Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT ON MOTION FOR INTERLOCUTORY RELEASE FROM DETENTION 1 Rifat Nezovic was born apparently on or about 23 October 1966 in what was then the Federal Republic of Yugoslavia and is now the Republic of Serbia. He is married to Seida Nezovic, the second applicant. They migrated to Australia, arriving in Perth on 21 March 1994, pursuant to a class 209 resident T100 visa granted to each of them on 7 March 1994. They have lived in Western Australia since they arrived here. They have no children. Mr Nezovic describes himself as a fitter and turner. He has no criminal record in this country. 2 In 1996, Mr Nezovic and his wife lodged applications for Australian citizenship which have not been finally determined. In that year, he and his wife were interviewed by an officer of the Investigations Section of the Department of Immigration. The officer at that time put to Mr Nezovic that he had been convicted of murder as a boy in Serbia and had served a term of imprisonment. Mr Nezovic denied the allegations. On the occasion of a second interview he provided certificates which he had obtained from Serbia to indicate he had no such conviction. 3 The Nezovics heard nothing for six years until June 2002 when their lawyer, Mr Walker, wrote to inquire about progress in relation to the citizenship application. The reply he received was a notice of intention that the minister was considering the cancellation of his client's; that is, Mr Nezovic's, visa. The notice was in the following terms, addressed to Mr Nezovic care of Mr Walker: "I am writing to you to provide you with notice of intention to cancel your visa. You are currently the holder of a Class 209 Resident T100 visa granted to you on 7 March 1994. 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) . Subparagraph 501(6)(c)(i) . Subparagraph 501(6)(c)(ii) . Subparagraph 501(6)(d)(ii) . Subparagraph 501(6)(d)(v) 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 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 49 - Visa Refusal and Cancellation under Section 501 Migration Act 1958'." The letter went on to suggest that he read fully and carefully the contents of the Minister's direction and address each and every topic which he felt applicable to him or relevant in the circumstances. 4 Mr Walker responded to that letter on 11 July 2002. He pointed out that the notice gave no detailed indication of the basis of the proposed cancellation, stating that the opportunity to comment, which was purportedly provided, appeared to be a rather empty one. He said that Mr Nezovic denied that he had any substantial criminal record and noted that no details had been provided by the department in the notice as to the alleged sentence or sentences in question. His letter then went on: "However, Mr Nezovic understands from discussions with your Department some years ago that it has been alleged that as a youth he was convicted of murder. As you may know from the contents of your file, he has denied this. He maintains that denial. Mr Nezovic has provided you in the past with a document from the relevant authorities certifying that he has not suffered such a conviction. I note that the Ministry of Foreign Affairs of the Federal Republic of Yugoslavia advised on 6 January 1997 that the Ministry of Internal Affairs of the Republic of Serbia had confirmed that the certificate in question was authentic and had been issued by the competent authority in Novi Pazar. Mr Nezovic says that his father, but not he, was convicted of murder. Mr Nezovic himself was placed in a kind of juvenile hostel, in the care of the State, as his mother was not available to care for him and no other relative was in a position to provide for his care. He was not, however, placed in any kind of penal facility. If any other allegation is to be made concerning a criminal record, I do not know what it may be. At the moment I can only presume that the references to past criminal and general conduct relate to the same allegation of murder, which is and always has been denied. The references to present criminal and general conduct are a complete mystery. It is quite impossible to provide any comment or response without knowing anything about the alleged conduct. In general, it is denied that there is any basis upon which it would be proper to cancel Mr Nezovic's visa." 5 On 9 January 2003, a departmental submission was made to the Minister to seek his decision on whether Mr Nezovic passed the character test in s 501(6) of the Migration Act 1958 (Cth) and if not, whether his visa should be cancelled pursuant to s 501(2) of the Act. Under the heading, Grounds, in paragraph 2 of the submission it was said: "[2] Section 501(2) of the Migration Act 1958 provides that the minister may cancel a visa granted to a person if the minister reasonably suspects that the person does not pass the character test (s501(2)(a)), and the person does not satisfy the Minister that he or she in fact passes the character test (s 501(2)(b)). [3] Under Section 501(6)(a), a person does not pass the character test if he or she has a substantial criminal record within the meaning of 501(7). [4] Under 501(7)(c), a person is deemed to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more." Under the heading, "Reasonable Suspicion", the following statements, inter alia, were made: "[5] On 30 June 1982, Mr Nezovic was sentenced by the Novi Pazar District Court for the following s 501(7)(c) applicable offence: . 1 charge of murder, imprisonment for a period "between one to five years".

[6] Mr Nezovic served 4 years, 4 months and 1 week in a penal-correction institution.

[7] A statement from the Federal Ministry of Foreign Affairs of the Federal Republic of Yugoslavia dated 20 June 1996 states: 'Nezovic ... Rifat of father Zuka, born on 23 October 1966 at Raduhovce/Tutin, has 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.'" A copy of the letter was annexed to the submission. 6 Paragraph 8 referred to a letter from the Consulate General of the Federal Republic of Yugoslavia in Sydney dated 24 September 1996 which stated that the name of the offence for Article 47/1 of the Criminal Code of the Socialist Republic of Serbia was murder and that it was expressed in the following terms: "(1) A person who deprive(sic) another person of life will be sentenced to a prison to serve a minimum of five years." The submission then said: "[9] It is open for you to find on the above facts that there is a reasonable suspicion that Mr Nezovic does not pass the character test due to the fact that he has been sentenced to a term of imprisonment of 12 months or more." 7 This aspect of the submission put it to the Minister as a fact that Mr Nezovic had been convicted and sentenced and that on those facts there was a reasonable suspicion that he did not pass the character test. There was no suggestion that the facts themselves were merely at the level of reasonable suspicion. I also note that the provision of the Serbian Code, which is referred to and purportedly translated in the letter from the Consulate General of the Federal Republic of Yugoslavia could, within the Australian context, encompass offences in the range from negligent homicide to deliberate killing. 8 The submission moved directly to discretionary considerations under the heading "DISCRETION" at par 12 it said: "If you are satisfied that Mr Nezovic does not pass the character test you must consider the exercise of your discretion to decide whether Mr Nezovic should be permitted to remain in Australia. s 501 of the Migration Act 1958 provides you with a discretion to cancel a visa. You have issued Directions under s 499 to guide delegates and the AAT in the exercise of that discretion. It is clear from a number of decisions of the Federal Court that, when you decide a case personally, you are not bound by your s 499 Directions. In making a decision on this case it is open to you to be guided by the factors set out in the Direction. However, in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors." It then pointed out that Mr Nezovic had been notified by registered mail to his representative, Mr Walker, on 20 June of the intention to cancel the visa. He had been invited to submit any comment that he believed relevant and had responded to the invitation by the letter sent on 11 July 2002. 9 The structuring of the submission on the face of it reflects a misconception of the process of reasoning for which s 501 provides. The reasonable suspicion having been established, it is for the Minister then to determine whether the non-citizen has failed to satisfy himself that he passes the character test. After that the question of discretion arises. 10 The documents provided by Mr Nezovic years before to show that he had never been convicted of murder were referred to towards the end of the submission after reference to discretionary considerations and under the heading, "Other Matters Raised By/On Behalf of Mr Nezovic." This referred to Mr Walker's letters of 11 July 2002 and 21 October 2002. At par 54 under this heading the submission set out an extract from Mr Walker's letter of 11 July, to which I have already referred, dealing with the discussions in the department in 1996 where the allegation had first been put to him that as a youth he had been convicted of murder. 11 The submission noted that a further letter dated 21 October 2002 from Mr Walker enclosed a letter dated 14 June 2002 from a lawyer in Novi Pazar in Yugoslavia which was said to confirm that the Corrective Behavioural Centre in Kruzuvac was not used for juveniles convicted of serious criminal offences. The original allegation against Mr Nezovic claimed that he had served his custodial sentence in Kruzuvac. On Mr Walker's submission that claim must now be rejected. There was set out in the submission an extract from the letter of 14 June 2002 from the lawyer in Novi Pazar which said: "According to the regulations in paragraph 83 of the Criminal Law in the Federal Republic of Yugoslavia, corrective behavioural (sic) measures towards juveniles do not result in (do not have any effect) any legal consequences towards juveniles as opposed to criminal convictions" At par 57 of the submissions, still under the heading of "Other Matters Raised By/On Behalf of Mr Nezovic", it was said that the Investigation Section of the Department had completed an investigation in March 2001 which found that Mr Nezovic had been convicted of murder and sentenced to five years imprisonment by the Novi Pazar District Court.

At par 58 it was said that, at the request of the Australian Embassy in Belgrade, the Federal Ministry of Foreign Affairs of the Federal Republic of Yugoslavia had issued a statement dated 20 June 1996 which stated that Mr Nezovic had been sentenced by a decision K28/82 of the District Court in Novi Pazar 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. This statement is that set out in par 7 of the submission. [see [5] of these reasons]. 13 At par 61 reference was made to a police certificate which had been obtained by Mr Nezovic. It was issued by the Internal Ministry of Internal Affairs of the Republic of Serbia and dated 14 October 1996. It indicated that, according to data from the official evidence of that Secretariat, he had not been convicted. At par 62, a further certificate obtained by Mr Nezovic of 9 October 1996 issued by the Council Court of the Republic of Serbia was also referred to, in which it was certified that there was no criminal procedure or investigation for criminal acts under the jurisdiction of that court in relation to Mr Nezovic. A statement from the Ministry of Foreign Affairs of the Federal Republic of Yugoslavia to the Australia Embassy dated 6 January 1997 was referred to at par 63 which said: "The Ministry of Internal Affairs of the Republic of Serbia has confirmed that the Police Certificate no. 235-1/2018 of October 14 1996, which states that Mr Nezovic Rifat has not been convicted, is authentic - issued by competent authority in Novi Pazar." Reference was then made to a fax from the Australian Embassy in Belgrade dated 15 January 1997 which said: "As you can see from their reply they state the 'Police Certificate is authentic' but they mention nothing about the information provided in the Police Certificate. I would be inclined to conclude that the original information provided by the Foreign Ministry is correct and that Mr Nezovic may have contacts in the Internal Ministry in Novi Pazar" There was a further fax referred to at par 65 from the Australian Embassy in Belgrade dated 21 January 1997 which said: "I can understand your concerns, but we are also puzzled by the information provided to us by the courts. You must try to understand that corruption in this country is not unusual and for a fee any document can be produced." Then at par 66, a further fax from the Australian Embassy dated 7 February 1997 was quoted: "We … asked for an explanation as to why [thee Foreign Ministry of Belgrade] provided us with discrepant information regarding Mr Nezovic's conviction. Ms Ostojic then told us the following: Mr Rifat Nezovic was 15 years old at the time of his conviction, and had spent 4 years in a correctional institution for juvenile offenders. According to the local law, if he does not re-offend within a 5 year period after his sentence is completed, his conviction will be deleted from the records. Ms Ostojic proceeded to quote the Article from the Yugoslav Criminal Code, under which Mr Nezovic's conviction was deleted." 14 The submission set out a list of the annexures which were attached to it containing material on which the facts and background information was based. Then in Part E of the submission under the heading "Ministers (sic) Decision on Cancellation under 501(2)" a number of optional paragraphs were set out but those which were not crossed out were in the following terms: "I have considered all relevant matters including (1) and assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) my Direction under s 499 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." 15 The decision was signed by the Minister for Immigration and Multicultural and Indigenous Affairs. As a result, Mr Nezovic was taken into immigration detention on 7 February 2003. 16 On 28 February 2003, an application for an order of review of the Minister's decision was filed in this Court. The application is brought primarily pursuant to s 39B of the Judiciary Act 1903 (Cth), although there is also reference to a ground under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The grounds of the application are: "A. Pursuant to s 39B Judiciary Act 1903 (1) The Respondent made an erroneous finding on a question of fact, the existence of which was a pre-condition to the Respondent having jurisdiction and power to make the decision, and such erroneous finding affected the Respondent's purported exercise of power. Particulars The Respondent erroneously found that he reasonably suspected that the First Applicant had been sentenced to a term of imprisonment of 12 months or more and that, as a consequence the first respondent (sic) had a substantial criminal record and did not pass the character test. (2) The Respondent filed to take into account matters relevant to the making of the decision, and as a result his purported exercise of power was affected. Particulars (a) The Respondent ignored the following certificates or statements which went to prove that the First Applicant had not been sentenced to a term of imprisonment: (i) Certificate issued by the Municipal Court in Tutin dated 9 October 1996; (ii) Police certificate issued by the Ministry of Internal Affairs in Novi Pazar, dated 14 October 1996; (iii) Statement from the Ministry of Foreign Affairs of the Federal Republic of Yugoslavia, dated 6 January 1997. (b) (i) The Respondent failed to adequately consider the question of whether the First Applicant had been sentenced to a term of imprisonment of 12 months or more, in that he failed to make further inquiry when the circumstances called for such inquiry. (ii) In particular those circumstances were the certificates or statements referred to in (a) above, and the fact that no judicial or Police document which was evidence of any such sentence had been produced. 3. The Respondent in making the decision acted in breach of the rules of procedural fairness, which were applicable and constituted a condition of the exercise of the decision-making power. Particulars (a) The Respondent purported to give the First Applicant an opportunity to be heard in regard to the decision prior to the making of the decision, by provision of a notice entitled 'Notice of Intention to Consider Cancelling a Visa under Subsection 501(2) of the Migration Act 1958'. (b) Such notice did not set out the substance of the allegations made against the First Applicant which the Respondent proposed to take into account. 4. The decision was so unreasonable that no reasonable person could have made it Particulars (a) The Respondent ignored the following certificates or statements which went to prove that the First Applicant had not been sentenced to a term of imprisonment: . . . B. Pursuant to Administrative Decisions (Judicial Review) Act 1977 5. There was no evidence or other material to justify the making of the decision. . . ." 17 The application has been the subject of programming directions and the hearing date has been set down for 29 April 2003 at 10.15. The applicant has, however, filed a motion on 21 March seeking an interlocutory order that he be released from immigration detention. The order as sought in the motion is expressed in bald and unconditional terms, but it is clear that what is sought is an interlocutory order for his release pending the hearing and determination of the application. 18 It is not in dispute that the Court has the power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make an interlocutory order providing for the release from detention of the first applicant pending the outcome of his application. This appears from the judgment of the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 (2002) FCAFC 390. The availability of judicial review in respect of the decisions made under the Migration Act extends to the cases of jurisdictional error which would avoid the application of s 474, which relates to "privative clause decisions". The decision of the High Court in Plaintiff S157 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 195 ALR 24 is in substance to the effect that where a jurisdictional error is asserted in proceedings for the issue of a constitutional writ or, alternatively, relief under s 39B of the Judiciary Act, the issue of whether there has been a privative clause decision under the Migration Act falls to be determined so that the privative clause section, s 474, does not apply at the threshold to prevent such an application being brought. 19 I approach this application for interlocutory relief on the basis that it is necessary for the first applicant to show that there is an arguable case to be tried of jurisdictional error which would entitle him to relief under s 39B of the Judiciary Act and, secondly, that the balance of convenience favours the grant of such relief. 20 The application itself does not look particularly promising in terms of exposing an arguable ground for the relief which is sought by the first applicant. No doubt, however, it may be the subject of further consideration and amendment prior to the substantive hearing in April. In particular, the first ground is directed to what is said to be the respondent's finding of reasonable suspicion that the first applicant had been sentenced to a term of imprisonment for twelve months or more and that as a consequence he had a substantial criminal record and did not pass the character test. 21 What I think the materials to which I have referred expose is a real question as to whether the respondent has properly addressed the requirement, not merely for a reasonable suspicion, but that when such a reasonable suspicion is formed he must fail to be satisfied by the non-citizen that he has passed the character test. On the face of it the submission, coupled with the ministerial decision, does not expose any reasoning which would indicate the basis upon which he could be said to have been satisfied that the non-citizen, the first applicant, did not pass the character test in this case. 22 There are contending documents to completely contrary effect as to whether the first applicant was in truth convicted of an offence under the Serbian criminal law. There are speculative statements by the Australian Embassy, based on advice from Yugoslavia, as to the possibility of the first applicant's documents having been corruptly obtained or, alternatively, his conviction having been deleted and thus the documents properly indicating the state of the record which would show no conviction at all. 23 It may well be that at the end of the day I will be persuaded by counsel for the respondent, if the matter proceeds to determination on this basis, that the indications given in the respondent's acceptance of Option (d) under the heading "Decision" in Part E of the submission is sufficient to negative the possibility of jurisdictional error. At the moment, however, I have a real concern that there may have been a failure to comply with the legal requirements of s 501(2) and, although it is not as expressly raised by the grounds set out in the application, it does suggest that there is a serious case which may well be addressed by amendment of the application prior to the hearing. The question of the balance of convenience, notwithstanding the submissions put on behalf of the respondent, favours the first applicant. The respondent has referred to the question of public security and protection having regard to the nature of the first applicant's alleged conviction. As to that, I say three things. First, the conviction was in 1982, over 20 years ago. Second, the conviction was for an offence, the precise nature of which is not apparent on the materials. The relevant section is quite capable of comprehending accidental killing as well as deliberate killing. Although the word "murder" is used, the actual text of the section which has been disclosed to the Court does not indicate that it is directed to wilful or intentional or malicious killing. Third, the respondent's officers do not seem to have regarded this allegation as a matter which required urgent action given that, although it was first put to the applicant in 1996, it seems nothing further was done until a notice of intention to cancel his visa was sent in June of 2002 in response to a letter sent by his solicitors. I note there is reference, in the submission to the respondent, of the investigation having been completed in March 2001. But even assuming that to be the case the facts did not indicate a pressing concern, on the part of the respondent's officers, about public safety.

In the circumstances, I propose to make an order releasing the first applicant from detention on certain conditions pending the hearing of the application. The orders are: 1. The respondent is hereby restrained from continuing to detain the first applicant until the day of the hearing of the application, 29 April 2003, such restraint to be subject to the observance by the first applicant of the following conditions: (a) that upon his release from detention he will reside at 92 Forrest Road, Hamilton Hill; (b) that in the event of any proposed change of address and contact details he will give 48 hours prior notice in writing to his solicitors, Bayly and O'Brien, 3rd Floor, 524 Hay Street, Perth, Western Australia 6000 and to Ms Theresa Ling at the Australian Government Solicitor, 2 The Esplanade, Perth, Western Australia of his intended address and contact details; (c) he will report in person to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) at 411 Wellington Street, Perth two days each week between the hours of 9 am and 4 pm excluding only weekends and public holidays and in addition thereto by telephone each day for the balance of the week to James Petcov, telephone number 9415-9164 or such other named officer or officers at the Perth office of DIMIA as may be designated in writing from time to time by the respondent to his solicitor during ordinary working hours excluding only weekends and public holidays; (d) he will surrender himself into immigration detention on the date set down for the hearing of the application, that is, 29 April 2003; (e) the sum of $5000 be paid by the first applicant to the Australian Government Solicitor to be forfeited to the Minister upon breach of any of the preceding conditions if that breach continues for two days and upon the respondent providing the first applicant with written notice of the breach by delivery to his last-known address. 2. There is liberty to any party to apply to revoke the order or to vary its terms. 3. Costs today reserved. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate: Dated: Counsel for the Applicants: Mr S Walker

Solicitor for the Respondent: Australian Government Solicitor