Ooi v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 In this matter the applicant, Mr Chin Lye Ooi, seeks judicial review of a decision made personally by the respondent, the Minister for Immigration and Multicultural Affairs on 14 October 1999 to cancel his permanent resident visa pursuant to s 501(2) of the Migration Act 1958 (Cth) ("the Act"). Factual background 2 The applicant arrived in Australia on 18 February 1976 and was granted permanent residency in 1981. In 1994 he pleaded guilty in the District Court of New South Wales to two counts of supplying heroin and was subsequently sentenced to a minimum term of seven years imprisonment. 3 On 14 October 1999 the respondent decided pursuant to s 501(2) of the Act that the applicant did not pass the character test, that the applicant had been unable to satisfy the respondent that he did pass the test, and that his visa should be cancelled. On 26 October 1999 a letter issued from the Department of Immigration and Multicultural Affairs advising the applicant of the visa cancellation. The applicant claims that he did not receive this letter. 4 Section 501G(1) of the Act relevantly provides: "If a decision is made under subsection 501(1) or (2)…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". 5 The applicant claimed that the respondent had failed to notify him as required by s 501G and that there had been a failure to comply with the General Direction issued under s 499 of the Act. 6 As the hearing proceeded it became apparent that the best course was to adjourn the hearing and to order that the respondent comply with s 501G of the Act. Obligation to give reasons 7 It is manifest from the terms of s 501G(1) that the respondent is obliged to furnish the applicant with reasons for his decision. The requisite content of those reasons is to be gleaned from the relevant statutory context, but also from the rationale underlying such a statutory duty. Summarising the cases referred to by Sackville J in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414 - 415, that rationale may be said to include the following considerations: first, reasons should be such that the disappointed party may understand why the decision went against him or her; second, that party must be put in a position such that he or she may decide whether there is any error in the reasoning worth challenging; third, reasons ensure public confidence that decisions are appropriately and fairly made; fourth, and in aid of the third consideration, the provision of reasons imposes an intellectual discipline on the decision-maker to ensure that close attention is given to the matter, that extraneous matters do not cloud the decision and that, in accordance with the statutory function in question, the power is properly discharged. 8 There is nothing in the relevant statutory context which would indicate that any of those aspects of the rationale are to be regarded as diminished. Indeed, on the contrary, since the inevitable consequence of this decision is that a man, who was lawfully resident (and who was with a trivial exception a law-abiding resident) in Australia for sixteen years, would lose his liberty, pending deportation, without any prospect of conditional release no matter how small the interim risk that he might pose to the Australian community may be. It is trite that the sufficiency of reasons can only be judged in the context of the facts and circumstances of the particular matter at hand. 9 The real question here was why a number of factors should be thought not to outweigh the very serious single crime committed by the applicant against the Australian people. Those factors can be summarised in this way: firstly, the applicant's long history of crime-free and apparently productive residence in Australia before the commission of the serious crime to which I have referred; secondly, his history after the commission of that crime as, apparently, a model prisoner and the uncontradicted opinions that he is both unlikely to offend again and is a remarkably good worker; thirdly, the hardship that would be caused to his conspicuously loyal, loving and blameless de facto wife, herself an Australian citizen; fourthly, the very real hardship that would be occasioned to him by deporting him at the age of 50 to a country where he last permanently resided nearly a quarter of a century ago and a country with a standard of living considerably inferior to that of Australia. That question is not answered by simply saying, in effect, that "in my discretion those factors do not outweigh the applicant's commission of that crime". 10 The Minister's attention was specifically invited by his departmental advisers to a direction which he had purportedly issued pursuant to s 499 of the Act. Another important matter left unanswered, except I think by a somewhat uncertain inference from the materials presently available to the applicant, is whether the Minister did consider that that direction bound him in the sense that he had to follow the weightings attributed to various factors outlined by it regardless of the particular circumstances of the case. In Halmi v Minister for Immigration and Multicultural Affairs [1999] FCA 1438, Hill J expressed a view that the Minister would not be so bound, although he referred to the propriety of the Minister, in general, applying to himself the same standards as he would expect his officers to apply. 11 A further and perhaps more important matter is how the Minister interpreted that document. In this regard guidance has been given as to the interpretation of such directions by members of this Court, explicitly in Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238 and in Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567, and implicitly in Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713. 12 The rationale of the duty to give reasons and those important questions are not met by the course of action taken by the Minister of merely responding to what might be best described as a multiple choice shorthand form of decision prepared for him by his departmental officers. The form of the submission to the Minister encouraged him not to give further reasons. Having regard to s 501G(1)(e) and to the well known, indeed one may fairly say perennial, discussion in this Court of what is needed to discharge statutory obligations to give reasons, this is somewhat unfortunate. Power to order a stay 13 The applicant made an interim application that the Minister's order be stayed and that he be released from immigration detention pending the provision of reasons. In relation to the power to order a stay s 482 relevantly provides: "(2) If an application is made to the Federal Court under section 476 or 477 in relation to a judicially-reviewable decision, the Federal Court or a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal. (3) The orders that may be made under subsection (2) are orders staying, or otherwise affecting the operation or implementation of the judicially-reviewable decision, or a part of that decision. (4) The Federal Court or a Judge of that Court may, by order, vary or revoke an order in force under subsection (2) (including an order that has previously been varied under this subsection). (5) An order in force under subsection (2): (a) is subject to such conditions as are specified in the order; and (b) has effect until: (i) if a period for the operation of the order is specified in the order - the end of that period or, if a decision is given on the appeal before the end of that period, the giving of the decision; or (ii) if no period is so specified - the giving of a decision on the appeal."