Zekiroski v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2005-03-04|Before: Hely JJ

THE COURT 1 This is an appeal from a decision of a judge of the Court on 8 October 2004, dismissing an application made pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the respondent ("the Minister") to cancel the appellant's visa under s 501(2) of the Migration Act 1958 (Cth) ("the Act").

Background 2 The appellant was born on 28 June 1975 in an area which was then part of the Socialist Federal Republic of Yugoslavia and is now in the Republic of Macedonia. The appellant entered Australia on 29 August 1984 and since that date has resided on a permanent basis in this country. His decision to move to Australia was prompted, at least in part, by the migration to Australia of his father, three years earlier. 3 The appellant was the holder of a Transitional (Permanent) Class BF Visa, which, other things being equal, would have entitled the appellant to an indefinite stay period. 4 However, the appellant has an extensive criminal record which includes numerous convictions for minor crimes and, more recently, transgressions of a more serious nature, largely involving the theft of motor vehicles and related offences. The appellant has, on three occasions, been convicted of offences for which sentences of at least twelve months imprisonment were imposed. 5 On 27 November 2001, and again on 17 December 2001, the appellant, who was in custody at the time, received a notice of intention to cancel his visa under s 501(2) of the Act. On two occasions thereafter, the appellant was interviewed by Mr James, an officer of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department"). By notice dated 22 September 2003, the appellant was advised that his visa had been cancelled. 6 Part 9 of the Act contains provisions that allow the Minister to cancel a person's visa on "character grounds". Section 501 relevantly provides: "(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test… Character test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7));… (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more;…". 7 Although at the time of service of the notices, the appellant had only been sentenced to one term of imprisonment exceeding twelve months, the Minister relied on s 501(6)(a) as the ground for possible cancellation of the appellant's visa. The legislative basis for the Minister's decision to issue a notice under s 501(2) has never been the subject of any challenge by the appellant, it being accepted that the appellant has a "substantial criminal record" for the purposes of s 501 of the Act. The appellant instead submits that the Minister should have determined not to cancel his visa on discretionary grounds.

Application for review before the primary judge 8 Before the primary judge, the appellant relied upon five grounds in support of his application for review. Of these grounds, only one bears significance to the current appeal and is set out in the Amended Application filed 11 November 2003, in the following terms: "1. … (e) the Respondent failed to allow in connection with making the decision time or opportunity for the applicant to respond to all relevant questions at interview" 9 The "interview" referred to in the Application took place on 18 February 2003 and was the first of two interviews conducted by Mr James. 10 It was not in contention that the 18 February 2003 interview was cut short by time constraints, with the result that Mr James failed to ask the appellant questions 58 to 64 (inclusive) of a pro forma document titled "Interview Notes with Visa Holder - For consideration of visa cancellation due to character grounds". 11 The appellant submitted that this omission denied him the opportunity to put elements of his case before the Minister which resulted in a denial of procedural fairness.

The reasoning of the primary judge 12 The primary judge observed at [35] that the issue arising implicitly from the procedural fairness ground was "…whether the time that was not given and the questions that were not asked could has elicited information and argument that the applicant could not have provided otherwise". 13 In setting out the events leading up to the 18 February 2003 interview, the primary judge referred at [37] to a letter dated 29 October 2002 from Mr James to the appellant, in which Mr James invited the appellant to make submissions. The primary judge observed that the appellant did avail himself of this opportunity and responded by way of written submissions. The primary judge noted that the appellant, in his written response, "…expressed [a] wish to meet a representative of the Department to discuss his circumstances personally". This, the primary judge observed, was an indication that "…the applicant had not said all he had to say prior to the 18 February interview". However, the primary judge noted that "…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". 14 The primary judge then, at [38] to [45], proceeded to analyse, in some detail, the 18 February 2003 interview. His Honour observed that the interview structure and content had been dictated by a pro forma document which sets out a series of sixty four questions, each falling under one of six sections headed variously 'Personal Details', 'Criminal History', 'Personal History', 'Family and Friends' and a fifth section, described by the primary judge at [42] as one that '…concerns the interviewee's education, employment status and professional, commercial and community activities'. The sixth and final section was the subject of separate consideration as it contained the questions which were omitted from the interview. 15 At [43] of his reasons for judgment, the primary judge observed that all of the questions falling under the five sections referred to above: "…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".

16 This stood in stark contrast to the questions contained in the final section headed "Consequences of Visa cancellation", which the primary judge described at [44], as being "…of a markedly different character to the questions that have gone before".

17 In particular, at [45], the primary judge identified questions 58 through 61 and question 63 as being "designed to afford the interviewee an opportunity to argue his case". 18 However, the primary judge did not confine his analysis to the 18 February 2003 interview but proceeded to consider the procedural fairness issue by reference to an interview of the appellant which took place on 8 August 2003 ("the second interview"). This interview was also conducted by Mr James. 19 After setting out the text of Mr James' typed note of the second interview, the primary judge made a number of observations at [48], including that "the interview progressed from the specific to the general". His Honour said of the eighth paragraph of the interview note: "…the applicant's comments are at their most general and argumentative: he explains how seriously he takes the matter, how significant the consequences will be for him, and how strongly the unpleasant prospect of those consequences will drive him to reform his behaviour in order to stay in Australia". At [49] his Honour said: "As appears from the last sentence [of the interview note], Mr James provided the applicant with a further and final opportunity to say "anything else he wished to submit", and the applicant declined"…It [the second interview] had provided the applicant with another opportunity to put his case to Mr James on whatever basis he wished. If there was any deficiency in the fairness of the decision-making procedures resulting from the failure to complete the earlier interview (and there was probably was), that deficiency was remedied by the opportunity afforded to the applicant during the 8 August interview". His Honour concluded that the appellant had not been denied any procedural fairness and, having found against the appellant on each of the other four grounds raised, dismissed the application.

Grounds of appeal 20 On 19 October 2004, the appellant filed a notice of appeal. The sole ground raised by the appellant is whether the primary judge erred in law by not finding that the curtailing of the 18 February 2003 interview, involved a denial of procedural fairness to the appellant. 21 We agree, with respect, with the primary judge's treatment of this question, which involved considering the 18 February 2003 interview not in isolation, but in the context of the appellant's protracted dealings with the Department and the opportunities afforded to him to put his case (both orally and in writing) to the Minister. 22 It is our view that any prejudice suffered by the appellant as a result of the truncation of the 18 February 2003 interview, was redressed at the second interview. 23 At page one of the pro forma document titled "Interview Notes with Visa Holder" it is stated that: "The visa holder is to be informed that: (a)… (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…"

24 Whilst it is true that during the 18 February 2003 interview, the appellant was not asked specific questions designed to elicit information pertaining to the consequences to him of a cancellation decision, he was, nonetheless, afforded ample opportunity to proffer this information, both prior to that interview and at the conclusion of the second interview. In effect, the objective stated in the Interview Notes was achieved as a result of the total communications between the appellant and the Department. Those communications included both interviews of the appellant, an interview with the appellant's father, a written submission made by the appellant dated 1 November 2002 and an affidavit of the appellant dated 10 November 2003 which raised the concerns mentioned below at [26] to [29]. 25 Each of the matters that the appellant said, in his 10 November 2003 affidavit, that he would have raised in response to questions which were not asked on 18 February 2003, were addressed by the appellant or raised with the Minister's delegate prior to the cancellation decision. The relevant concerns may be conveniently described below. 26 The first concern related to the appellant's health; namely, his psychiatric and hepatitis conditions and his methadone addiction. These issues were addressed by the appellant in the written submission dated 1 November 2002, in earlier questions raised on 18 February 2003 and in the second interview. 27 The second concern related to the appellant's inability to speak Macedonian. This issue arose in the course of the response to the question asked of the appellant during the 18 February 2003 interview. 28 The third and fourth concerns respectively related to the difficulties the appellant had experienced as a child in Macedonia and his lack of relatives and support in that country. Each of those issues was mentioned during the 18 February 2003 interview. 29 The last concern related to the impact of the appellant's departure from Australia on his girlfriend and on the appellant's father. However, the appellant mentioned his girlfriend during the 18 February 2003 interview but made no request that she be interviewed in connection with the possible cancellation of his visa. The delegate separately interviewed the appellant's father concerning the possible cancellation of the appellant's visa. 30 The visa cancellation decision considered the affect on the appellant and his family of a cancellation decision but considered that the "continuous nature" and the "seriousness" of his crimes outweighed those considerations and others. 31 Additionally, as Carr J pointed out in Fernando v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 975 at [29], procedural fairness does not always require the person, whose visa is subject to cancellation, be afforded an interview before the Minister decides to cancel that visa. As the primary judge observed, the appellant was invited to, and did, make written submissions in support of his case that the Minister should have exercised his discretion not to cancel his visa. No limitation was imposed on the possible content of those written submissions. 32 At the commencement of the appeal the appellant sought pro bono legal assistance. This request was first raised at the Court by letter dated 28 February 2005, of which members of this bench did not become aware until late on 1 March 2005. We consider that the application was made far too late. In any event, it is not an application that had merit given that pro bono referrals under O80 of the rules of the Court should only be made in "cases of particular need"; see Lokeni Hui v Commonwealth of Australia [2001] FCA 69 at [6] per Wilcox, Weinberg and Conti JJ. Order

33 Having regard to the foregoing the Court will order as follows:

The appeal be dismissed.

The appellant pay the respondent's costs of and incidental to the appeal, to be taxed, if not agreed.

I certify that the preceding thirty three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Marshall and Hely.

Solicitor for the Respondent: Australian Government Solicitor

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