Untan v Minister for Immigration & Multicultural & Indigenous Affairs

amended application 11 The amended application contains the following particulars of the lack of procedural fairness relied upon: a) The Minister did not have access or regard to relevant material sent by the Applicant's wife which supported the Applicant's claim that he needed to remain in Australia for his family: i) On 14 February 2000, the Applicant's wife was interviewed by an officer of the Minister's Department. She was provided with a copy of the interview and was invited to add anything she wished. ii) On 25 May 2000, the Applicant's wife wrote a three page letter detailing reasons why she needed her husband to remain in Australia for the benefit of her family. iii) Neither this letter nor any summary of it was provided to the Minister to take into account and balance in assessing whether to make the Purported Decision. b) The Minister did not have access or regard to relevant material sought by it about the impact of separation of the Applicant from his children, in circumstances where the Applicant and his wife might reasonably have believed that access and regard to that material would have been had: i) Both the Applicant and his sons had seen Mr Raymond Hudd, a psychologist, since 1997. ii) The Department was notified of this by the Applicant's wife in May 2000. iii) An officer of the Department requested that Mr Hudd provide the Department with a report on the Applicant which would address the impact on his children of his being removed from Australia. iv) Mr Hudd informed the Applicant and his wife that he had been requested to prepare such a report and that he had done so. v) Mr Hudd sent the report to the Department in 2000. vi) The report indicated, inter alia, that in Mr Hudd's opinion if Mr Untan were deported that act is tantamount to destroying the lives of his sons, his wife and his daughter because it is the thread of hope of re‑establishing the family unit that holds the family together. vii) The Report was not provided to the Minister. viii) The Department did not indicate either to Mr Hudd or the Applicant or his wife that the report had not been received (if that be the fact) nor that it would not be taken into account. ix) In the circumstances, it was reasonable for the Applicant and his wife to expect that the report would be taken into account or that they be notified if it was not to be. Neither was done. x) If the Applicant or his wife had been notified that Mr Hudd's report was not to be taken into account (or had not been received), they could have and would have taken action either to supply a copy of the report or contend that it should have been considered. xi) This constitutes objective procedural unfairness. c) Notwithstanding that it was recognised that a decision to cancel the Applicant's visa would have an adverse impact on his children, the children were not consulted about the making of the decision.'

Procedural Fairness 12 It was accepted by the Minister that the rules of natural justice apply to a decision under s 501(2) of the Act. However, it was contended on his behalf that the interests of Mrs Untan were likely only to be indirectly affected by a decision to cancel the applicant's visa and that in the circumstances there was no duty to afford her procedural fairness. 13 As is mentioned above, Mrs Untan is an Australian citizen. Mrs Untan and the applicant have been married for sixteen years. They have three children who are Australian citizens and who live with Mrs Untan. The twin sons of the marriage, who are approximately fifteen years old, have a measure of intellectual disability. They apparently require careful supervision and they are, as would be expected, increasing yearly in physical strength. Each of the applicant and Mrs Untan has parental responsibility for these children (s 61C of the Family Law Act 1975 (Cth) ('the Family Law Act')). The applicant and Mrs Untan have mutual rights and obligations with respect to maintenance arising from s 72 of the Family Law Act which provides: 'A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately, whether: a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years; b) by reason of age or physical or mental incapacity for appropriate gainful employment; or c) for any other adequate reason; having regard to any relevant matter referred to in sub-section 75(2).' 14 The respect which the law of Australia accords to the institutions of marriage and family is reflected in s 43 of the Family Law Act. Section 43 of the Family Law Act identifies the principles which courts exercising jurisdiction under that Act are to apply. Those principles are: '(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life; (b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children; (c) the need to protect the rights of children and to promote their welfare; (ca) the need to ensure safety from family violence; and (d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.' 15 In the circumstances it seems to me to be to be a matter of some surprise that the Minister should contend that Mrs Untan's interests are likely only to be indirectly affected by a decision to cancel her husband's visa. More importantly, the contention is not, in my view, supported by the authorities. 16 Reliance was placed by counsel for the Minister on a passage from the judgment of Deane J in Kioa v West (1985) 159 CLR 550 at 634 where his Honour said of an infant of less than twelve months of age that she did not have a legitimate expectation of being heard before a deportation order was made against her parents. Deane J observed that, so far as the infant was concerned, the effects of any deportation order against her parents would be 'but indirect and consequential'. The differences between the respective situations of the infant in that case and Mrs Untan in this case are obvious. They include the inability of the infant to speak on her own behalf and to live independently of her parents. 17 In Kioa v West at 584 Mason J said: 'The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.' 18 Deane J himself in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 observed at 653: 'Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making … and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances. 19 In my view, it is not open to doubt that the decision to cancel the applicant's visa affected in a direct and immediate way Mrs Untan's rights and interests as the applicant's wife and as the mother of their children. It may also be that the decision affected Mrs Untan's legitimate expectations arising from:

(a) Australia's adherence to the International Covenant on Civil and Political Rights (19 December 1966, [1980] ATS 23 (entry into force for Australia 23 March 1976)) which by Article 23, clause 1 declares that 'the family is the natural and fundamental group unit of society and is entitled to protection by society and the State';and (b) the Family Law Act and in particular s 43 of that Act.

However, as I have found that Mrs Untan's rights and interests are affected I have not found it necessary to determine whether her legitimate expectations arising from the matters identified above are also affected.

20 Plainly the Department recognised Mrs Untan's right to be heard in respect of any decision to cancel the applicant's visa. As is mentioned above, an officer of the Department interviewed Mrs Untan on 14 February 2000. By a letter of the same date Mrs Untan was provided with a record of the interview and invited to advise the officer if she had anything to add or if there was anything in the record with which she did not agree. 21 By a letter dated 25 May 2000 Mrs Untan provided to the officer additional information which includes advice that: (a) her mother, who had been assisting her with the children, had passed away so that her need for her husband's assistance had increased; (b) her sons' grief when their father was incarcerated was so severe that she had taken them to a counsellor, Mr Hudd, and she had asked Mr Hudd for a letter about the impact on any deportation of the applicant on the boys; and (c) she had seen improvements in the applicant's behaviour, insight and maturity following his receipt of psychiatric/psychological assistance in prison.

'My life is on hold waiting for the next two years to pass as then I can have some freedom with my children. I don't need to sit night after night in the lounge room monitoring my childrens behaviour unable to go into the kitchen to wash up or put clothes into the washing machine. I also live in my own prison alone with no help. As the boys are reaching adolesence [sic] their physical strength is increasing and their need for more freedom greater but they cant be left unsupervised so they get frustrated as they are confined to spending time that has to cater to a four year old girl. All our lifes [sic] are confined and limited to what I am capable alone to provide, we need him here with us.' 22 The memorandum to the Minister submitted that 'the best interests of Mr Untan's three children would be served if their father remain in Australia'. The memorandum also noted that Mrs Untan had said that she would not accompany her husband overseas if his visa were cancelled and that 'it is reasonable to assume that the cancellation of Mr Untan's visa would cause considerable hardship for his family in Australia'. However, Mrs Untan's letter of 25 May 2000 was neither referred to nor summarised in the material that was placed before the Minister. It was not annexed to that material. 23 The memorandum to the Minister made no reference to Mr Hudd or to any letter or report provided by him. It appears that in about early July 2000 an officer of the Department asked Mr Hudd to prepare a report concerning the applicant and his children to be used in the decision making process concerning the possible deportation of the applicant. Mr Hudd advised Mrs Untan of the request and that he would prepare a report and send it to the Department. 24 It appears that it was not until late in 2000 that Mr Hudd prepared his report. The extent to which the Department sought to contact Mr Hudd in the interim period is in dispute. On 28 December 2000 Mr Hudd took steps to send his report to the Department by facsimile transmission. There is no evidence that the report apparently sent on that day reached any relevant Departmental file. It did not reach the Minister. Mrs Untan's affidavit evidence was that she had expected Mr Hudd's report to be before the Minister and that if she had known that it was not being considered by the Minister she would have requested the Department to 'chase up' the report. 25 Mr Hudd's report includes the following paragraph: 'It is clear to me that the Untan boys, Joshua and Ion, are strongly bonded to their father. It is because of this that my opinion is that if Mr Untan were deported that act is tantamount to destroying the lives of his sons, his wife and his daughter because it is the thread of hope of re-establishing the family unit that holds the family together. I am further of the opinion that if deported Mr Untan would become dangerously suicidal and that if Mr Untan were not present as his children grew, his sons' behaviours would become increasingly difficult for Mrs Untan to manage which could negatively impact on her mental health.' 26 The applicant's children were not directly consulted about the making of the decision to cancel their father's visa. 27 In my view, Mrs Untan had a reasonable and legitimate expectation that her letter of 25 May 2000, or at least its contents, would be drawn to the attention of the Minister before he made his decision concerning the cancellation of the applicant's visa. This expectation arose from the invitation given to her by the Departmental officer to add to the record of her interview. Her letter of 25 May 2000 added significantly to the record of her interview in the ways identified above. It did so particularly by its reference to her need for her husband's help and support and the likely impact that his departure from Australia would have on her family unit and on her personally as the remaining parent of two growing boys with intellectual disabilities. 28 I further accept that Mrs Untan had a reasonable and legitimate expectation, arising from her own reference in her letter of 25 May 2000 to a letter from Mr Hudd and from the request for a report from Mr Hudd made by the Department of which she understandably learned, that the Minister's decision would not be made in the absence of a report from Mr Hudd without further reference to her. Mr Hudd's report contained an apparently significant expression of expert opinion concerning the family unit and the difficulties which Mrs Untan would face if her husband were not available to share parenting responsibilities with her. In this regard, this case shares similarities with R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 (HL). In that case the House of Lords concluded that an applicant for compensation had been treated unfairly and in breach of the rules of natural justice when a decision adverse to her was taken without reference to a medical report prepared by a police doctor. Lord Slynn of Hadley, with whom the other Law Lords agreed, at 346 stated: 'In the present case, the police and the board knew that the applicant had been taken by the police to see a police doctor. It was not sufficient for the police officer simply to give her oral statement without further inquiry when it was obvious that the doctor was likely to have made notes and probably a written report. … inquiries should have been made as to the existence of Dr West's report and an adjournment taken to obtain it.' 29 In the circumstances I conclude that Mrs Untan was deprived of a fair opportunity of presenting to the Minister the case which she wished to present in opposition to any decision to cancel the visa of the applicant. As Gleeson CJ pointed out in Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [4] the question is not whether the decision was made in good faith but whether the statutory power was exercised in a manner that was procedurally fair. 30 In the circumstances it is not strictly necessary to determine whether procedural fairness was denied to the applicant's children. However, I am inclined to doubt that in all of the circumstances it was. The youngest child was only born on 20 December 1995. Mrs Untan was consulted with respect to her interests and no reason has been identified which suggests that Mrs Untan was an unsuitable person to protect her daughter's interests. The twin boys, who were born on 16 October 1987, have intellectual disabilities and are apparently highly dependent on their mother. Again no reason has been identified which suggests that Mrs Untan was not the appropriate person to protect their interests.

Privative Clause 31 A decision under s 501(2) of the Act is a 'privative clause decision' within the meaning of s 474(2) of the Act. 32 The applicant by his counsel formally submitted that NAAV v Minister for Immigration and Multicultural and Indigenous Affairs ('NAAV') [2002] FCAFC 228 was wrongly decided and that a privative clause such as s 474(1) does not preclude relief for breaches of the rules of natural justice. It was accepted, however, that as a single judge of the Court I am bound to proceed on the basis that NAAV, and the other cases determined together with NAAV, were rightly decided. 33 In NABM of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294 at [24] another Full Court summarised the approach of the majority in NAAV as follows: 'In NAAV v Minister, von Doussa J (with whom, on this point, Black CJ and Beaumont J agreed) stated (at [635]) that the Migration Act contained a hierarchy of provisions of which, in relation to privative clause decisions, s 474(1) was intended by Parliament to be the leading provision. His Honour held that "apparently inconsistent provisions of the Act" are to be construed as subject to the restrictions in s 474(1). Consequently, the effect of s 474(1) is to expand the jurisdiction of the relevant decision makers, including the Tribunal, so that a decision that is affected by irregularities that would, in the absence of s 474(1), amount to jurisdictional error will be within power, subject to satisfying the so-called Hickman conditions. The Hickman conditions require that the decision · be a bona fide attempt to exercise the power which the Migration Act reposes in the decision maker; · relate to the subject matter of the Migration Act; · be reasonably capable of reference to the power. In addition, it follows from the reasons of the majority in NAAV v Minister that a decision will not be protected from judicial review if it contravenes what is variously described as an "inviolable" condition, "jurisdictional factor" or "structural elements" found in the legislation: at [12], per Black CJ; at [619], per von Doussa J.' 34 Mr Lloyd, counsel for the applicant, argued that consideration of s 501 of the Act as a whole reveals a clear legislative intent that:

(a) the rules of natural justice are to apply in relation to decisions made under s 501(2) of the Act; and (b) that a decision made under s 501(2) in contravention of the rules of natural justice is not protected by s 474(1) of the Act from judicial review.

Part (a) of this argument is not contentious; part (b) is disputed by the Minister.

35 Mr Lloyd drew attention to the fact that when, after the enactment of s 474(1) of the Act, the Parliament considered the extent of the natural justice requirements to be implied under the Act (see Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) ('the Procedural Fairness Act')) it took no steps to exclude or limit natural justice in the context of s 501(2). The Procedural Fairness Act is concerned to limit the content of the natural justice hearing rule as it applies to certain decision-making powers under the Act. The Procedural Fairness Act has no application in respect of the decision-making powers contained in s 501 of the Act. I have not found the Procedural Fairness Act helpful in determining whether s 474(1) expands the jurisdiction of a decision‑maker under s 501(2) of the Act so that a decision made in contravention of the requirements of natural justice will be immune from judicial review. 36 In NAAV at [15] - [17] Black CJ observed: 'It is difficult to formulate a precise principle for determining exactly when a provision in an Act containing a Hickman clause may be said to be outside the operation of such aclause and to have the character of an "inviolable limitation". Constitutional considerations aside, the cases where "inviolable limitations" have been identified by the High Court can be seen, however, as cases in which, if the legislation were interpreted in a particular way, essential structural elements created by the legislation would be violated, or else some other quite fundamental aspect of the legislation would change its character in a way and to an extent that the Parliament could not be taken to have intended. To my mind, the task of identifying any "inviolable limitations" in an Act containing a Hickman clause is not greatly assisted by distinctions such as those between 'procedural' and 'substantive' provisions, or between express and implied statutory conditions on power. Although the Parliament's intention was to give validity to private clause decisions to the greatest extent that can be achieved consistently with the High Court's interpretation of clauses in similar terms, the effect of the clause, and more particularly the question whether there are "inviolable limitations" in the statute upon which the clause does not operate, has to be considered in the context of the particular statute in which it is found. …' 37 Mr Lloyd stressed that it is fundamental to the structure of s 501 of the Act that the rules of natural justice do not apply to a decision under subsection (3) but do apply to decisions under subsections (1) and (2). Were it the case, he argued, that a decision under subsection (1) or (2) made in contravention of the rules of natural justice would be immune from judicial review, this fundamental structure would be destroyed. 38 The above argument is an attractive one. However, it seems to me to argue too much. I must proceed on the basis that s 474(1) is intended to expand the jurisdiction of a decision‑maker to overcome even errors that are jurisdictional in nature in the sense discussed in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. Section 474(1) provides no licence for decision‑makers to ignore the requirements of the Act. A decision‑maker who acted on the basis that it did provide such a licence would be likely to be found not to have made a bona fide attempt to exercise the power reposed in him or her. It was not, and in my view could not, have been argued in this case that the decision was not a bona fide attempt to exercise the power given to the Minister by s 501(2) of the Act. The decision‑maker recognised that the rules of natural justice apply to a decision made under s 501(2) of the Act and attempted to apply those rules. 39 In NAAV Black CJ at [30] said: 'I take s 474(1) to express the Parliament's intention that the Minister's satisfaction is to be taken to exist even if the Minister (or the delegate) has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material. But here the question as to "contravention of [the] Act or any other law of the Commonwealth" raised by s 116(1)(f) is so centrally definitional to "satisfaction" that is required by s 128, and is posed so directly as a legalquestion about the operation of the Act itself, that a line might have been crossed, in that it would seem inherently unlikely that the Parliament intended that the Minister be given a power to decide that question in a way that is wrong as a matter of law. Not only is the ultimate question to which s 116(1)(f) requires an answer posed, in terms, as a question of law, but part of that question relates back to the equally fundamental question of the validity of the application for the visa (see s 46).' 40 A contravention of the rules of natural justice in the course of the making a decision under s 501(2) of the Act seems to me to be of a different character from the error considered by the Chief Justice. Indeed, in NAAV at [38] the Chief Justice expressed the view that s 131 of the Act is 'one of the very few procedural requirements in the Act that have to be satisfied before the decision‑maker's power is attracted, and the expansive effect of s 474(1) is activated'. 41 In my view, at least where a bona fide attempt to comply with the rules of natural justice is made by a decision‑maker acting under s 501(2) of the Act, the approach adopted by Black CJ in NAAV to the operation of s 474(1) of the Act does not support a conclusion that a contravention of the rules of natural justice will have the result that the decision is not protected from judicial review. 42 I conclude that the submission that the provision of natural justice to a person whose rights, interests and legitimate expectations will be affected by the making of a decision under s 501(2) of the Act is an 'inviolable' condition, 'jurisdictional factor' or 'structural element' found in the Act within the meaning of the reasons of the majority in NAAV must be rejected.

conclusion 43 For the above reasons I conclude that the decision to cancel the applicant's visa was made in contravention of a statutory obligation to afford procedural fairness to Mrs Untan. However, the effect of the privative clause contained in s 474 of the Act is that the decision is nonetheless immune from judicial review. 44 The application will be dismissed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Solicitor for the Applicant: Public Interest Advocacy Centre