For some time much the same set of exchanges were repeated. Then, toward the end of the cross-examination, the following was said:
"Q: I suggest, Mr Zekiroski, that you might think that you mentioned this in the interview but you can't really be sure?---A: I told him positive.
Q: But you don't have any notes to help you recollect what you said in the interview?---A: No, I don't have any notes but I'm a normal person, which I can remember very well, I told him - I mention to him, even in three, four occasions, he was approach me like 'His mother, what nationality she is?' He thought maybe she is a Macedonian. I told him she is a gipsy. He said, 'How about your background, where are from your father?' which is that he passed away a long time ago and I've never seen him - I mean, my grandmother from my father, I said 'Yes, they are gipsy.' And he approached me as well, 'Is your sister in here is she married to a Macedonian man?' and I said, 'No, she is married to the gipsy'. So he approached me on different occasions and I told him we are a gipsy family, he knew it very well.
Q: How many times did he approach you?---A: About three, four times. …
Q: It's possible that you mentioned all of those things that you talk about, the nationality of Steven's mother, your family composition, your background in Macedonia but you didn't mention that you were gipsies?---A: I did mention many times and he knew very, very well, and I told him - I'm laughing because it is funny, it is funny he did not put it, he knew very well. I told him that we are the gipsy people there. The Macedonian government when they have a job somebody to work in, they don't offer you job, so they take the white people, they racist our skin because we are more darker than them. So I told him that I'm happy in this country, I can get a job, any job I like, so there is no racism in here or anything, if you are gipsy or whatever, whichever country you come from, in the conversation with Peter James I told him and he knew it very well this conversation.
Q: So you thought this was important to the decision?---A: It is important, it is, he didn't mention it at all.
Q: But you didn't raise it with Mr James until over a month after you learned of the decision and after you had had many phone calls with him and hadn't raised this as a problem?---A: I only raised it twice. On the interview he knew it and then on the phone call, the last phone, when I found out that it not mentioned in here.
Q: Why didn't you raise it before then? As soon as you got the decision, why didn't you phone him up straightaway and say, 'There's no mention in this decision about us being gipsies'?---A: Because I didn't notice that there is no mention, and then I noticed one of the - when I was working courier work and there was a gentleman he finished his study as a solicitor and he know some solicitor in here and I told him my problem and he as well, he saw it there that there's no mention - and plus I found myself that - then when I found there Inderal is not mentioned, then I straightaway was not happy, not happy, and I cried, cried and always I cry for my son because my son is mentally ill. At the moment he's on Machinon. Then I raise it with Peter James. I said, 'Is not fair. You did not' - is many, many things he missing out, not only the gipsy.
Q: That's right. You had raised many concerns over many phone calls over that whole month. You had spoken to him many times?---A: Yes, I had.
Q: You'd raised many things with him?---A: Yes.
Q: You hadn't mentioned this until the last phone call on 31 October?---A: I did not mention that because I did not find anything. When I found straightaway and straightaway I ring him, when I found out that there's not gipsy mentioned there.
Q: I suggest to you that this occurred to you after you had read the decision several times and spoken to various people it was then that you decided to raise this issue?---A: Sorry, say again, sir.
Q: When you read the decision yourself when you first got it, you did not notice that the gipsy issue was not mentioned?---A: Yes, I did not notice that.
Q: It was only a long time after that, after you had spoken to other people, that this was suggested to you?---A: I found that also through my children, my daughter, who is born in here, and the boy. They are 14, my daughter, and the boy is 12 - Ameda and Aysit. They found - they said, 'Daddy, I can't see in here any gipsy,' and then I raise that when I found out.
Q: So you didn't notice it yourself, although you were the person who mentioned it at the interview?---A: No, I didn't notice that, but after I was looking through the book, it's not there.
Q: How did your - you say your daughter raised it. How did she know that you had mentioned this in the interview?---A: Because already I've got some - a little bit of experience of other people. Like, I was asking - I asking a lot of solicitors and tell them, 'What error can you find in here?' and they told me through the phone, and as well with this gentleman where I was working. Then I said to my daughter, 'Can you have a look through the file?' - and she saw the gipsies not mentioned at all. As well, I don't know if it's mentioned in this file or not, that my father he was back in there, in my country. I call it Yugoslavia because before was Yugoslavia, so my son come under the Yugoslavian passport and I call him Yugoslavian, I don't call him Macedonian."
31 In the end I am unable to accept Mr Zekiroski's evidence. First, his evidence was affected by his emotional state after the applicant's visa had been cancelled. Second, he had a poor recollection of details of the various conversations with Mr James. Third, there is the possibility that his recollection of his discussions with Mr James may have been subconsciously fabricated by his not unnatural desire to save his son. Despite my misgivings about Mr James' file notes, those notes are more likely to record any potentially significant matters raised during the discussions, and in particular the interview of 21 March 2003. In these circumstances I am not prepared to find that the issue of the applicant's gypsy ethnicity was raised either during the 21 March interview or later, or was put before Mr James in such a way as to lead him to think it was referred to as being part of the applicant's case.
32 The final alleged error is that the Minister failed to accord the applicant procedural fairness in that, because the interview of 18 February 2003 was cut short due to the time constraints imposed by the prison, the applicant was denied the opportunity to put elements of his case before the Minister.
33 The obligation to accord procedural fairness is an "underlying fundamental principle" (NABC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 138 at 142 [94] per Allsop J) controlling the making of decisions in exercise of governmental power which affect a person's rights and interests: see also Kioa v West (1985) 159 CLR 550. The obligation concerns the manner in which a decision is made and, more particularly, the manner by which the person whose rights or interests are affected by the decision is made aware of the issues which fall for decision and of material adverse to him which the decision-maker proposes to take into account, and the extent of his opportunity to be heard. The content of the obligation varies according to the statutory framework, according to the objects and nature of the power to be exercised, according to the issues involved and their consequences for the rights and interests of the person affected by the decision, and depends upon the manner in which the decision-maker approaches the questions to be determined, as well as other circumstances.
34 It should be noted that the duty to afford a hearing is conceptually distinct from any duty to inquire into particular issues by obtaining information that is readily available and of critical importance, in respect of which see Luu v Renevier (1989) 91 ALR 39, 50; Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178-9; compare Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [31]; Azzi v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 120 FCR 48 at 71-73 [102]-[112] (overruled in part by WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277); see also WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at [34]; generally, M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3rd ed, 2004) at 268-274. The line between the two may blur in cases where the information it is said that the decision-maker is obliged to seek out is to be obtained from the person affected by the decision.
35 The existence of an obligation to afford a hearing is not at issue here. In a certain sense neither is the content of the hearing rule because, as will be seen, the applicant was given ample opportunity to be heard generally, as well as extensive guidance on the issues to be considered and decided upon by the Minister. The applicant's argument that the Minister failed to accord him procedural fairness focuses very heavily on the interview with Mr James on 18 February 2003. Shortly stated, the contention is that procedural fairness was denied when Mr James failed to complete the interview and to ask the applicant the questions he would have asked had he completed the interview. The issue is whether the failure to complete the interview and to ask the remaining questions denied the applicant an opportunity to put elements of his case before the Minister, and implicitly, whether the time that was not given and the questions that were not asked could have elicited information and argument that the applicant could not have provided otherwise.
36 Before I begin to examine the interview itself, it is necessary to emphasise again that on several occasions prior to the interview the applicant was notified that he had the opportunity to make written or oral submissions to the Department. The notices of intention to cancel sent to the applicant on 17 November 2001 and 17 December 2001 both stated that the applicant was entitled to make such comments as he considered relevant to his circumstances. These letters enclosed a copy of the Minister's Direction No 21 detailing the factors relevant to the exercise of the Minister's discretion under s 501.
37 Similarly, Mr James' letter of 29 October 2002 encouraged the applicant to make submissions. The applicant responded to the invitation. In his comments the applicant expressed his wish to meet a representative of the Department to discuss his circumstances personally. Thus it was clear that the applicant had not said all he had to say prior to the 18 February interview. However, the question posed by the requirement of procedural fairness is not whether the applicant had said all he had to say, but whether in the circumstances he had a fair opportunity to say all he had to say. If, when given an opportunity to be heard, a person affected by a decision voluntarily reserves his comments to be made at another time, the decision-maker is not necessarily compelled to provide a further opportunity for the case to be put.
38 The form of the 18 February interview was dictated by the pro forma typed document headed "Interview Notes with Visa Holder for consideration of visa cancellation due to character grounds" which Mr James used to conduct the interview. It requires specific questions to be asked and provides a space for the answer to be recorded. The first page deals with the basic details of the interview - date, time, place, and the names of interviewee and interviewer. Below that space is the following message:
"The visa holder is to be informed that:
a) he/she has rendered himself/herself liable for cancellation of their visa due to their:
· substantial criminal record; or
· association; or
· past and present criminal conduct; or
· past and present general conduct; or
risk of future conduct.
b) the purpose of this interview is to afford the interviewee an opportunity to make known any personal or other issues, that they wish to be taken into account by the Minister or delegate when considering their case.
c) the interview will be taped and the interviewee given a duplicate copy of the interview for their records."
I think it fair to assume that the practice the Department required of its officers was to state these matters to the interviewee, in at least so many words, at the commencement of the interview. In the absence of evidence to the contrary, I infer that Mr James complied with this requirement.
39 The pro forma document is typewritten with spaces underneath each question for the applicant's answers to be recorded by hand. The document runs to 11 pages. There are 64 questions that the interviewing officer is to put to the interviewee. Of these, 57 appear to have been answered by the applicant. The interview was cut short due to time constraints imposed by the prison. At the top of the final page of the document is a note which states: "[Ran out of time allowed by prison]." The questions on page 11 are unanswered.
40 The first 16 questions are contained in a section headed 'Personal History'. They deal with basic personal details - name, place and date of birth, and overseas travel history. They also address some matters concerning the interviewee's migration to Australia: whether there were difficulties in the interviewee's place of birth or upon their arrival in Australia, and the extent of the interviewee's family and community connections in each country. The final question is concerned with the interviewee's medical history. In answer to this question the applicant referred to three health issues; his psychiatric medication, methadone treatment and Hepatitis C infection.
41 The next section is headed 'Criminal History'. Question 17 requires the interviewer to put to the interviewee his criminal history and police reports, and ask for comment. There are three pages provided for comments. It is obviously anticipated that this will be a major element of the interview, and that the interviewee will take the opportunity to explain the circumstances of his offence, and events and conduct subsequent to his conviction to mitigate the perception of "poor character" that is the primary consideration in making a decision under s 501. This is reinforced by questions 18 to 28 which, generally speaking, probe in detail for comment on those matters. So, even if the applicant has not "put his case" in relation to his criminal history in answer to question 17, questions 18 to 28 each provide a distinct opportunity to do so in various respects.
42 The third section is headed "Personal History". It is principally concerned with the interviewee's marital status and any children the interviewee might have. Since the applicant is unmarried and does not have a de facto partner but merely a girlfriend (or did at the time), most of the questions were inapplicable, and Mr James indicated that fact with a "dash" in the space below each question. The fourth section is concerned with "Family and Friends". The questions relate to the existence and details of the interviewee's relatives other than any partner and children. The fifth section concerns the interviewee's education, employment status and professional, commercial and community activities.
43 All the questions so far have a "matter of fact" character to them - they are not framed in such a way that the interviewee would be inclined to make his answers to those questions the basis of an argument as to why his visa should not be cancelled. They are designed only to elicit relevant facts, albeit facts with considerable significance to the ultimate decision whether or not to cancel the interviewee's visa.
44 Questions 58 to 64, which were not put to the applicant during the interview of 18 February 2003, are contained in a section headed "Consequences of Visa cancellation". With the possible exception of the last question, they are of a markedly different character to the questions that have gone before. The questions are as follows:
"58. What is your reaction to your possible visa cancellation and removal from Australia? What hardship would it cause you if any?
59. What degree of hardship would your visa cancellation and removal from Australia cause your spouse/defacto and children (if any)?
60. What degree of hardship would your visa cancellation and removal from Australia cause your family?
61. Is there anyone else (including business or other ties) that may be caused hardship by your removal from Australia?
62. If you wish you may write a letter expressing your views regarding your possible visa cancellation and removal from Australia. (state whether interviewee is intending to write)
63. Do you have any further information that you consider relevant?
64. Have you had any previous contact with the Department of Immigration and Multicultural Affairs [sic]?"
45 It will immediately be apparent that questions 58 through 61, which are asking for the interviewee's opinion about possible hardship being caused by the cancellation of the interviewee's visa, are designed to afford the interviewee an opportunity to argue his case. The same is apparent in relation to question 63. Before this point in the interview, the only time when this type of question is asked is in relation to the interviewee's criminal history. The questions at the end of the interview do not touch upon that criminal history. Question 62, which is not expressed in the form of a question, would convey to the interviewee that his opportunity to make submissions remains open after the conclusion of the interview.
46 The applicant did not make any further written submissions to the Minister (or to Mr James). Perhaps this may have been because he was not aware that the opportunity remained available. However, following the applicant's further conviction in May 2003, Mr James interviewed the applicant again. This interview took place on 8 August 2003. Mr James' typed note of the interview, headed "Mr Steven Zekiroski - comment on 15 May 2003 Victoria Police report", read:
"I interviewed Mr Zekiroski shortly after 2:00 PM on 6/08/03 in relation to the 15/05/03 Victoria Police report of his most recent offences. I read out the report and asked Mr Zekiroski for his comment.