Taylor v Minister for Immigration & Multicultural & Indigenous Affairs

THE COURT 1 The appellant is a UK national. He arrived in Australia on 17 February 1980, aged 34. He and his wife have since made their home in Australia. They have four children, two born in Australia, all of whom are now over 18. They have three grandchildren. The appellant's wife, children and grandchildren are all Australian citizens. Until it was cancelled, the appellant held a Transitional (Permanent) Class BF visa (the visa) which entitled him to stay indefinitely in Australia. 2 The visa was cancelled by the then Minister for Immigration & Multicultural & Indigenous Affairs (the Minister) on character grounds under s 501(2) of the Migration Act 1958 (Cth) (the Act) on 21 December 2001. That decision was a 'privative clause decision' as defined in s 474 of the Act and so immune from judicial review, unless it was infected with jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. An application to the Court to quash the decision for jurisdictional error was refused: Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1081. This is an appeal from that decision. 3 Section 501(2) permitted the Minister, in his discretion, to cancel the visa if he reasonably suspected that the appellant did not pass the character test (as defined in s 501(6)) and if the appellant did not satisfy the Minister that he passed the character test. There was no issue that the discretion under s 501(2) was enlivened by reason of the appellant's substantial criminal record. The attack upon the Minister's decision related to his exercise of the discretion then available to him to cancel the visa. 4 The appellant at first instance asserted jurisdictional error in two respects: (1) the failure to accord natural justice to the appellant by failing to have regard to the interests of his wife, children and grandchildren and the hardship they would suffer if he were to be returned to the United Kingdom by the break-up of the family unit; and (2) the failure to have regard to, and apply, the principles of Article 23 of the International Covenant in Civil and Political Rights (the ICCPR) and of the Convention on the Rights of the Child (the CROC), respectively entered into force on 13 November 1980 and 16 January 1991, without first notifying the appellant that the Minister did not intend to have regard to those instruments. 5 Both the application at first instance and this appeal appear to have proceeded on an unsatisfactory basis. Under s 501G(1) of the Act, the Minister when notifying the appellant of the decision to cancel the visa was obliged to give his reasons for the decision. (There is no suggestion that the reasons concerned 'non-disclosable information': see s 5). No reasons for decision were then given, despite s 501G(1). That matter was raised in the course of argument on the appeal. Subsequent written submissions from counsel for the Minister indicated that a statement of reasons was signed by the Minister on 20 September 2003, some 21 months after the decision, and was provided to the appellant under cover of a letter dated 26 September 2003 as well as being sent by facsimile to the former solicitors for the appellant on 30 September 2003. That was nevertheless well before the hearing at first instance. Those assertions in submissions were not contested by the written submissions in reply by counsel for the appellant. We accept they are correct. 6 However, the reasons for decision were not presented as part of the material at the hearing at first instance or on the appeal. Indeed, it seems to have been put to the learned judge at first instance that there were no reasons for the decision given. Much of the judgment at first instance addresses two issues. Firstly, whether the 'Issues Document' presented to the Minister for consideration when addressing s 501(2) constituted the Minister's reasons for his decision. His Honour found it did not. And secondly whether the Minister's reasons for his decision could be inferred from the 'Issues Document'. His Honour was prepared to do so. He concluded that the particular complaints of jurisdictional error were not made out because it could not be inferred that the Minister had failed to have regard to the two matters which (the appellant argued) he was obliged to consider and had not considered. His Honour was prepared to assume, without deciding, that the ICCPR and the CROC gave rise to particular matters to which the Minister was obliged to have regard, or at least to do so unless the appellant had been notified that the Minister did not intend to do so. 7 It is clearly unsatisfactory that the Court should be required to infer the reasons for decision of the Minister from departmental documents if the Minister has or may have failed to comply with s 501G(1) of the Act. No doubt, in the event of such a failure, one option is for the Court to proceed to infer the reasons from the 'Issues Document' as was done at first instance: see also Minister for Immigration & Multicultural & Indigenous Affairs v W157/00A (2002) 125 FCR 433. However, as has now been indicated, it was not necessary to do so in this matter. The appellant should not have permitted, or invited, the judge at first instance to do so when reasons for the decision had been provided to him. Nor should the Court, on this appeal, be invited to do so. 8 Counsel for the Minister, in written submissions, suggested that neither the appellant nor the Minister put the Minister's reasons for the decision to cancel the visa before the Court at first instance in somewhat peculiar circumstances. It is understandable why they may not have been relevant when the application was first made. At that time the only ground of jurisdictional error alleged (as appears from the 'Substituted Application' then before the Court) was that the decision was beyond power because the appellant had been absorbed into the Australian community and was no longer 'an alien' so as to be vulnerable to cancellation of the visa under s 501 or to fall into the category of aliens in respect of whom an enactment under s 51(xix) of the Constitution might prescribe circumstances for their removal from Australia. The Minister's reasons may not have been relevant to that issue. However, by the time of the hearing at first instance, the grounds of the application required consideration of the Minister's reasons because the appellant by then sought to amend the grounds of his application. 9 The reasons are dated some 21 months after the decision. In such circumstances, the statement of reasons should not be received in evidence unless verified by affidavit or received by consent: Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069; Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2003) 133 FCR 190; and Preston v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 107. There was in this matter no apparent attempt to establish the genuineness of the document recording the reasons. 10 In our view, in those circumstances it was incumbent upon the parties to bring to the attention of the learned judge at first instance the fact that reasons for the decision under s 501 had been given by the Minister. If, by reason of the lapse of time between the decision and the giving of the reasons for decision, the appellant was not prepared to consent to those reasons being before the Court, we consider those representing the Minister should establish their status by verifying affidavit. Our reason for that view is simply that, had s 501G(1) of the Act been complied with, the reasons of the Minister would have accompanied the notice of the decision to cancel the visa and there would have been no issue as to their status. 11 On the appeal, however, the position remained as it was at first instance. The reasons of the Minister for his decision are not before the Court. It is necessary to consider the appeal in that context. 12 The notice of appeal had eight grounds. Counsel appearing for the appellant indicated at the commencement of the hearing that those grounds of appeal were not pursued. He sought leave to amend the notice of appeal by substituting four different grounds of appeal. They were that the learned judge at first instance: (1) failed to take into account that a relevant matter to the Minister's decision was a duty to consider the impact of s 60(B) and ss 72 and 79 of the Family Law Act 1975 (Cth) (the FL Act); (2) failed to take into account that the Minister was under a duty to make inquiries with respect to those matters referred to in (1) above and or matters of the same nature referred to in direction issued by the Minister; (3) failed to take into account that the Minister had not conducted the inquiries referred to in (2); and (4) failed to take into account that the appellant was denied procedural fairness in that the Minister failed to give the appellant an opportunity to comment on the decision to not take into account his grandchildren's best interests, nor to take into account the appellant's potential liabilities to maintain and support his spouse. 13 The appeal first came on for hearing before the Full Court (differently constituted) on 21 February 2005. The appellant was self-represented. He sought and was granted an adjournment of the appeal: see Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 48. There were two grounds for the adjournment. The first was that the counsel who had been retained pro bono to appear on the appeal had only shortly before the hearing been given leave to withdraw. The second was that the appellant proposed to commence proceedings in the Supreme Court of Western Australia to set aside his conviction in 2000 for offences which, in part, formed the basis for the appellant not satisfying the character test under s 501(2) of the Act. There is nothing before the Court as presently constituted to suggest that the proposed proceeding was commenced or, if it was, that it is still current. The appellant is again now represented pro bono by different counsel. 14 We would refuse leave to the appellant to amend the notice of appeal to substitute the four proposed grounds of appeal on the basis that there is no real prospect that any of them can succeed. Our reasons for that conclusion are set out below. We would also refuse leave to amend the notice of appeal as sought because the appellant seeks to assert that the Minister failed to take into account certain matters which he was required to take into account, but the appellant has still taken no steps to have the Minister's reasons for the decision put before the Court. We do not see why the Court should be called upon to infer from the Issues Document what those reasons were when reasons for the decision exist, and so be asked to conclude (perhaps in error if the reasons for decision were before the Court) that the Minister did or did not take into account the matters the subject of the proposed amended grounds of appeal. (We intend no criticism of counsel now appearing pro bono for the appellant. He did not appear at first instance, and was retained only shortly before the hearing. His submissions indicate that he himself was not aware that reasons for the Minister's decision had been given.) That being the case, as the grounds of appeal in the notice of appeal were not pursued, the appeal itself must be dismissed with costs.