Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs

Denial of procedural fairness 30 It was not in dispute that the Minister was required to afford the applicant natural justice as part of the process of considering the cancellation of his permanent visa. Rather, the issue is whether in the circumstances of the present case what was done was consistent with the obligation of the Minister to act fairly. 31 In Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [101] McHugh J said: 'One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.' 32 In Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [123] McHugh J said: 'Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power. This does not mean that the source and nature of all material that comes before the decision-maker must be disclosed. But "in the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made." What is required to discharge this duty depends on the circumstances of the particular case.' (citations omitted) 33 A person in the position of the present applicant is entitled to have his or her mind directed to the critical issues or factors on which the Minister's decision is likely to turn in order to have an opportunity of dealing with those matters: Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591. He is entitled to know what factors the Minister will take into account in coming to a decision on whether or not to cancel the visa: R v Home Secretary; Ex parte Doody [1994] 1 AC 531 at 563. 34 If a breach of the rules of natural justice is established an applicant would ordinarily be entitled to relief unless the Court was satisfied that the breach could have had no bearing on the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Review Tribunal; Ex parte Aala (supra) at 116-117. Accordingly, I reject the submission put by the solicitor for the Minister that this application must fail because of the failure on the part of the applicant to demonstrate by evidence that some practical unfairness accrued to him as a result of the procedures which were adopted. If the applicant was not informed of the case which he had to meet, that is sufficient to establish 'practical injustice' without the applicant having to prove what he would have done had he been informed of that case. Re Minister for Immigration & Multicultural Affairs, Ex parte Lam (2003) 195 ALR 502 does not decide otherwise: NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52, at [31]; VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at [25]: Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497 at [61]. 35 It was not submitted that the requirements of procedural fairness could only be satisfied by the provision of a copy of the Issues Paper to the applicant and by allowing him an opportunity to comment on the matters referred to in that paper prior to the Minister's decision. In Dagli Hill J held that the Minister was under no such obligation (at [47]); I came to the same conclusion in Firlayis v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 725 at [25], but without being referred to the decision in Dagli which had been given some two months earlier. However, the applicant contends that a case was put against him in the Issues Paper and he was denied procedural fairness in not being informed of that case. In particular, the applicant complains that he was never made aware that DIMA would put to the Minister that general deterrence and the expectations of the Australian community would be matters regarded by DIMA as favouring the cancellation of his visa, nor was he given an opportunity to respond. Particular reliance is placed in this respect upon pars [26], [28] and [30] of the Issues Paper. 36 The applicant was informed by the letter of 8 July 2002 that matters which the Minister would take into account in reaching his decision included the applicant's criminal history, the judge's comments, and the Ministerial Direction. The applicant was warned that the Minister would take into account the seriousness of the offences which the applicant had committed, and, in any event, it was necessarily inherent in the issue that the Minister was deciding that the seriousness of the offences would be the subject of consideration. 37 In the Issues Paper, under the heading 'seriousness and nature of the conduct', there are selective quotations from the remarks on sentence of Judge Payne. The parts of the judge's summation which are quoted are those which directly bear on the seriousness and nature of the conduct, that being the topic under consideration in this section of the issues paper. Those portions of Her Honour's remarks relating to the applicant's personal circumstances which explain why she imposed a lesser sentence than the four to five years referred to in the guideline judgment have not been quoted, although the whole of Her Honour's comments were attached to the Issues Paper. 38 If there is a 'case' made against the applicant in this section of the Issues Paper it is that on the basis of the applicant's criminal history, his conduct against the community is serious. That 'case' is based upon the applicant's criminal record, the description by the sentencing judge as to the circumstances of the crime and the terms of the Ministerial Direction. The applicant had been notified that these matters would be taken into account by the Minister. His letter of 12 July 2002 indicates an appreciation on his part that the seriousness and nature of the conduct is a matter which the Minister would address. The letter accepts that the charge of robbery while armed with an offensive weapon is of a serious nature. The general thrust of the letter is to point to hardship flowing to the applicant and others if his visa is cancelled, and to circumstances indicating that the likelihood of the applicant re-offending is remote. 39 There was no want of fairness in that 'case' being put to the Minister, as the applicant had been warned that the seriousness of the offences would be a relevant factor, and he had been told that the two offences in question were of a type regarded by the government as serious. He was afforded an opportunity to put what he had to say on this issue, an opportunity of which he took advantage. 40 The second section of the Issues Paper addressed the question of the likelihood that the conduct may be repeated (including any risk of recidivism). If there is a 'case' made in this section of the Issues Paper, it is that the applicant has a moderate risk of recidivism. Again, the issue of recidivism was one which the applicant was informed that the Minister would address and the applicant's letter of 12 July 2002 indicates that the applicant fully understood this to be so. As indicated earlier, his letter responds to this issue. 41 At the highest, the observations in par [26] of the Issues Paper are a departmental evaluation of the risk of recidivism based on materials disclosed to, or emanating from the applicant. The assessment concerned a matter which the applicant had already addressed. Procedural fairness does not normally require a decision-maker to disclose the decision-maker's thinking process or proposed conclusions: Aronson & Dyer Judicial Review of Administrative Action (2nd ed) at 420. The Issues Paper is an integral part of the decision-making process itself, and is not to be equated with information obtained from a third party about the applicant which is required to be disclosed to him in accordance with ordinary principles: Bushell v Secretary of State for the Environment [1981] AC 75 at 95-96 (Lord Diplock) and cf Kioa v West (1985) 159 CLR 550, 587 (Mason J). In R v Secretary of State for Education; Ex parte S (CA) [1995] 2 FCR 225, Russell LJ said at 231-232: 'The basic proposition of Mr Richards in this appeal was to the effect that the process of government necessarily involves civil servants engaging in a host of consultative exercises inter se, applying their individual expertise and experience to a given problem. The ultimate decision of the Minister in a case where there has been such consultation is a matter of judgment for the decision maker. How he reaches his decision is essentially a matter for him. It may involve extensive "in house" consultation, but, provided the process does not involve a new point with which the interested parties have had no opportunity of dealing, there is no duty to disclose material the product of the consultative process. The concept of fairness does not normally require disclosure. If it does then there should be disclosure. That will only arise in the most exceptional circumstances not applicable to the instant case. For my part I accept these submissions, and I find considerable support for them in Bushell and Another v. Secretary of State for the Environment [1981] A.C. 75.' This is not a case (as was Kioa v West) where the departmental submission contained materials which had not been disclosed to the applicant, as opposed to the Department's assessment of known materials on an issue which the Minister's Direction had identified as a critical issue: see Aronson & Dyer (supra) at 426. In Kioa v West at 588, Mason J observed that material which consists of 'policy, comment and undisputed statements of fact' does not call for a chance to reply. 42 The failure to disclose to the applicant the DIMA assessment (viewing the matter most favourably to the applicant) that the applicant has a moderate risk of recidivism does not involve a want of procedural fairness. 43 The third section of the Issues Paper addressed that question of general deterrence. If there is a 'case' made against the applicant in this section it is that cancellation of the applicant's visa would serve as a deterrence factor against others committing offences similar to Robbery Armed with Offensive Weapon and Make False Instrument. That 'case' is based on the applicant's criminal record, and the terms of the Ministerial Direction. 44 Again, the issue of general deterrence was one which the applicant was informed that the Minister would address and the applicant's letter of 12 July 2002 indicates that the applicant fully understood this to be so. The letter responds to this issue. The letter accepts that the cancellation of the visa may well achieve general deterrence, but submits that the same effect could be achieved by the threat of cancellation. There was no want of fairness arising from the inclusion of par [28] of the Issues Paper. 45 The fourth section of the Issues Paper addressed the expectations of the Australian community. If there is a 'case' made against the applicant in this section, it is that the offences are such that the Australian community may expect that the applicant should be removed from Australia. 46 Again, the applicant was warned by the Ministerial Direction that this is a matter which the Minister would take into account, and par [2.12] of the Ministerial Direction (quoted above) specified what the expectations of the Australian community are. The applicant's letter of 12 July 2002 does not address this issue, but that does not deny that his attention was drawn to this as a 'critical issue or factor on which the administrative decision is likely to turn' (Kioa v West (supra) at 587, per Mason J) or that he did not have an opportunity of dealing with it. 47 There was no want of fairness arising from the inclusion of par [30] of the Issues Paper. At the highest, the observations in par [30] of the Issues Paper are a departmental evaluation of the application of par [2.12] of the Ministerial direction to the offences committed by the applicant. The applicant was warned that the Minister would embark upon such an evaluation, and was invited to comment on it. 48 On the facts in Dagli, Hill J came to the conclusion that merely providing the applicant with a copy of the Minister's Direction, and warning the applicant that the matters in it would be taken into consideration was not a sufficient compliance with the requirements of procedural fairness. I have no reason to doubt, with respect, the correctness of the conclusion which his Honour reached on the facts of that case. But his Honour's conclusion was one of fact, rather than an enunciation of any general principle. The issue is what fairness requires in the circumstances of the particular case. In Dagli the 'case' put in the Issues Paper was based upon a number of specific matters which the applicant may well have been able to meet had he known they were to be relied upon. This case is different, because if a 'case' was put in the Issues Paper, it was based upon facts which the applicant had been warned the Minister would take into account. 49 There is nothing in the decision of the High Court in Ex parte Palme which provides any support for the applicant's submissions in this respect.

Failure to give reasons 50 Section 501G(1)(e) requires that if a decision is made under s 501(2) to cancel a visa that has been granted to a person, the Minister must give the person a written notice that (amongst other things) sets out the decision and the reasons for the decision. The Act does not specify any particular period in which the written notice is to be given, but there is a clear legislative intention that the reasons are to be given concurrently with the notification of the decision. The notice of cancellation of the visa given on 22 October 2002 was deficient inasmuch as it failed to give reasons for the decision notified in the letter. 51 Section 501G(4) provides as follows: '(4) A failure to comply with this section in relation to a decision does not affect the validity of the decision.' That section is a clear expression of a legislative intention that a failure to give written notice of the reasons for a decision does not invalidate the decision itself: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 390. Halmi v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 1 at [42] (Hill J) and Misiura v Minister for Immigration & Multicultural Affairs [2001] FCA 133 at [28] (Madgwick J) decided that the effect of s 501G(4) is to prevent a decision such as the present being undone for failure to set out the reasons for it. 52 The decision of the Full Court in Ayan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 7 proceeds upon the basis that there is a continuing obligation to provide reasons after notification of a decision to cancel a visa. In that case an interlocutory order was made by a majority of the Full Court requiring the provision of reasons some 14 months after the original notification of the decision to cancel the visa. The decision in Ayan is inconsistent with the notion that a failure to provide reasons in some way invalidates or nullifies the decision in question. 53 The applicant submits that while s 501G(4) provides that the failure to give reasons per se does not invalidate the decision, that is no reason to suppose that the failure to comply with the obligation to give reasons may not indicate some other basis on which the decision may be challenged. In the applicant's submission, the failure to give reasons:

• may indicate a breach of procedural fairness;
• may indicate that the Minister misunderstood his task to make a reasoned decision: Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 81 [80] per Gaudron J; and
• is an error of law, and thus a jurisdictional error. In principle, I agree with the proposition that the failure to give reasons may indicate some other basis on which the decision may be challenged, and s 501G(4) does not deny that possibility. 54 The first of the above propositions is inconsistent with Public Service Board (NSW) v Osmond (1986) 159 CLR 656. The rules of natural justice govern the way in which a decision affecting a persons rights or interests is made, not the way in which it is communicated. In any event, the duty to provide reasons in the present case derives from the Act, and the consequences of a breach of the Act are a matter of statutory construction. I was referred to the decision of McInnes FM in Griffiths v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 249 where his Honour held that a failure to give reasons in the present context is a breach of the rules of natural justice and that the Minister's decision is a nullity. I disagree, with respect, with that conclusion, and observe that it is inconsistent with the decision of the Full Court in Ayan. 55 The second proposition involves an exaggeration of the factual situation. The evidence does not establish a failure on the part of the Minister to appreciate that his task was to make a reasoned decision. At best for the applicant, the evidence establishes a failure on the part of the Minister (or his advisers) to appreciate that the 'decision record' was not a statement of the Minister's reasons. 56 As to the third proposition, Dornan v Riordan (1990) 24 FCR 564 at 574 and Murray v Legal Services Commissioner (1999) 46 NSWLR 224 at [98] are authorities for the proposition that a failure to state reasons where a statement of reasons is a requirement of the exercise of a power under a statute, constitutes an error of law. However, not every error of law gives rise to a jurisdictional error. There may be errors of law within jurisdiction: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, at [57]. Unless s 501G(4) is constitutionally invalid, it would preclude a conclusion that failure to give reasons was a jurisdictional error: see Uranek v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 37 at [29]. No submissions were put to me to the effect that s 501G(4) is constitutionally invalid, although I was informed that there was some discussion in argument of this question in Palme (supra). 57 Reliance was placed by the applicant on the decision of Lee J at first instance in W157/00A v Minister for Immigration & Multicultural Affairs (2002) 190 ALR 55. In that case Lee J held that s 501G(4) did not detract from an applicant's statutory or constitutional rights to have a decision reviewed. Applying the decision of Gaudron J in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (supra) at [102-104] his Honour said that the purpose of sections such as s 501G(4) is to ensure that an applicant's rights are to be ascertained by reference to the Minister's decision unless and until set aside. His Honour declined to follow the decisions of Hill J and Madgwick J referred to above upon the basis that the decision in Ex part Miah dictates that reasoning different from that followed in those decisions is to be preferred. There was no appeal from this aspect of his Honour's decision: Minister for Immigration & Multicultural Affairs v W157/00A [2002] FCAFC 281 [27]. 58 Lee J expressed the tentative conclusion that failure to give a written notice that sets out the reasons enlivened the ground of review identified in the former s 476(1)(a) of the Act. The Full Court disagreed with that conclusion having regard to the observations of McHugh, Gummow and Hayne JJ in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [77]. 59 Section 501G(4) is in quite different terms from s 69 of the Act which was the focus for the observations of Gaudron J in Ex parte Miah. In my respectful opinion the effect of s 501G(4) is that failure to give reasons cannot per se establish jurisdictional error. 60 The majority of the High Court so held in Ex parte Palme at [46] and [55]. 61 So far, I have proceeded on the assumption that the Minister has not given reasons for his decision. If the 'issues' paper and the decision recorded in Section E alone constituted the Minister's 'reasons', then this assumption would be consistent with the decision in Ex parte Palme at [40] and [54]. However, the Minister has tendered a document signed by the Minister and bearing the date 4 June 2003 styled 'Statement of Reasons - The cancellation of Mr Tuncok's Resident Return visa pursuant to s 501(2) of the Migration Act 1958 which purports to set out the Minister's best recollection of the Minister's reasons for his decision of 15 October 2002. The issue is whether that document is admissible. 62 Minister for Immigration & Ethnic Affairs v Taveli (supra) at 168 and 187 decided that an unverified statement by a Minister given under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act) was not admissible in evidence on a tender by counsel for the Minister. The statement under s 13 of the ADJR Act did not itself form part of the decision making process. Were the statement of reasons under s 13 part of the decision making process itself those reasons would then be admissible as part of the res gestae: see Hill J at 187. 63 In the present case, the statement of reasons was prepared in obedience to the continuing obligation under s 501G of the Act, but they are not in any meaningful sense part of the decision-making process so as to fall within the res gestae exception to the hearsay rule. To fall within that exception, the statement of reasons must accompany the decision or be substantially contemporaneous with the decision. Here, the statement of reasons was provided some eight months after the decision to which they relate. Accordingly, the statement of reasons will only be admissible under one of the statutory exceptions to the hearsay rule. 64 The Evidence Act 1995 (Cth) ('the Evidence Act') defines 'Commonwealth record' in the dictionary as including, relevantly, a record made by a person holding office or exercising power, under or because of the Constitution or a law of the Commonwealth. The statement of reasons is thus a Commonwealth record. Section 155 of the Evidence Act provides that evidence of a Commonwealth record may be adduced (inter alia) by producing a document that purports to be such a record and to be signed by the Minister. A photostat copy of such a document was produced in the present case, but no objection was taken on that account. But that does not mean that every Commonwealth record is admissible in all proceedings. The effect of s 155 is to facilitate proof of records which are otherwise admissible. Section 155 is not a general exception to Chapter 3 of the Evidence Act in relation to admissibility of evidence. No provision of the Evidence Act other than s 155 was relied upon by the solicitor for the Minister. 65 The statement of reasons is inadmissible by virtue of s 59 of the Evidence Act, unless one of the exceptions to the hearsay rule applies. One such exception is that provided for in s 69 in relation to business records. Section 182 of the Evidence Act has the result that the provisions of s 69 apply in relation to documents which are Commonwealth records. It was not submitted that ss 69(1) or (2) were not satisfied. However, s 69(3) excludes from proof representations made in a document if the representation: 'was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with an Australian or overseas proceeding.' 66 I have no direct evidence as to the purpose for which the statement of reasons was prepared. I infer that it was prepared as a belated attempt to comply with the Minister's continuing duty under s 501G(1). However, the document was prepared after the institution of these proceedings, and was tendered by the Minister in these proceedings. I infer that one of the purposes underlying the preparation of the statement of reasons was for use in these proceedings. The statement was thus prepared 'in contemplation of' or 'in connection with' the litigation, even if the document is prepared with several purposes in view: Vitali v Stachnik [2001] NSWSC 303 at [18] per Barrett J. 67 As no other ground of admissibility was advanced, I reject the tender by the Minister of his statement of reasons, and I reject the affidavit of Mr Marcus sworn on 18 August 2003.

Wednesbury unreasonableness 68 In the applicant's submission the cancellation of the visa of the applicant who has lived in Australia since six years of age, whose immediate family including his surviving parent (his mother) are all in Australia and who has no family in Turkey, is legally unreasonable. The applicant submits that he is effectively being punished for his parents' failure to take out citizenship for him when he was a child, although his mother applied for, and was granted, Australian citizenship on 18 January 1982. 69 The power to cancel the applicant's visa is available to the Minister because he is not an Australian citizen. His mother could have included him in her application for citizenship but did not do so. The applicant himself could have applied for citizenship subsequently, but did not do so. The fact that the applicant has spent most of his life in Australia is highly relevant to the decision which the Minister had to make, but it cannot lead to the conclusion that the applicant is being punished for these omissions to apply for citizenship. Nor can it lead to the conclusion that the only decision reasonably open to the Minister was a decision not to cancel the applicant's visa: see Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [73]. 70 The applicant failed the character test. He had convictions for at least two serious crimes. An available view is that the change in circumstances since the applicant arrived in this country from Turkey as a child is that he is now Australia's problem, rather than Turkey's. But this is not the only view which is rationally available, and it was for the Minister to decide whether the balance was in favour of cancellation of the visa or otherwise. The applicant's contention is, in effect, that the Minister struck the wrong balance. That contention impermissibly invites merits review. It does not establish Wednesbury unreasonableness. McInnes FM came to a contrary conclusion in a similar (but not identical) fact situation in Griffiths v Minister for Immigration & Multicultural & Indigenous Affairs (supra), but I do not agree with that view. 71 The conclusion which I have reached in this respect is consistent with the decision in Ex parte Palme at [30] and [62].

Addressing the wrong question 72 The applicant contends that par [8] of the Issues Paper misstates the respondent's discretion as being to permit the applicant to remain in Australia, whereas the correct position is the reverse: the applicant is permitted to remain in Australia absent the Minister exercising his discretion against him. What are submitted to be analogous reversals of the correct statement of discretion were set aside in Ross v Minister for Immigration & Multicultural Affairs (2000) 107 FCR 1 at [27] - [29] (Spender J) and Doukmak v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 432 at [45], [50] - [51] (Moore J). 73 There is a threshold problem for the applicant in relation to this submission as the Minister's statement of reasons is not before me because the applicant successfully objected to its reception into evidence. In any event, the applicant's contention that the Minister misconceived the nature of his discretion seizes upon one sentence in the Issues Paper which speaks in terms of deciding 'whether Mr Tuncok should be permitted to remain in Australia'. That sentence does no more than note the legal consequence of a decision to cancel the visa. 74 However, it is clear from reading the Issues Paper as a whole, and most particularly the way the questions for decision are set out in Part E of that document, that no error of law occurred in the formulation in the Issues Paper of the question which the Minister had to decide. The first page of the paper expressed its purpose as being to seek a decision on 'whether the visa should be cancelled'. The paper then summarised the effect of s 501(2) - ie that the Minister 'may cancel a visa'. The next sentence after the sentence on which the applicant relies says 'Section 501 of the Migration Act 1958 provides you with a discretion to cancel a visa'. The discussion of the various considerations which follows does not reflect any view that the visa is to be cancelled unless some test is met. Section E provided for the Minister to select one of four decisions. Those questions were correctly formulated. 75 In Dagli Hill J found that no error of law was involved in an issues paper which was not materially distinguishable from the present. That conclusion is consistent with the decision of the High Court in Ex parte Palme at [28], [61] and [93].

Conclusion 76 The application should be dismissed with costs. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate: Dated: 10 October 2003 Counsel for the Applicant: Mr T Reilly

Solicitor for the Applicant: Christopher Levingston & Associates

Solicitor for the Respondent: Australian Government Solicitor