a State or Territory may be adduced by producing a document that: (a) purports to be such a record and to be signed or sealed by: (i) a Minister, or a Minister of the State or Territory, as the case requires; or (ii) a person who might reasonably be supposed to have custody of the record; … (2) If such a document is produced, it is presumed, unless evidence that is sufficient to raise doubt about the presumption is adduced, that: (a) the document is the record, copy or extract that it purports to be; and (b) the Minister, Minister of the State or Territory or person: (i) signed or sealed the record; or (ii) certified the copy or extract as a true copy or extract; as the case requires.' 28 The term 'Commonwealth record' is defined in the Dictionary for which the Act provides. The definition relevantly includes the following: 'Commonwealth record means a record made by: … (c) a person or body other than a Legislative Assembly holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or … and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a), (b), (c), (d) or (e), but does not include a record made by a person or body holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned.' The Grounds of Review 29 The application for an order of review was amended in Court on 28 April 2003. The grounds of the application are as follows: '1.0 In making or purporting to make the decision the Respondent acted without or in excess of jurisdiction, in that he failed to understand and to discharge the requirements of Section 501(2) of the Migration Act 1958 ("the Act") by addressing the questions which he was required to address, namely: 1.1 whether he reasonably suspected that the First Applicant did not pass the character test ("the first question"); and, if so, 1.2 whether the First Applicant had satisfied him that he passed the character test ("the second question"); and, if not; 1.3 whether, in the exercise of his discretion, he should cancel the visa of the First Applicant ("the discretion"). Particulars (a) A submission was prepared by departmental officers of the Respondent for his use in making the decision; (b) It should be inferred that the submission constituted the only material provided to and considered by the Respondent for the purpose of making the decision; (c) The Respondent, in breach of Section 501G(1)(c) of the Act, failed to give to the First Applicant a written notice that sets out the reasons for the decision; (d) It should be inferred that the process of reasoning exposed in the submission was adopted by the Respondent; (e) The structure of the submission reveals that the Respondent failed to understand that the decision-making task had the three distinct components referred to above, and failed to address each of them as separate and distinct matters. 2.0 In making or purporting to make the decision the Respondent acted without or in excess of jurisdiction, in that he acted solely on the basis of material which failed to present to him, or even disclose, the true controversy and the true question for decision, namely whether the First Applicant in fact had been convicted of murder. Particulars (a) The Applicants repeat Particulars (a) to (d) inclusive to Paragraph 1.3 above; (b) In those parts of the submission which were directed respectively to the first question and to the second question, there was no reference: (i) to the fact that the First Applicant had disputed and was disputing that he had been convicted of murder; or (ii) to the evidence provided by the First Respondent to support his assertions that he had not been so convicted; which matters were instead referred to only in the part of the submission directed to the exercise of the discretion. (c) The first and second questions were presented in those parts of the submissions as questions admitting in each case of only one answer, namely that which would be adverse to the First Respondent. 3.0 In making or purporting to make the decision the Respondent acted without or in excess of jurisdiction, in that he failed altogether to consider the question of the proper characterisation of the offence of which the First Applicant was said to have been convicted when, on the material, such consideration was required. Particulars (a) The Applicants repeat Particulars (a) to (d) inclusive to Paragraph 1.3 above; (b) The information relied upon in the submission included that the Article under which the First Applicant was said to have been convicted applied to a person who deprived another person of life; (c) Such information alleged that the First Applicant had been sentenced to imprisonment for a period between one and five years. 4.0 In making or purporting to make the decision the Respondent acted without or in excess of jurisdiction, in that he misunderstood the nature of his discretionary power to cancel a visa under s 501(2) of the Migration Act 1958. Particulars The Respondent wrongly understood that the power was a power to decide not to cancel a visa, when in fact it is a power to decide to cancel a visa.' 30 The grounds of the application are of significance in connection with the proposed ruling as it was suggested by counsel for Mr Nezovic that the reasons provided by the Minister have been structured to meet them. The Admissibility of the Reasons 31 As appears from its language, s 501G requires, not merely the provision of a statement of reasons, but a written notice to the person whose visa has been cancelled. The notice is required to set out the decision, the provision under which it was made and the reasons for the decision. The conjunction of these elements suggests, although the Act does not expressly require, that the written notice under s 501G is to be the means by which the decision to cancel a visa is communicated to the visa holder. 32 In W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55, Lee J identified the purpose of the obligation imposed by s 501G in respect of decisions under s 501(2) thus: '…to safeguard the integrity of such decisions.' Adopting the language of s 476(1)(a) of the Act, as it then stood, he characterised the provision of reasons under s 501G as part of the procedures to be observed 'in connection with' the making of a decision under s 501(2). His Honour said at [64]: 'By s 501G(1)(e) parliament required the minister, in making a decision under s 501(2), to have regard to the requirement that the decision had to be explained in writing in a document which set out the decision and the reasons for the decision. The creation of the document was part of the procedure to be observed "in connection with" the making of the decision: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [30]-[31] per Gaudron J; cf at [77] per McHugh, Gummow and Hayne JJ. As noted in Administrative Review Council Report to the Attorney-General (at [70]), the preparation of a statement of reasons is part of the decision-making process.' In their recent joint judgment in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 at [43], Gleeson CJ, Gummow and Heydon JJ, accepted the characterisation advanced by Lee J that the obligation to provide reasons was a procedure required by the Act to be observed in connection with the making of the decision. Their Honours also observed in a footnote to their judgment (fn 23) that Lee J's treatment of the subject was not challenged on the appeal from his decision - Minister for Immigration and Multicultural Affairs v W157/00A (2002) 72 ALD 49 at 56. 33 The issue before the High Court in Palme was whether a failure to provide reasons as required by s 501G constituted a jurisdictional error which would vitiate the cancellation decision in respect of which the reasons were required. Their Honours held that not to be the case. 34 Before turning to the reasons now proffered on behalf of the Minister, it is necessary to consider the status of the notice and 'reasons' provided to Mr Nezovic on 30 January 2003. Did that notice and the record of decision bearing the ministerial endorsement meet the requirements of s 501G? If the answer were in the affirmative then there would be a real question whether the reasons now tendered were provided under s 501G. 35 Section 501G requires that the notice of cancellation of a visa under s 501(2):