Preston v Minister for Immigration & Multicultural & Indigenous Affairs

5 Not long after his arrival in Australia, Mr Preston commenced a relationship with Sharen Jane Martin who is an Australian citizen. Their daughter, Chandra Dee Preston, was born on 11 October 1980. According to Mr Preston they lived in a de facto relationship and brought their daughter up together over the next twenty years. They were married in 1992, but the marriage ended in 1999. In the interim Mr Preston was convicted of the aggravated sexual assault of Ms Martin and sentenced to four years imprisonment. He was released on parole after sixteen months but the parole was revoked in circumstances which are not entirely clear from the affidavit material, but which appear to have followed a visit by himself and Ms Martin to a parole officer with the intention of obtaining access to a publicly funded marriage counsellor. 6 Mr Preston commenced living with Yvonne Michelle Sutton in September 2001. She is a United Kingdom citizen who has been a resident of Australia since 1966. 7 By a letter dated 28 November 2002, Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) sent to Mr Preston a notice that the Department was considering the cancellation of his visa under subs 501(2) of the Migration Act. The Department informed him that he was currently deemed to be the holder of a visa class TY444 Special Category Visa. He was invited to comment on his criminal history, a copy of which was attached to the letter. 8 Mr Preston responded by a letter dated 16 December 2002. He referred to his relationship with Ms Martin and the fact that both his parents are now living in Australia and that his mother is an Australian citizen. He also referred to his siblings and their respective families as providing love and support for him during difficult times. He said that his life style had improved since he had taken steps to rehabilitate himself. He said he was in the process of obtaining a licence to drive a motor vehicle. He referred to the charge of aggravated sexual assault in respect of Sharen Martin. He said he had dealt with their relationship problems and that they had been married in September 1992. He had in no way been involved with any group or gang who showed disregard for the law, or dealt in drugs or were violent. He was opting for sporting and Christian support groups. He made no reference to his then current relationship with Ms Sutton. 9 On 31 January 2003, DIMIA wrote to Mr Preston requesting that he advise of any current relationship, but he did not reply to that letter. An officer of DIMIA then prepared a minute for the Minister to seek his decision on whether Mr Preston passed the character test in s 501(6) of the Migration Act and if not, whether his visa should be cancelled pursuant to s 501(2). The minute referred specifically to Mr Preston's conviction on 16 June 2000 in the Bunbury Court of Petty Sessions for driving under suspension and for which he was sentenced to a term of imprisonment of twelve months. Reference was made to the magistrate's sentencing remarks and it was put to the Minister that it was open to him to find that there was a reasonable suspicion that Mr Preston did not pass the character test due to the fact that he had been sentenced to a term of imprisonment of twelve months or more. Without, at that point, referring to Mr Preston's submission the minute then went on to refer to matters relevant to the Minister's discretion to cancel his visa. It referred to the Minister's directions issued under s 499 of the Act which guide delegates and the Administrative Appeals Tribunal in the exercise of that discretion. The Minister was reminded that when deciding a case personally he was not bound by his s 499 directions. 10 The minute went on to set out what were designated Primary Considerations, the first of which was the protection of the Australian community. It noted that Mr Preston's offence was not listed as a "very serious offence" under the ministerial direction. Nevertheless on the basis of his criminal history it was said to be open to the Minister to find that "his conduct against the community" was serious. 11 Reference was made to Mr Preston's letter. The minute also quoted a passage from a Pre Parole Assessment Report in respect of Mr Preston which was dated 7 September 2000 and which stated: "Having regard to Preston's conviction for sexual assault,…, his defacto, was also interviewed in person by the writer. Preston had informed the writer that… was fully aware of his history and she was able to confirm this, despite their having known each other for a relatively short time only (one year). … who is also a New Zealander, informed the writer that there is no violence in their relationship." A copy of Mr Preston's submission was annexed to the minute, as was a copy of the Pre Parole Assessment Report. 12 In the Pre Parole Assessment Report it was stated, inter alia: "Preston's victim in respect of his conviction for sexual assault was his then defacto wife. He was paroled in March 1991 and engaged in community based sex offender treatment as a condition of his release. His parole was suspended (and subsequently cancelled) a year later when he (and ­not his defacto) disclosed that he was continuing to force himself upon her. He was not re-released until May 1994, successfully completing this term of parole in April the following year. I would therefore question 'poor previous performance on community supervision' as a valid reason for this request." This passage was not quoted or referred to in the issues paper submitted to the Minister. 13 In relation to Mr Preston's risk of recidivism, the minute noted that he had been administered with a "Warning of liability.." under s 55 of the Act on 8 April 1991 and had offended since that time. It referred to his submission about his rehabilitation and a Ministry of Justice report dated 2 August 1999 which said, inter alia: "PRESTON RESIDES IN THE MINIMUM SECTION (SIC) OF BUNBURY REGIONAL PRISON. STAFF IN ALL AREAS STATE HE IS A FRIENDLY PERSON WHO IS WELL MANNERED, HARD WORKING AND COURTEOUS, CREATING NO ADVERSE REPORTS." "PRESTON UPON INTERVIEW CAME ACROSS AS A FRIENDLY WELL ADJUSTED YOUNG MAN WHO STATES HIS ONLY PROBLEM IS HIS MOTOR VEHICLE RECORD. HE HAS A POSITIVE MATURE OUTLOOK FOR HIS FUTURE AND RELATES THAT HE HAS VERY GOOD SUPPORT FROM HIS GIRLFRIEND." In consideration of these factors it was said to be open to the Minister to find that Mr Preston was at "a medium risk of recidivism". In relation to general deterrence, the minute noted that the offence committed by Mr Preston was driving under suspension and that it was open to the Minister to find that cancellation of his visa would serve as a deterrent factor against others committing similar offences. 14 Under the heading "The Expectations of the Australian Community" it was said: "The offence committed by MR PRESTON is considered by the Government to be serious. The Australian community expects non-citizens to obey Australian laws while in Australia and therefore it is open for you to find that the character concerns or offence are such that the Australian community may expect that MR PRESTON should be removed from Australia." The minute also referred to the best interests of the children and noted that Mr Preston has no children under the age of 18 years. Other considerations mentioned included the effect of his removal on his family and other ties to the Australian community and the absence of any genuine marriage to or de facto or inter dependent relationship with an Australian citizen, permanent resident or eligible New Zealand citizen. 15 The Minister signed a decisional option at the end of the minute which read as follows: "[50] 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 PRESTON'S comments, and have decided that: … (d) I reasonably suspect that Mr PRESTON does not pass the character test and Mr PRESTON 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." The decision to cancel the visa was dated 4 March 2003. The Application for Review 16 On 21 March 2003, Mr Preston filed an application for review and for prerogative and injunctive relief. That application, which was amended by leave, relies upon the following grounds: 'a) In purporting to apply the provisions of s501 and by making his decision to cancel the Applicant's TY 444 Residence Visa and in taking the Applicant into detention for the purposes and with the intention of removing the Applicant from Australia, the Respondent has acted unlawfully and beyond the powers of the Commonwealth. PARTICULARS i. The Applicant was born in New Zealand on 5 March 1961 and at all material times has been a British subject and a citizen of the New Zealand. (sic) ii. The Applicant first arrived in Australia on 7 August 1979 and has thereafter been a permanent resident of Australia. iii. The Applicant has been absorbed into the Australian Community and is no longer a migrant to Australia. iv. The Applicant is not and never has been "an alien" within the meaning of s51(xix) in the Constitution. v. The Commonwealth Parliament has no power to legislate to remove the Applicant from Australia or to hold him in detention pending such removal. vi. The Applicant is not subject to the power purported to be exercised by the Respondent under s501(2) of the Migration Act. vii. The Decisions made to cancel the Applicant's visa and thereafter to take the Applicant into detention were decisions which were not capable or reasonably capable of reference to the power given to the Respondent under ss189, 196 and 501 of the Migration Act as the Respondent's power did not extend to persons in the position of the Applicant. viii. The Respondent has no power to remove the Applicant from Australia or to hold the Applicant in detention. b) The Respondent's decision was made without jurisdiction and is thereby void: PARTICULARS i. The Respondent took into account an irrelevant consideration, namely that the Australian community would expect a person who had been convicted of the offence relied upon (namely driving without a licence, for which the Applicant had received a sentence of 12 months imprisonment), should be removed from Australia in circumstances where that person had been a permanent resident of Australia for more than 20 years and had all his family including daughter and granddaughter (sic), parents, and siblings living in Australia when there was no basis of fact or any material before the Respondent to support such consideration which was based on speculation only. ii. The Respondent failed to accord natural justice to the Applicant by taking into account the speculation that the Australian community would expect the Applicant to be removed from Australia for the offence of driving without a motor licence without first notifying the Applicant that he intended to rely on such speculation. iii. The Respondent failed to accord natural justice to the Applicant by having regard to adverse material contained in a Pre parole assessment report dated 7 September 2000 without giving the Applicant an opportunity to refute or to comment on the adverse material in such report. iv. The Respondent failed to have regard to a relevant consideration namely the continuing relationship between the Applicant and his daughter and grandson and whether that would be adversely affected by reason of the Applicant's removal from Australia.' The relief sought was in the following terms: '1. An Order that the Respondent DO SHOW CAUSE: (a) WHY A WRIT OF PROHIBITION should not be issued out of this Court directed to the Respondent prohibiting him from further proceeding to act on the decision made by the Respondent on 4 March 2003 to cancel the Applicant's visa. (b) WHY A WRIT OF CERTIORARI should not be issued out of this Court directed to the Respondent removing into this Court to be quashed the said Decision made by the Respondent on the 4 March 2003 to cancel the Applicant's visa. 2. An Order that the Respondent be restrained from removing the Applicant from Australia. 3. An Order that the Respondent be restrained from detaining the Applicant for the purpose of removing him from Australia. 4. A Declaration that the Applicant is not liable for removal from Australia or detained for that purpose. 5. IN THE ALTERNATIVE an Order pursuant to s5 of the Administrative Decisions (Judicial Review) Act quashing or setting aside the Decision to cancel the Applicant's visa. 6. Costs. 7. Such other Orders as the Court may consider appropriate.' 17 In the light of the decision of the High Court in Shaw, the applicant did not pursue ground (a). In relation to ground (b) he relied only upon pars (iii) and (iv). Statutory Framework 18 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.' Admissibility of Ministerial Reasons for Decision 19 Before proceeding to consider the remaining grounds for review of the Minister's decision it is necessary to deal with the proposed tender of his reasons for that decision. The Minister's decision was made on 4 March 2003. According to his counsel, he proceeded initially on the basis that the issues paper, read with his decision endorsed thereon, constituted a statement of the reasons required of him by s 501G(1)(e) of the Act. Following Full Court decisions in Minister for Immigration and Multicultural Affairs v W157/00A (2002) 203 ALR 5 and Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 332, the Minister took the position that the issues paper and the decision endorsed thereon did not constitute a written notice in accordance with the requirements of s 501G(1)(e). He has therefore signed a statement of reasons dated 17 June 2003 which is annexed to an affidavit by Mr Corbould, a solicitor in the employment of the Australian Government Solicitor. It is now sought to rely upon those reasons. The admission of the reasons is objected to. 20 In Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 203 ALR 33, I ruled that a statement of reasons produced, in similar circumstances months after the event and after the commencement of judicial review proceedings, was not admissible. In so doing I followed the decision of Hely J in Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069. Counsel for the Minister invited me to revisit the correctness of both Nezovic and Tuncok on the basis that there were two arguments for admissibility of the reasons which were not considered or ruled upon in those cases. 21 The first proposition was that where a statute prescribes the provision of reasons, those reasons if and when properly given are always admissible. The second was that reasons in prerogative writ proceedings are part of the record of such proceedings admissible without the need for them to be under oath. 22 It is not necessary for present purposes to revisit the discussion in Nezovic and Tuncok. It is sufficient to say that I do not accept that reasons for decision produced months after the decision was made and after the commencement of judicial review proceedings are either part of a statutory res gestae as suggested by the applicant or part of the record of the decision under review. That is not to say that such reasons may not be received in an appropriate case by consent. Nor is it to say that they may not be admissible if verified on affidavit. A question may then arise whether the decision-maker producing such reasons should be amenable to cross-examination. That may be a matter of discretion. There is, however, no basis in my opinion upon which the Minister's reasons for decision in this case are admissible other than upon his own oath, or by consent, or possibly by tender on the basis of admissions contained in them. I therefore reject the tender of the proposed reasons. Particulars (i) and (ii) - Expectations of the Australian Community 23 I deal briefly with particulars (i) and (ii) of ground (b) as neither was pressed. Neither gives rise to any issue of jurisdictional error. The 'Expectations of the Australian Community' is a term used in the Ministerial Direction and invoked in the departmental issues paper submitted to the Ministry in March 2003. It invites a judgment akin to judgments about the 'public interest' which is necessary evaluative and conclusionary in character and not amenable to challenge or judicial review on its merits. It is not open to an applicant to advance, in judicial review proceedings, a contention that the Minister's conclusion about the 'Expectations of the Australian Community' is wrong and that the conclusion reached is therefore 'an irrelevant consideration' giving rise to jurisdictional error. The second particular of ground (b) relating to the expectations of the Australian community raises a natural justice question. It seems to suggest that procedural fairness would require the Minister to invite comment from the applicant on his conclusions about the expectations of the Australian community in the circumstances of the case before making his decision. That is not a requirement of procedural fairness. A decision-maker is not required to expose his or her reasoning process for comment by a person affected before making a decision provided of course that all the other aspects of procedural fairness have been addressed. 24 There is no merit in particulars (i) and (ii) of ground (b) and quite properly they were not pressed. Particular (iii) - Reference to Adverse Material in Pre Parole Report 25 In [39] of the issues document there is a statement, evidently to be attributed to the decision-maker that he has had regard to certain listed materials. One of those materials, identified as Annex G, was 'the Ministry of Justice Report and Mr PRESTON's Pre Parole Assessment report'. Counsel for the applicant submitted that that material included a significant adverse statement made in the Pre Parole Assessment report that the applicant's parole had been revoked in 1992 because he continued to commit sexual assaults upon his wife. Mr Preston denied that the statement was true. It was said that he was not aware of it and was not given any opportunity to refute it before the decision was made. It was information personal to him and involved allegations of very serious criminal conduct. It came from a credible source which the respondent would not have any reason to ignore or disbelieve. 26 The passage in question from the Pre Parole Assessment report has been set out earlier in these reasons at [12]. As can be seen from that passage, the observation was made in the context of a favourable comment upon Mr Preston. 27 It was submitted for the respondent that the relevant sentence is the third sentence of the second paragraph of the Pre Parole Assessment report. It refers to events which date back to 1992 and should be read in the context of the letter as a whole which was supportive of Mr Preston. It was also submitted that it was highly unlikely in the circumstances of this case and the general context of decision-making by the respondent, who has to deal with numerous deportation matters, that this played any distinct role in the decision arrived at. The endorsed issues paper did not mention the matter in issue. Given the material otherwise available to the respondent it was said to attract the comments of Brennan J in Kioa v West (1985) 159 CLR 550 at 628 that persons whose interests are likely to be affected by administrative decisions do not have to be given an opportunity to comment on every adverse piece of information irrespective of its credibility, relevance or significance. Counsel for the applicant on the other hand pointed out that there is a distinction to be drawn between the parole officer's treatment of this material and how the respondent may have treated it. 28 The content of procedural fairness is to be judged by practical considerations rather than purely theoretical criteria. This is implicit in what Brennan J said in Kioa and was made explicit by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 511: 'Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.' This is an application of the general proposition that the content of procedural fairness will vary according to the circumstances of the case. In my opinion when read in context and against the balance of the matters considered in the issues paper, the sentence complained of was unlikely to have had any practical effect, adverse to Mr Preston, upon the Minister's consideration. I should add that there was no evidence that the Minister did give it any weight in his consideration. In my opinion this ground does not succeed. Particular (iv) - Failure to Have Regard to a Relevant Consideration 29 Counsel for Mr Preston submitted that the Minister made his decision on the basis of advice that he had no children under the age of 18 years and, by implication, that the Convention on the Rights of the Child was not applicable. However, it was said, that Convention relates to children per se, not to Mr Preston's children. The Minister was said to have been aware that the applicant had a young grandchild who potentially might be affected by his removal from Australia. If the Minister had considered that he ought to take into account the rights of that child as a primary consideration, he might well have sought to make further inquiries as to the effect that the applicant's removal would have on the child. Those inquiries, it was said, would have revealed further information that such child is indeed likely to be adversely affected by the applicant's removal from Australia. 30 It was submitted that Mr Preston's affidavit shows that further inquiries may have revealed that the applicant's daughter had drug addiction problems thereby affecting her capacity as primary carer and that her young child, who may be autistic, was being looked after by the applicant's parents, ie the child's great grandparents with assistance from the applicant and his de facto. The removal of the applicant from Australia would affect his ability to assist both his parents and his daughter in their care of the daughter's baby. This was said to be a relevant factor for the respondent to consider if he properly took into account the interests of the child. In my opinion, the answer to this contention is that the applicant himself had addressed family issues in his written submission of 16 December 2002. He did not advise the department of the matters set out in par 15 of his affidavit which were referred to in the submissions just cited. It is, in any event, highly questionable that the matter advanced as a 'relevant consideration' in this case is a mandatory consideration of the kind that would support the contention that the Minister had made a jurisdictional error in failing to have regard to it. In my opinion, this ground of review cannot succeed. Conclusion 31 For the preceding reasons, the application will be dismissed with costs. I certify that the preceding thirty one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French..

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 27 June 2003 and 12 December 2003