Watson v Minister for Immigration & Multicultural & Indigenous Affairs

'On or about 8 March 2001 the applicant was notified of a decision to cancel his permanent resident visa under section 501 of the Migration Act 1958 ("First Decision"). Subsequently, he was notified by letter from the Department of Immigration and Multicultural Affairs ("Department") dated 13 September 2001 that the Department "… will no longer be proceeding with your removal following the conclusion of the custodial element of your sentence" ("Second Decision". Then, by letter from the Department dated 15 March 2004, the applicant was notified of the Department's intention to enforce the First Decision ("Third Decision").' The applicant sought the following relief: '(a) An order that the Respondent show cause why a wrist [sic] of certiorari should not issue out of this Honourable Court directed to the Respondent to quash the first decision or, alternatively, the third decision; (b) An order that the Respondent show cause why a writ of prohibition should not issue out of this Honourable Court directed to the Respondent prohibiting her from acting further on the first, or alternatively, the third decision; (c) An injunction directed to the Respondent prohibiting her from acting on the first, or alternatively, the third decision; (d) A declaration that the first decision was revoked by the second decision; (e) Such further or other relief as to this Honourable Court might seem appropriate.' 32 The grounds on which that relief is sought by the applicant can be summarised as follows: '(a) The Respondent erred in purporting to apply Direction No 17, purportedly made pursuant to s.499 of the Act, when the Direction was invalid; b) The Respondent failed to comply with Direction No 17 in breach of s.499(2A) of the Act; (c) The third decision is invalid by reason of the breach of the rules of procedural fairness arising from the Applicant not being afforded an opportunity to be heard before the making thereof; (d) The Respondent is estopped from acting further on the first decision, that decision having been effectively revoked by the second decision; (e) The first decision was revoked by the second decision.' 33 The parties in this case both proceeded on the basis that the reasons for the decision to cancel the applicant's visa were set out in the "Decision Record". 34 At the time the first decision was made, the practice of the Minister was to adopt the Decision Record as his reasons for cancellation of the visa pursuant to s 501(2) of the Act. It was held in Minister for Immigration and Multicultural Affairs v W 157/000 (2002) 125 FCR 433 that this practice does not comply with the requirements of s 501G(1)(e) of the Act, which requires that: 'If a decision is made under subsection 501(1) or (2) … to: … (b) cancel a visa that has been granted to a person; the Minister must give the person a written notice that: … e) sets out the reasons (other than non-disclosable information) for the decision; …' per Branson J at pars 54-55, per Goldberg J at par 85 and per Allsop J at par 89. 35 The covering letter in this case, which enclosed the Decision Record, contained the following statement: 'I also enclose with this Notice: · A copy of the decision record that sets out the reasons for the decision (other than non-disclosable information).' 36 The focus of the submissions for the applicant was the claim that Direction Number 17, which the Minister applied, was invalid, as constituting an unlawful fetter on the decision of the Minister. Dowsett J in Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 ('Aksu') held that Direction Number 17 was inconsistent with the intention contained in s 501 of the Act, that the discretion to refuse or cancel a visa be unfettered. His Honour held that, on that basis, Direction Number 17 may be invalid. His Honour concluded that: 'The minister's adoption of the briefing paper implies his adoption of the "binding" nature of the directions as to weight. … It is an inescapable conclusion of his adoption of it that he proceeded in accordance with [the briefing paper]. … It follows that he has inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case.' 37 The question has been considered by the Full Court of the Federal Court on two occasions: Awa v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 189 ALR 328 and Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326. 38 In Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311 Stone J distinguished the decision in Aksu and the decision in Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401, and summarised the position at par 52: 'In summary, the problem with Direction 17 is that, contrary to s 499(2), it is inconsistent with the unfettered discretion given in s 501 because it purports to predetermine the relative weight to be given to various factors without the necessity of independent consideration of the relevant case. In the absence of any indication of the weight attributed to the factors relevant to Mr Javillonar's case, I am unable to conclude that the Minister did not give the necessary independent consideration to the relevant factors and therefore the ground of review under s 476(1)(e) is not made out.' 39 Paragraph 5 of the Decision Record, set out in par 21 above, is headed "DISCRETION". 40 In my judgment, it cannot be said that, in this case, Direction Number 17 operated as an unlawful fetter to the exercise of the Minister's discretion. The Minister was advised that he was not bound by the Direction. Moreover, since the applicant made no submissions in response to any of the various invitations from the Department, it cannot be suggested that there was any error in the weighting accorded to any relevant consideration. This attack on the correctness of the first decision therefore fails. 41 However, in my opinion, the first decision was revoked by the second decision. 42 The Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Craig [2004] FCAFC 294 ('Craig') held that a letter sent to a deportee stating that no further action would be taken to effect his deportation constituted a revocation of the deportation order. That decision was in the context of s 201 and s 206 dealing with deportation rather than s 501(2) of the Act dealing with cancellation of a visa that has been granted to a person. 43 Section 29 of the Act, relevantly, defines a visa as a permission to a person to remain in Australia. Section 29(1) provides: '(1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following: (a) travel to and enter Australia; (b) remain in Australia.' 44 The letter in Craig's case advising that no further action would be taken to effect his deportation was in the following terms: 'Following a recent High Court decision, advice has been received from the Australian Government Solicitor (AGS) which indicates that the Minister for Immigration and Multicultural Affairs does not have the power to deport or remove certain British subjects who arrived prior to 1973. This decision effects individuals who are the subject of deportation orders or whose visas have been cancelled under section 501, 501A or 501B of the Migration Act 1958, and who arrived in Australia as British subjects as permanent residents prior to 1973. As you fall within this category, no further action will be taken to effect your deportation and arrangements have been made to have you released from immigration custody as soon as practicable.' 45 The larger paragraph is in identical terms to the letter of 13 September 2001 addressed to Mr Watson. The second paragraph of the letter to Mr Watson read: 'As you fall within this category, the Department will no longer be proceeding with your removal following the conclusion of the custodial element of your sentence.' The High Court decision referred to in the letter was Re Patterson; Ex parte Taylor (2001) 207 CLR 391. 46 On 9 December 2003 the High Court delivered its decision in Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143 which overruled Paterson. 47 In Craig's case the Department sent a letter to him informing him that: '… the decision of the Delegate of the Minister to order your deportation under section 200 of the Migration Act 1958 stands and you are liable to be detained under s253 of the Migration Act 1958 and removed from Australia. You are hereby notified of the Department's intention to enforce the decision to order your deportation of 02 March 2000. …' 48 The language of the letter of 15 March 2004 to Mr Watson is in similar terms. The last paragraph of that letter reads: 'You are hereby notified of the Department's intention to enforce the decision to cancel your visa of 08 March 2001. Accordingly, you will be liable for removal from Australia at the conclusion of your sentence.' 49 It is true there is no express power in the Act to revoke a decision to cancel a visa. However, the observations of Northrop and Pincus JJ in Dallikavak v Minister of State for Immigration and Ethnic Affairs (1985) 9 FCR 98 at 103-104 are apposite: '…if the Minister, having made a deportation order, subsequently becomes aware of circumstances which lead him to doubt the correctness of his order, or to come to the view that its correctness might need lengthy re-examination, he may revoke the order. If that happened, the person affected would cease to be a deportee under the Act but would remain a prohibited non-citizen and be subject to all the restrictions imposed by the Act on persons of that status. If on re-examination the Minister is of opinion that the order should again be made, no new grounds are necessary, in our view: see the decision of Smithers J in Re Chan and Minister for Immigration and Ethnic Affairs (1977) 17 ALR 432 at 441-442. See also Acts Interpretation Act 1901 (Cth), s 33(1).' 50 In my judgment, the letter of 13 September 2001 implicitly communicated to Mr Watson that a decision had been made by, or on behalf of, the Minister to treat the decision to cancel his visa as no longer operative or having any force or effect. As in Craig, the evident purpose of the letter to Mr Watson of 13 September 2001 was to declare the Minister's position in relation to cancellation of Mr Watson's visa and his removal from Australia, and to remove any residual uncertainty as to the status of the decision to cancel his visa. The Minister had decided that no further action would be taken to effect his removal from Australia, a result which could only be secured if the decision to cancel his visa was revoked. As the Full Court in Craig observed: 'The mere fact of the order having been made had adverse consequences for the respondent. It can be inferred that upon the Minister determining that she had no power to make the order and therefore no power to carry it into effect, she intended to and would take the appropriate legal steps available to her under the Act to brings its adverse effects to an end.' 51 Although the Full Court in Craig was concerned with an order for deportation rather than cancellation of a visa, in my opinion the reasoning supports the conclusion that the letter of 13 September 2001 to Mr Watson effected a revocation of the cancellation of his visa. 52 I will make a declaration that the cancellation of the visa of Mr Watson made on 8 March 2001 was revoked by the letter of 13 September 2001. 53 The respondent should pay the applicant's costs of and incidental to these proceedings, to be taxed if not agreed. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender

Associate: Dated: 15 December 2004 Counsel for the Applicant: Mr Hugh Scott-McKenzie (pro bono)

Solicitor for the Applicant: Rouyanian & Company Lawyers (pro bono)

Solicitor for the Respondent: Blake Dawson Waldron