VKAC v Minister for Immigration and

Direction 17 indicated that considerations which could be relevant to the exercise of discretion to cancel a visa included the following: 2.17 (a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community; … (c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere; 7 By a letter dated 31 August 2001, solicitors acting for the appellant made submissions to the minister which included the following: As you are aware [the appellant] was born in Burma and arrived in Australia with her parents as a sixteen (16) year old. The circumstances in which my client arrived will be well known to the Department. I understand her parents where [sic] sponsored by the Uniting Church to come to Australia by reason of the political difficulties that were being experienced in the home country at the time. I am instructed by my client that she has approximately eighty (80) family members currently residing in Australia, including her parents, [named], both of who are pensioners. Her siblings [named] who [sic] also reside in Western Australia primarily in the metropolitan area of Perth. A further sibling of my client, [named] died in a motor vehicle accident in 1980 in Perth. I am instructed by my client that she maintains a close family relationship and wishes to enhance those relationships upon her release from prison. She is also in a relationship with [named] as documented in his correspondence. [named] is gainfully employed and able to offer considerable assistance to [the appellant]up [sic] her release. My client was married in 1973 but unfortunately divorced in 1978. She has son [sic], [named], who was born in 1979. Her son maintains a close relationship with his mother and continues to visit her on regular occasions at the prison. My client resided in Europe between 1984 and 1985 on a Certificate of Identity, which I am instructed was issued by the Australian Department of Immigration. My client was unable to obtain an Australian Passport nor was the Burmese Embassy prepared to issue her with a Burmese Passport. The letter apparently informed [the appellant] that she was "stateless". I would appreciate if the Department would for the purpose of further submission indicate, if [the appellant] were to be deported, the destination to which she would be deported. 8 Then, by a letter from the department also dated 31 August 2001, a copy of Direction 21, which replaced Direction 17 was enclosed. The letter included the following: In the interests of natural justice, you are provided with an opportunity to provide comments against the new Direction. In preparing your comments please read fully and carefully the contents of the Minister's Direction. You should address each and every topic that you feel applies to you or is relevant to your circumstances. You may also wish to provide any further information that you feel the Minister ought to be aware of and take into account. The appellant was given until 21 September 2001 to provide any written submissions. A relevant change to Direction 17 was the addition to paragraph 2.17(a) of, inter alia, the following: … Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that: "The family is the natural and fundamental group unit of society, and is entitled to protection by society and the state.

the cancellation decision 9 By a letter dated 31 January 2002, the department notified the appellant that the minister had cancelled her visa. A document described as a decision record was enclosed with the letter. The letter described the decision record as setting "out the reasons for the decision". Section 501G(1) obliges the minister to give reasons for the decision to cancel a visa. However, the failure to give reasons does not invalidate the decision (s 501G(4)). Despite the reference in the letter from the department to the decision record as constituting the reasons, the decision record signed by the minister does not constitute reasons for the purpose of s 501G(1): Re MIMIA; ex parte Palme (2003) 216 CLR 212. It is common ground that the appellant did not seek reasons and that no reasons were produced. The relevance of the document in this case is as evidence of the information which was before the minister when he made his decision. The Court may also infer the reasons for the decision from the information in the decision record: Minister for Immigration & Multicultural & Indigenous Affairs v W157/00A (2002) 125 FCR 433, especially per Branson J (with whom Goldberg J agreed) at [72]. 10 The decision record was a document prepared by the department for use by the minister. At the end of the document the minister was given a number of options of possible decisions which he could make. He was asked to delete the options which were not applicable, and to sign the document as a record of his decision. The document commenced with a statement of its purpose, namely, to seek the minister's decision on whether to cancel the appellant's visa. It then set out the appellant's personal details including her citizenship, which was described as "Burmese". 11 Next the document described the appellant's visa history. This was followed by a section headed "Consideration of Visa Cancellation". After summarising the matters relevant to the character test, the document discussed a series of issues under the heading "Discretion". The issues discussed reflected the matters referred to in Direction 21. In relation to the issues raised in paragraph 2.17 of Direction 21 the decision record stated: [23] Paragraph 2.17 of the Minister's Direction provides that other considerations may be taken into account by the decision-maker. It is the Government's view that where relevant, it is appropriate that these matters be taken into account. [24] In [the appellant's] submission, Annex C, the extent of disruption to her family, business and other ties to the Australian community were not addressed. Letters of support from her mother and defacto spouse are held at Annex I. [25] [The appellant] is in a defacto relationship with an Australian citizen. The Ministry of Justice Immigration Report, Annex G, dated 01.08.2001 states: "Her new partner … came into her life approximately two and half years ago. She states he has been a constant support and had tried to pull her away from the scene she was involved with … is not a drug user according to [the appellant]…" [26] In a letter of support for [the appellant], Annex J, her son stated: '…If she was to be sent back to Burma, her life (and mine) would be completely turned upside down, as she knows no one there, neither family nor friends. Without her I would have no one to rely on for moral support as I do not see my father at all." In [the appellant's] submission, Annex C, she did not address the degree of hardship which would be caused to immediate family members lawfully resident in Australia, including whether they would be able to travel overseas to visit her, the nature of their relationship or their degree of dependence. [27] In [the appellant's] submission, Annex C, her solicitor stated: "…she has approximately eighty (80) family members currently residing in Australia, including her parents…Her siblings…who also reside in Western Australia primarily in the metropolitan area…" [original emphasis]

the judgment of the primary judge 12 The appellant argued before the primary judge that she had been denied natural justice in that the minister had adverse information, namely, the assertion that she was a Burmese citizen, and had not given her the opportunity to comment on that adverse information. 13 The primary judge rejected this challenge. He applied the requirement of natural justice which was expressed by Brennan J in Kioa v West (1985) 159 CLR 550 at 629 as follows: 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. See also VEAL v MIMIA (2005) 222 ALR 411 at [16] - [17] 14 In particular, the case before the primary judge turned on whether the statement of Burmese citizenship was relevant to the decision to cancel the visa. It seems that the principal case put by the appellant to the primary judge was that the appellant was stateless and there was a consequential difficulty in removing her from Australia. As a result she was liable to be held in indefinite detention. The focus of the appellant's case was on the difficulties involved in removing the appellant as a stateless person. In response to this argument, his Honour held that the statement that the appellant was Burmese was not relevant to the decision to be made because "The purpose behind s 501 being protection of the Australian community, the exercise of the discretion provided for in the section does not encompass considerations of difficulty in removing the relevant non-citizen." His Honour considered that the authorities of Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 [Dagli]; Naidu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 64 at [44][Naidu] and Jones v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 70 [Jones] on which the appellant relied were distinguishable. 15 His Honour held that, in any event, the appellant's solicitors regarded the question of citizenship as relevant, and addressed the issue in the written submission to the minister. Thus the appellant had been heard on the question.

consideration of the grounds of appeal 16 The first ground of appeal challenged his Honour's conclusions on the issue of the reference to the appellant as holding Burmese citizenship. 17 The parties agreed that the test applied by the primary judge was the applicable test. Mr Gray, who appeared as counsel for the minister, correctly identified, as the crux of the appeal, the question of whether the citizenship of the appellant was relevant information within the meaning of the test to be applied. 18 In written submissions the minister adopted the reasoning of the primary judge, namely, that the difficulty in removing the appellant was not relevant to the exercise of the power to cancel the visa. In oral argument, counsel further contended that the cancellation of a visa was a separate and discrete matter from the question of the removal of the non-citizen. As the argument developed at the hearing of the appeal, the focus of attention shifted somewhat. Greater attention was given to whether the relevance of citizenship could lie in its link to hardship, particularly hardship to the family of the appellant. When pressed by the Court on the issue of whether hardship arising from the cancellation might be a relevant consideration for the minister to take into account, Mr Gray, whilst maintaining his primary position that it was not a relevant matter, said that he found it difficult to resist the proposition that it could be a relevant consideration. 19 The power to cancel a visa under s 501(2) involves broad discretionary considerations. The minister in this case advised the appellant of the discretionary considerations which he regarded as relevant for the exercise of power. This was an obviously proper and desirable action for the minister to take. He did it by reference to Directions 17 and 21 and suggested that the appellant address each and every topic that the appellant felt applied to her. The Directions referred to the extent of disruption to the appellant's family and the degree of hardship to them including whether they could travel overseas to visit the appellant. If the appellant held Burmese citizenship as asserted in the paper prepared for the minister, she would be at risk of return to Burma if her visa were cancelled. This risk was relevant to the disruption of her family and the degree of hardship to them if the visa were cancelled. Seen in this way, the information had been made relevant by the minister in the way in which he notified the appellant that he intended to approach the issues. In other words, the minister took into account the extent of disruption to the appellant's family and the degree of hardship to them, including whether her immediate family would be able to travel overseas to visit her in the country to which she might be returned. Clearly, the country to which the appellant might be returned if her visa was cancelled was information relevant to that assessment. The minister, it can readily be inferred from the decision record, took into account that she was a Burmese citizen and may be returned there. It can also be inferred that the minister did not take into account the possibility that she might not be a Burmese citizen and might either remain in detention in Australia or that it might be necessary to remove her, if possible, to a country other than Burma. The statement in the decision record that the appellant was a Burmese national was adverse material in that it was a positive and unambiguous assertion by the minister's departmental advisers about her nationality which, in effect, removed from consideration the position advanced by the appellant (a contention of substance based on probative material) that she was stateless and could not be returned to Burma. It consequentially removed from consideration the consequences on the appellant's family of the appellant being stateless and that she might be kept in detention or, potentially more significant for her family, removed to a country other than Burma. 20 In Dagli the applicant contended that he would suffer hardship if his visa was cancelled and he was forced to return to Turkey. He claimed that he had no real connection with the country. The minister had information that the applicant had visited Turkey on a number of occasions and had plans to marry a woman of Turkish origin. This information was not disclosed to the applicant. It was accepted by the Court that the information was relevant to the hardship the applicant might suffer if his visa was cancelled. However, the main area of consideration by the Court was whether the information was, in all the circumstances, adverse to the applicant. Acceptance by the Court that the information was relevant to the question of hardship was a determination on the facts of the particular case and does not provide much assistance to the appellant. In the present case, the primary judge correctly understood that the adverse information in Dagli related to the hardship which might be experienced by the appellant. His Honour's error was in the failure to see that the assertion that the appellant held Burmese citizenship, in the circumstances of this case, was relevant to the hardship which the minister had indicated he would consider in determining whether to cancel the visa. 21 Both Jones and Naidu are examples of the failure of the minister to give an opportunity to people to respond to adverse information before cancelling their visas. The facts and issues determinative of those cases are remote from the critical facts and issues in this case. Beyond standing as general illustrations of failures to accord natural justice resulting from a failure to provide an opportunity to respond to adverse information, these cases do not assist in the resolution of the appeal. 22 Thus, in the circumstances of this case, the information before the minister that the appellant held Burmese citizenship was adverse and was credible, relevant and significant to the decision to cancel her visa. The failure of the minister to disclose this information to her was a denial of procedural fairness. 23 It will be recalled that the primary judge held that even if the information was adverse and, credible, relevant and significant to the decision to be made, the appellant's solicitors saw the issue of her citizenship as relevant, and put forward information of their choice on the subject. It followed that there had been no denial of natural justice. 24 We are unable to agree with this conclusion. The invitation to comment on the possible cancellation was given in general terms. It did not advert to the particular information held by the minister which was adverse to the appellant. In order for the appellant to receive a real opportunity to respond to the information in the decision record that she was a Burmese citizen, she had to be told that that was the information before the minister. 25 The conclusion that the invitation was inadequate is assisted by the terms of the submission made on behalf of the appellant. It is convenient to set out the following relevant passage from the submission of the appellant's solicitors again for the purpose of this discussion: My client resided in Europe between 1984 and 1985 on a Certificate of Identity, which I am instructed was issued by the Australian Department of Immigration. My client was unable to obtain an Australian Passport nor was the Burmese Embassy prepared to issue her with a Burmese Passport. The letter apparently informed [the appellant] that she was "stateless". I would appreciate if the Department would for the purpose of further submission indicate, if [the appellant] were to be deported, the destination to which she would be deported. 26 The terms of this paragraph show that the solicitors regarded the appellant as a stateless person. The submission was not directed to an alternative possibility, namely, that the appellant was Burmese. The debate disclosed by the submission was not between the position that the appellant was Burmese, on the one hand, or was stateless, on the other hand. Rather, the submission was based on the understanding that the appellant was stateless and consequently the relevant enquiry concerned the place to which she would be sent. 27 Further, the passage extracted in full at par 6 of these reasons appears to be an attempt by the appellant's solicitors to begin to address the matters set out in pars 2.17(a) and (c) of Direction 21. The submission describes the family situation of the appellant, and refers to the closeness of the family relationships with her. It recounts the events which led her to believe that she is stateless. The passage ends with a request by the solicitors for further information as to her destination if she is removed, on the basis that she is a stateless person. The solicitors foreshadowed a further submission in light of any advice from the department. The way the submission is structured indicates that the solicitors for the appellant did not appreciate that the minister may consider that the appellant had Burmese citizenship. This, in turn, assists in coming to the conclusion that the general invitation to comment was inadequate to notify the appellant of the specific adverse information held by the minister. Had such notification been given it is probable, in the circumstances of the case, that the solicitors would have responded differently. In our view, the appellant was not given an opportunity to respond to the adverse information concerning her citizenship held by the minister. 28 Mr Gray said that if the Court held that the appellant had been denied natural justice as alleged, the minister would not rely on any argument that the denial of natural justice could not have affected the outcome of the proposed decision to cancel her visa. This was a proper concession.

Conclusion 29 It follows from these reasons that the appeal must be allowed. In view of our decision on the first ground of appeal it is unnecessary to consider the appellant's further grounds of appeal. As the argument upon which the appeal succeeded was not raised before the primary judge, there will be no order as to costs of the proceeding before the primary judge. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North & Mansfield.

Solicitor for the Appellant: Henry Christie Solicitor

Solicitor for the Respondent: Australian Government Solicitor