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[2005] FCAFC 208
Federal Court of Australia (Full Court)
2005-09-30
Siopis JJ
Original judgment source is linked above.
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.
15 The written submissions of the appellant subsequent to the hearing make clear that the first proposed ground is in reality that the Minister did not take into account the matters referred to in ss 60B, 72 and 79 of the FL Act when he was obliged to do so. 16 Section 60B of the FL Act sets out the objects of Pt VII of the FL Act. It concerns the powers and functions of the Family Court concerning children, and includes the making of parenting orders about children. It is an introductory provision. It does not itself create any rights or impose any liabilities upon parents or children. It lays down principles generally applicable to ensure children receive adequate and proper parenting and, as s 60B(2) makes clear, those principles apply except where it is or would be contrary to the children's best interests to do so. Section 72 provides for the circumstances in which there is a right of spousal maintenance, and s 75 prescribes matters to be taken into consideration when the Family Court is addressing a claim for spousal maintenance. Section 79 of the FL Act deals with the powers of the Family Court in proceedings with respect to the property of the parties to a marriage, including under s 79(4) matters that the Court must take into account in making orders which may alter property interests of the parties to a marriage. 17 None of those provisions constitute matters which, in the exercise of the power under s 501(2) to cancel the appellant's visa, the Minister was bound to take into account. The identification of relevant considerations to the making of such a decision is to be determined by reference to the Act: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 39-40; Abebe v Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at 579. We do not consider that there is anything in the Act which obliged the Minister, in the exercise of power under s 501(2), specifically to take into account the powers and impositions upon the exercise of powers by the Family Court under those provisions. Nor is there anything in the specific provisions of the FL Act referred to which indicates that they constitute a direction to the Minister, when exercising the discretion under s 501(2) of the Act, to have regard to their provisions. On their face, they do not address how such a decision should be made. They prescribe the circumstances in which the Family Court may make certain orders, and the factors it must address in the process of doing so. 18 The proposed ground of appeal was a refined one, limited specifically to the 'impact' of those provisions of the FL Act. More generally, under s 499 of the Act, the Minister gave a direction on 23 August 2001 as to circumstances relevant to the exercise of the discretion to cancel a visa: 'Direction - Visa Refusal and Cancellation under Section 501 - No.21' (the Direction). Although the Minister was not bound by the Direction, the Issues Document presented to the Minister referred to the matters prescribed in the Direction, including the best interests of the children, and the potential disruption of the family. The material submitted to the Minister included submissions from the appellant, the appellant's wife and one of his children addressing those matters. The appellant has not contended that that material was not taken into account by the Minister when making the decision to cancel the appellant's visa. 19 The second and third proposed grounds of appeal are in part derivatives of the first proposed ground of appeal. For the reasons given, in our view, they too must fail. They also raise the more general issue as to the inquiries conducted by the Minister. The written submissions limit the contention to inquiries regarding the impact of the proposed decision upon the appellant's grandchildren. The Issues Document acknowledged the submissions from the appellant's wife and son. It referred to the potential disruption of the family unit, including the grandchildren. The Issues Document noted that the appellant has a spouse, four adult children, three grandchildren and parents-in-law all in Australia. The written submissions contended that the Minister ignored the best interests of the grandchildren, and that their interests should have been a 'primary consideration'. Even if (as counsel for the appellant contended) the Issues Document contains the reasons for decision of the Minister, it does not support the conclusion that the Minister did not take into account the best interests of the appellant's grandchildren. It was a matter for the Minister then to accord that factor such weight as he regarded as appropriate in making his decision. There may be circumstances in which the Minister may have an obligation to make inquiries about a particular matter (see e.g. per McHugh J in Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 321; Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151; (2004) 206 ALR 488 at 508, [83]). There is no material upon which it could be maintained that such an obligation was enlivened in this matter. The issues focused on by counsel for the appellant: child (and grandchild) support, spousal maintenance and property interests, and the interests of the grandchildren, were all matters upon which the appellant could have adduced further information during the process leading up to the completion of the Issues Document. If the material on those matters was sparse or absent, the circumstances were not such as to oblige the Minister to procure the expansion of that material. It was readily within the power of the appellant to have done so. 20 The final proposed ground of appeal is premised upon the Minister not having considered the best interests of the appellant's grandchildren or the appellant's obligations to maintain and support his spouse. We have indicated above that, on the material before the Court, it is not shown that the Minister failed to consider the best interests of the appellant's grandchildren. There was no claim that the appellant's spouse would be disadvantaged by the loss of support from the appellant if his visa were cancelled. That issue might readily have been raised by the appellant, or by his spouse, but it was not. The submission from the appellant's spouse pointed out the awful choice she would have to make between staying with the appellant and so becoming geographically remote from her parents, her children and her grandchildren, or staying in Australia. It did not raise any issue as to her need for continued maintenance and financial support from the appellant. In those circumstances, in our view, the Minister was not obliged expressly to raise with the appellant or the appellant's spouse that issue, and to give them the opportunity to address it. As the concluding section of the Issues Document indicated, the appellant raised 'significant compassionate circumstances for remaining in Australia … centred on the length of time he has resided in Australia and his spouse and family …'. There is no foundation for concluding that the Minister did not have regard to that claim, or that the appellant and his family were not given the opportunity to present material in support of that claim or any other related matter they considered was relevant in the circumstances. 21 For those reasons, as we have indicated, we would refuse leave to further amend the grounds of appeal. We would dismiss the appeal and order the appellant to pay to the Minister costs of the appeal. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Mansfield and Siopis.
Dated: 29 September 2005 Counsel for the Applicant: MF Rynne (Pro Bono)
Solicitor for the Respondent: Australian Government Solicitor
Date of Judgment: 30 September 2005
Taylor
Minister for Immigration & Multicultural & Indigenous Affairs
(2003) 211 CLR 476
(2002) 125 FCR 433
(2003) 133 FCR 190
(1986) 162 CLR 24
(1999) 197 CLR 510
(1995) 183 CLR 273
(2004) 206 ALR 488