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MIGRATION - Cancellation of visa under s.501(2) of Migration Act 1958 (Cth) - whether relevant consideration taken into account - not possible to demonstrate failure where material in issue before the Minister and in absence of Reasons of Minister.

NAHX v Minister for Immigration [2002] FMCA 250 (25 October 2002)

NAHX v Minister for Immigration [2002] FMCA 250 (25 October 2002)
Last Updated: 13 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAHX v MINISTER FOR IMMIGRATION
[2002] FMCA 250



MIGRATION - Cancellation of visa under s.501(2) of Migration Act 1958 (Cth) - whether relevant consideration taken into account - not possible to demonstrate failure where material in issue before the Minister and in absence of Reasons of Minister.



Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth)

Migration Legislation Amendment (Judicial Review Act) 2001

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228

MIMIA v Yusef (2001) 180 ALR 1

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24

Craig v South Australia (1995) 184 CLR 163

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363

Minister for Immigration & Multicultural Affairs v W157/00A [2002] FCAFC 281

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598)

Applicant:
NAHX



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ459 of 2002



Delivered on:


25 October 2002



Delivered at:


Sydney



Hearing Date:


6 September 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Mr N Poynder



Solicitors for the Applicant:


Janice Vu & Associates



Counsel for the Respondent:


Mr G Johnson



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) That the application is dismissed.

(2) That the Applicant pay the costs of the Respondent

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ459 of 2002

NAHX


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The application

1. This is an application under section 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the respondent Minister acting personally dated 9 April 2002 (and received on 2 May 2002) to cancel the Applicant's visa under section 501(2) of the Migration Act 1958 (Cth) (the "Act").

2. The Applicant applied to the Federal Court under s39B of the Judiciary Act 1903 on 7 May 2002. On 25 June 2002 Moore J ordered that the proceedings be transferred to this Court.

3. At the commencement of the hearing the Applicant sought leave to file and serve an amended application. No objection was made to this and leave was granted. In the amended application the Applicant claimed that if he is deported to Vietnam he will be forcibly separated from his family in Australia. He sought relief under section 39B of the Judiciary Act on the grounds that the respondent: (a) exceeded jurisdiction in making the decision to cancel the Applicant's visa; and (b) erred in law in arriving at the decision to cancel the Applicant's visa. The particulars provided in the amended application were that the respondent failed to take into account a relevant consideration, being the availability of methadone or heroin programs and/or alternative treatments for heroin or methadone in Vietnam, particularly in Rach Gia.

4. In written submissions the Applicant conceded that in order to succeed in the present case it must be argued that the decision of the Full Court of the Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 was incorrectly decided. An argument to this effect was put in the written submissions but not addressed at the hearing. In oral submissions Counsel for the Applicant submitted that if I was of the view that there was jurisdictional error, I should consider not handing down a decision until judgment of the High Court is delivered in the cases of Re: Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S134 and Plaintiff S157 v Commonwealth of Australia. It was submitted that there would be no major prejudice to the respondent in such an adjournment. Counsel for the Applicant had specific instructions from his client who was aware that he would stay in detention for the interim period and was content that this should occur. However for the reasons given below the Applicant has not established that there is a jurisdictional error which in the absence of s474 of the Act would provide a ground for relief under s39B Judiciary Act.

Background

5. The Applicant is a citizen of Vietnam. On 31 January 1982 he migrated to Australia under the Indo-Chinese Refugee Program. He became a permanent resident of Australia. He was granted a permanent transitional visa on 1 September 1994. He was granted a resident returned visa on 15 November 2001. It is the cancellation of this visa that is in issue.

6. The Applicant has been convicted of 28 offences since 1988, including the offence of robbery in company for which he was sentenced to one year minimum and two years additional imprisonment in 1991. The respondent considered whether the Applicant should be deported as a result of this conviction. However on 16 April 1992 a decision was made not to deport the Applicant.

7. On 29 April 1999 the Applicant was convicted of assault occasioning actual bodily harm. The assault was upon his sister who then took out an apprehended violence order against him. He was subsequently convicted of contravening the apprehended violence order and of common assault on his sister and sentenced to concurrent terms of six months imprisonment. On 30 July 1999 these sentences were confirmed upon appeal by the District Court of New South Wales.

8. On 15 November 2001 the Applicant was served with a notice of intention to consider cancelling a visa under s.501(2) of the Migration Act issued by the Department of Immigration and Multicultural Affairs (as it then was) on the grounds of substantial criminal record (within section 501(6)(a) of the Act) and past and present criminal conduct (within section 501(6)(c)). An officer of the respondent interviewed the Applicant, his sister and the sister of his former de facto wife who currently looks after his son.

9. The Applicant provided the Respondent with a letter dated 8 February 2002 from Jacaranda House Methadone Maintenance Unit in relation to his methadone treatment stating that he had attended a methadone clinic in 1998. In 2001 he was imprisoned. He continued his methadone treatment in jail. On his release he was referred to Jacaranda House and commenced on its methadone program in August 2001. He was stabilised and referred to a general practitioner in November 2001. He attended daily for his methadone. According to this letter the program stabilises clients on a set dosage of methadone and then slowly reduces the amount until the client is off methadone completely, which can take from two to five years. It was indicated that the Applicant could continue his methadone treatment during a then planned trip to Vietnam by taking an oral form of methadone for the number of days that he was in Vietnam.

10. The Applicant also provided a letter dated 26 February 2002 from his treating doctor, Dr D.Y.K. Tran, indicating that the Applicant was currently stable on methadone treatment which could be continued during a then planned visit to Vietnam with the use of tablets allowing him to remain away for up to 50 days while continuing his methadone treatment program.

11. On 25 February 2002 the Country Information Service provided a Country Information Report (document number CX62497) entitled Vietnam: Criminal Returnee on Methadone, which contained information provided by the Department of Foreign Affairs and Trade (DFAT) in response to specific questions from the Department of Immigration and Multicultural Affairs. The first of these related to the availability of methadone or heroin programs and/or alternative treatments for methadone or heroin addiction in Vietnam, particularly in Rach Gia. The second related to the likely attitude of the Vietnamese Government to a criminal heroin addict or methadone user deported from Australia. The answer to the first question is of particular relevance in this matter and is set out in full as follows:

A.1 ACCORDING TO ADVICE FROM THE DEPARTMENT OF HEALTH IN HO CHI MINH CITY, THERE IS ONE DRUG REHABILITATION TREATMENT CENTRE IN HON DAT DISTRICT KIEN GIANG PROVINCE WHICH IS 30 KILOMETRES FROM RACH GIA. THERE ARE SEVERAL DRUG REHABILITATION CENTRES IN HO CHI MINH CITY, WHICH IS 300 KILOMETRES FROM GIA RACH. WITH THE INCIDENCE OF DRUG ABUSE ON THE RISE, PARTICULARLY IN URBAN AREAS, THE NUMBER OF REHABILITATION IS INCREASING. DRUG REHABILITATION TREATMENT IS BASED ON TRADITIONAL FORMS OF MEDICATION AND COUNSELLING. METHADONE IS NOT PRESCRIBED AT THIS TIME. THE HO CHI MINH CITY PEOPLE'S COMMITTEE HAS HAD RECURRENT DISCUSSIONS WITH THE UNITED NATIONS DRUG CONTROL PROGRAM THE (UNDCP) ON THIS ISSUE, AND PROPOSES TO INTRODUCE METHADONE TREATMENT ON A TRIAL BASIS IN HO CHI MINH CITY AT AN UNSPECIFIED FUTURE DATE. UNDCP CONSIDERS THAT ACCESSIBILITY AND REGISTRATION WILL CONTINUE TO BE PROBLEMATIC SHOULD THIS INITIATIVE SUCCEED. UNDCP ALSO ADVISES THAT LACK OF REGULARITY, IMPARTIALITY AND SUPPORT SERVICES, AND THE EMERGENCE OF BLACK MARKETS ALSO LIMIT THE LIKELIHOOD OF ANY SUCCESSFUL "SUBSTITUTION" PROGRAMMES IN VIETNAM IN THE FORSEEABLE FUTURE.

12. The second question was answered as follows:

THE MINISTRY OF FOREIGN AFFAIRS IN HO CHI MINH CITY ADVISES THAT THE RETURNEE WOULD NOT BE DISCRIMINATED AGAINST AND WOULD BE GIVEN ACCESS TO DRUG REHABILITATION TREATMENT. IT IS UNLIKELY THAT THE FACT OF THE PERSON'S DEPORTATION WOULD LEAD TO UNFAVOURABLE TREATMENT, HOWEVER, IF THE RETURNEE WERE PLACED IN A DRUG REHABILITATION CENTRE IN WHICH DRUG USE PLUS CRIMINALITY ARE PART OF THE PROFILE OF THE INMATES, WHICH UNDCP CONSIDERS LIKELY, THEY MAY BE SUBJECT TO GENERAL DISAPPROVAL / DISCRIMINATION WHICH IS DIRECTED AT CRIMINAL DRUG USERS IN VIETNAM.

13. By a decision dated 9 April 2002 the respondent cancelled the Applicant's visa. The Minister's decision was endorsed at the end of a 20 page memorandum entitled "Issues for Consideration of Possible Cancellation of Resident Return Visa under s.501(2) of the Migration Act 1958" which had been prepared by an officer of his Department on 4 April 2002 and cleared by two other officers. The Minister's decision is recorded at the end of the memorandum. He signed and dated the decision page of the memorandum and apparently initialled and dated the first page. The date inserted is 9 April 2002.

14. The Applicant argues that the memorandum provided to and signed by the respondent fails to make any reference to the issue of how the Applicant would be able to access methadone treatment in Vietnam and how this will affect him. Failure of the respondent's officer, and hence of the respondent, is said to amount to a failure to consider a critical issue in relation to the visa cancellation amounting to a jurisdictional error.

15. The memorandum is addressed to the Minister. It commences with a statement that its purpose is to seek the Minister's decision on whether the Applicant passes the character test in s.501(6) of the Act and if not whether his visa should be cancelled pursuant to s.501(2). It sets out personal and visa details of the Applicant and identifies the relevant grounds for cancellation of the visa. It lists details of some twenty eight offences for which the Applicant has convictions and three further charges which had not yet been dealt with as at the time of preparation of the memorandum. It then states "It is open for you to find on the above facts that there is a reasonable suspicion that [the Applicant] does not pass the character test due to the fact that he has been sentenced to a term of imprisonment of 12 months or more and also having regard to his past and present criminal conduct". It then states under the heading "Discretion:" "If you are satisfied that [the Applicant] does not pass the character test you must consider the exercise of your discretion to decide whether [the Applicant] should be permitted to remain in Australia".

16. The memorandum refers to the directions issued by the Minister under s499 of the Act to guide delegates and the AAT in the exercise of the discretion to cancel a visa. It notes that the Federal Court has held that when the Minister decides a case personally he is not bound by his s499 directions, that it is open to him to be guided by the factors set out in the direction but that in balancing the relevant factors in this case he is free to place whatever weight he regards as appropriate on those factors. It goes on to deal with various matters in accordance with the approach of the direction under s.499 (Direction No.21 of the Minister: Visa Refusal and Cancellation under s.501 of the Migration Act 1958). Thus it deals with the considerations which the Minister has directed decision-makers to have regard to when exercising the discretion to decide whether or not a non-citizen should be permitted to remain in Australia. It provides details and refers to annexures of copies of relevant documents. It addresses the "primary considerations" of the protection of the Australian community, the expectations of the Australian community and the best interests of the children of the Applicant. It then addresses "other considerations" which paragraph 2.17 of the Minister's Direction provides may be taken into account by a decision-maker. It suggests that it is the government's view that, where relevant, it is appropriate that these matters be taken into account. The memorandum deals with issues relating to the Applicant's family, his alleged memory problems following a brain injury, the fact that he needs to take methadone every day, a claim of his sister that if he were to go to Vietnam he would die as there would be no one to take care of him, his education and work experience, his future plans, issues concerning his return to Vietnam and the presence of his entire family in Australia. The memorandum suggests that it is open to the Minister to find from the information given that the cancellation of the Applicant's visa and his subsequent removal from Australia may cause significant hardship to his family, in particular to his son and his sister in Australia.

17. The memorandum discusses "other international obligations". It then proceeds to consider what are described as "any other relevant considerations". It is at this point that the memorandum details the Applicant's methadone treatment. It begins by indicating that in an interview on 11 January 2002 the Applicant had mentioned that he had been on a methadone program for four to five years. It refers to the two letters provided by the Applicant in relation to his methadone treatment, that is the letter from the Jacaranda House Methadone Maintenance Unit and the letter from Dr Tran referred to above. It indicates that a copy of these documents is at Annexure N. It quotes from an assessment report provided by the Protection Services Section. As in all other instances where it refers to relevant documents it indicates that a copy of the full assessment report is annexed to the memorandum (Annexure M). The memorandum indicates that in the assessment report provided by Protection Services Section it is stated:

CX62497 (DFAT 25/2/2002) titles (sic) Vietnam: Criminal Returnee on Methadone reports that :

According to advice from the Department of Health in Ho Chi Minh city, the returnee would not be discriminated against and would be given access to drug rehabilitation treatment. It is unlikely that the fact of the person's deportation would lead to unfavourable treatment, however, if the returnee were placed in a drug rehabilitation centre in which drug use plus criminality are part of the profile of inmates, which UNDCP considers likely, he may be subject to general disapproval/discrimination which is directed at criminal drug users in Vietnam.

18. The memorandum quotes further from the Protection Services Section Report in relation to treatment of returned criminal offenders to Vietnam. It notes that there is a Memorandum of Understanding (MOU) between the Vietnam and Australian governments providing for the return of Vietnamese citizens from Australia to Vietnam and suggests that `It is submitted that if you decide to cancel [the Applicant's] visa, the issue of a travel document for [the Applicant] would be subject to the terms and agreement of the MOU'.

19. The memorandum concludes by stating that all matters raised by or on behalf of the Applicant have been addressed in line with the Direction. Under the heading "Evidence or other Material on which Facts/ Background Information is Based" it lists the annexed documents ("A" to "N") which (with one exception) appear in the Court Book or bundle of relevant documents after the memorandum. The Report provided by Protection Services Section is described as Annexure M. It is followed in the list by Annexure N which consists of the letters from Jacaranda House and Dr Tran.

20. The memorandum concludes with the heading: "Minister's Decision on Cancellation under s.501(2)". It reads "PART E:DECISION I have considered all relevant matters including (1) an assessment of the Character Test as to defined by s.501(6) of the Migration Act 1958, (2) my Direction under s.499 of that Act and [the Applicant's] comments, and have decided that:"

The decision page then continues with a request (presumably addressed to the Minister) to please delete whichever is NOT applicable" of four alternative decisions.

It appears that the Minister has effected a crossing out of the first three alternatives which leaves the decision as:

"(d) I reasonably suspect that [the Applicant] does not pass the character test and [the Applicant] has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa." The memorandum is signed and dated by the Minister at the bottom of the decision page. The final page contains signatures, dates and identification of the officers who prepared and cleared the memorandum.

21. I have indicated that the memorandum itself refers to a number of annexures and that the Court Book includes these annexures which are marked with hand written letters corresponding to the list of annexures included in the memorandum. There is one exception. Annexure B (the criminal history of the Applicant provided by the NSW Police Service) is not contained in the Court Book. Annexure A appears to be complete and is followed by Annexure C. In addition to the hand written letters on the first page of each annexure, each page in the memorandum and the annexures bears a hand written number in the top right hand corner. An affidavit sworn by Sharon Elizabeth Hanstein, a solicitor in the employ of the solicitors for the Respondent who had day to day conduct of this matter and filed in court, states that she inspected the copy of the Departmental file CLF2002/20334 provided to her office for the purposes of these proceedings. She attests that the folios of the copy Departmental file are numbered at the top right hand corner in ascending order, beginning with `1' on the folio that is at the back of the copy file. Folios 136 to 1 of the copy Departmental file are reproduced in the same physical order as they appear in the bundle of relevant documents filed in these proceedings from pages 6 to 131 inclusive, except that folios 113 to 106 of the Departmental file are not reproduced in the bundle or relevant documents. In other words it is suggested that the Departmental file contains all of the material bearing consecutive folio numbers which appears in the Court Book or bundle of relevant documents in the same order as the memorandum and annexures to the memorandum. This is of particular relevance because the Protection Services Section assessment (Annexure M) which begins at folio number 20 of the Departmental file (p.112 of the Court Book) refers specifically to the Country Information Report CX62497 quoted above. It does not include it in the list of Country Information which follows the fourteen page assessment dated 8 March 2002 (folio numbers 6 and 5 of the Departmental file and pages 127 and 126 of the Court Book). However the next document appearing in the Court Book (at pages 128 - 129) and (and bearing folio numbers 4 and 3) is a copy of that Country Information report DX62497 dated 25 February 2002 with an entry date of 28 February 2002. The two page report is followed by the consecutively numbered reports from Dr Tan and from Jacaranda House Methadone Maintenance Unit which are marked as Annexure N (at pages 130 - 131 of the Court Book and folio numbers 2 and 1). The final document in the Court Book (at pages 132 - 133) is a notice of visa cancellation dated 2 May 2002 which bears the letter A on the first page but has no folio numbers.

22. It is apparent from the copy of the full Country Information Report CX62497 contained in the bundle of relevant documents that the extract quoted in the assessment of the Protection Services Section of the Department takes the first line of the answer to question one which refers to advice from the Department of Health in Hoi Chi Minh City and continues with the concluding part of the answer to question two and that this inaccurate quote has been repeated in the same form in the memorandum as set out above.

23. The Applicant argues that the memorandum provided to the Minister fails to make any reference to the issue of how the Applicant would be able to access methadone treatment or heroin programs and or alternative treatments for heroin or methadone in Vietnam particularly in Rach Gia. These issues, discussed in Q1 and A1 in the DFAT report are said to be of critical importance to the Applicant's case. The Applicant had commenced a methadone program in August 2001 that would continue for two to five years, he was required to attend daily and during his planned visit to Vietnam his treatment was to have been continued by oral medication for the number of days that he was to be in Vietnam. A highly relevant issue was said to be how the Applicant would continue his methadone program if he were to be deported to Vietnam.

24. The Applicant's written submissions suggest that it was not clear from the Court Book or the bundle of relevant documents whether the DFAT report was actually annexed to the memorandum (although it was conceded that its inclusion in the bundle of documents suggested that it was so included). The reference in A1 `particularly Rach Gia' was said to strongly suggest that the question was specifically directed to the Applicant's case.

25. In oral submissions Counsel for the Applicant accepted, as a result of the affidavit evidence of Ms Hanstein, that the Country Information Report was in the Department of Immigration file which was before the Minister. It was also conceded that it was likely, although it was not dealt with specifically in the affidavit, that the DFAT Report was annexed to the documents that were before the Minister. However it was submitted that simply because the Minister had the DFAT report in the bundle of documents before him did not necessarily mean that the failure to refer to those critical issues was not an error of law in so far as it was said to be a failure to take into account relevant considerations. It was said that the failure of the Minister's officer in the memorandum, and hence of the Minister, to make any reference to the issue of how the Applicant would be able to access methadone treatment in Vietnam and how this would affect him, amounted to a failure to consider a critical issue in relation to the visa cancellation.

26. Counsel for the Applicant submitted that there were three relevant questions:

First, did the Minister have the Country Information Report (the `DFAT Report') before him;

Secondly, did the Minister take into account the relevant parts of the DFAT Report, that is, question 1 and answer 1, when making his decision; and

Thirdly, was the Minister bound to take question 1 and answer 1 into account when making his decision.

27. On the basis that on the affidavit evidence it was apparent that the DFAT Report was on the Departmental file so that the answer to the first question was `yes', Counsel for the Applicant proceeded to consider the second question. He submitted that whether or not the material was on the file before the Minister, it was the duty of the Minister to address the issues set out in question 1 and answer 1 of the DFAT report not simply to ignore it. It was suggested that the memorandum set out the matters which the officer considered to be relevant to the decision and that by signing the document the Minister had expressly adopted the reasoning of the officer so that for the purposes of these proceedings the memorandum was the "decision" of the Minister (that is the memorandum at pages 6-25 of the Court Book or bundle of relevant documents).

28. In other words it was submitted that the memorandum constituted the decision of the Minister which one should consider to determine whether relevant considerations were taken into account (see MIMIA v Yusef (2001) 180 ALR 1 at [37] per Gaudron J and at [69] per McHugh, Gummow and Hayne JJ) and that the `decision' of the Minister failed to consider a relevant issue relating to methadone treatment in Vietnam.

29. Further, the Applicant submitted that the Minister was bound to take the material in the DFAT Report into account. The factors that the decision-maker was bound to consider in making the decision were to be determined by construction of the statute itself but where the statute did not expressly state the considerations to be taken into account it would be necessary to determine them by implication from the subject matter, scope and purpose of the Act. ( Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. See Mason J at pp 39 - 40.)

30. It was suggested that the direction under s.499, while not binding on the Minister, provided a summary of what the Minister regards as relevant considerations in making cancellation decisions. Having embarked on a consideration of the Applicant's methadone treatment under the heading of `Other Considerations' the officer, and hence the Minister, had determined that to be a relevant consideration. Accordingly the Minister was said to be bound by the structure of the Act to take into account all of the relevant considerations in relation to that particular issue including the absence of methadone treatment in Vietnam. It was submitted that his failure to do so amounted to a jurisdictional error within the meaning of Craig v South Australia (1995) 184 CLR 163 as adopted in Yusef's case.

31. Counsel for the Applicant accepted that if there were a jurisdictional error in this sense the Applicant could not succeed on the reasoning of the Full Court of the Federal Court in NAAV. The written submissions of the Applicant argue that NAAV was incorrectly decided. These arguments were not pursued before this Court.

The Respondent's submissions

32. The Respondent argues first that the Applicant's argument cannot succeed in the face of NAAV v MIMIA [2002] FCAFC 228 as the majority view is that because of the privative clause provision in s.474 of the Act a decision is not invalidated by reason of a jurisdictional error such as a failure to take into account a relevant consideration.

33. It was further argued that, even in the absence of the privative clause, there would not be reviewable error. It was suggested that the alleged relevant consideration (the ability of the Applicant to carry on on a methadone program in Vietnam) was not truly a relevant consideration at all. It was further argued that the Minister did consider the memorandum, which at least impliedly pointed to the factor which the Applicant claims not to have been considered (in various references to his involvement in a methadone program and in the attachments in relation to arrangements for him to continue on medication while travelling to Vietnam). It was suggested that, read fairly, these passages indicated both that the Applicant had a requirement for methadone and that it would not be available to him in Vietnam. Thus, even if one assumed that the DFAT Report was not before the Minister, it was not shown that he did not have regard to the alleged relevant consideration. The weight to be given to such consideration was a matter for the Minister.

34. In oral submissions it was submitted, on the basis of the affidavit of Ms Hanstein, that the DFAT Report was before the Minister. Further it was submitted that there was no warrant in the authorities for treating the text of the memorandum as though that were a statement of reasons from the Minister. It was said that once one concluded that the Minister did have before him the DFAT Report then the inference to be drawn was that he had had regard to all of that material.

35. It was submitted that even if the availability of methadone and a treatment program in Vietnam was a relevant consideration and even if the specific information in the particular question and answer of the DFAT Report was a relevant consideration (it was submitted that it was not on the basis of the Peko-Wallsend case), the absence of a specific reference in the memorandum did not mean that the Minister failed to have regard to it in circumstances where it was plainly before him and there was no specification of precisely what he took into account in the sense of giving more weight to than not in reaching his decision.

36. Further it was submitted that the text of the memorandum did say various things to alert the Minister specifically to the fact that the Applicant was on a methadone program and that arrangements had been proposed to give him tablets from Australia during a planned short visit to Vietnam. It was claimed that it would be difficult to conclude, even from the memorandum itself, that the Minister was not aware of the fact that the Applicant may have difficulty maintaining a methadone program or methadone treatment in Vietnam.

Application of the Law

37. It was common ground that the Tribunal's decision is a privative clause decision within the meaning of s.474(2) of the Migration Act and is thus subject to the limitations of judicial review prescribed by s.474(1) which were introduced by the Migration Legislation Amendment (Judicial Review Act) 2001 as applicable to all applications made to the Court on and from 2 October 2001.

38. The proper construction of s474 has been the subject of detailed consideration by the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228. Each member of the Court delivered a separate judgment in relation to each appeal. All agreed that s.474(1) is constitutionally valid and that the amendments have removed what would otherwise be errors in the making of some migration decisions from the scope of judicial review by validating decisions that might otherwise have been invalid. The Applicant conceded that to succeed in the present case he must argue that NAAV was incorrectly decided. Such an argument assumes that there is a jurisdictional error that would, absent the privative clause, provide a basis for judicial review under s.39B of the Judiciary Act 1903.

39. In considering the issue of whether there is a jurisdictional error it is helpful to consider the three questions posed by Counsel for the Applicant. The first is whether the Minister had the DFAT report before him. On the basis of the material in the Court Book or bundle of relevant documents, the notations on the material, the listing of annexures in the memorandum addressed to the Minister and the affidavit evidence from Ms Hanstein as to the contents of the Departmental file as indicated by the folio numbers appearing on the top of relevant pages including those pages which constitute the DFAT Report, I am satisfied that the document was in the material before the Minister. In this respect the case is to be distinguished from the situation in Minister for Aboriginal Affairs v Peko-Wallsend Ltd where the Minister in question was apparently unaware of relevant material sent to his Department.

40. The second question is whether the Minister took into account the relevant parts of the DFAT Report, that is question 1 and answer 1 when making his decision.

41. The Applicant argued that as the issue relating to methadone treatment in Vietnam was not considered in the Departmental memorandum and that as this should be regarded as the decision of the Minister it should be concluded that question 1 and answer 1 of the DFAT report were not matters which were taken into account by the Minister. The Respondent disagreed, suggesting that the memorandum was not a statement of reasons from the Minister.

42. Section 501G is relevant. It provides:

(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:

(a) refuse to grant a visa to a person; or

(a) cancel a visa that has been granted to a person; the Minister must give the person a written notice that:

(c) sets out the decision; and

(d) specifies the provision under which the decision was made and sets out the effect of that provision; and

(e) sets out the reasons (other than non-disclosable information) for the decision; and... ...

(3) A notice under subsection (1) must be given in the prescribed manner.

(4) A failure to comply with this section in relation to a decision does not affect the validity of the decision.

43. This provision envisages that the Minister will give a written notice that sets out the decision and the reasons for the decision. In this case the bundle of relevant documents contains, at pages 132 and 133, a letter to the Applicant dated 2 May 2002 from the Manager of the NSW Character Section of the Department. The letter is headed Notice of Visa Cancellation under subsection 501(2) of the Migration Act 1958.

44. This letter states that the Minister decided to cancel the Applicant's visa on 9 April 2002 pursuant to s.501(2) of the Act and the effect of the decision. It does not set out reasons for the decision other than to state that `the particular grounds under which you do not pass the character test are subsections 501(6)(a) and (c) of the Act'.

45. The reasons for the Minister's decision are not apparent from this notice. As was said by Branson J (with whom Goldberg and Allsop JJ agreed) in Minister for Immigration & Multicultural Affairs v W157/00A [2002] FCAFC 287 at [37]) the reasons for a decision:

"are logically distinct both from the decision itself and from the factual findings upon which the decision is based....To give reasons for a decision is to disclose the process of reasoning which led the decision maker from the factual findings to the decision."

46. In this case there is a written notice under s.501G(1) but it does not disclose the process of reasoning or set out the reasons for the Minister's decision. It is therefore necessary to consider whether the departmental memorandum sets out the reasons for the Minister's decision. There are a number of decisions of single judges of the Federal Court (see the references in para [47] of W157/00A) suggesting that a document such as the memorandum in question may set out the reasons for the Minister's decision. However the memorandum in this case, as in W157/00A, does not make any recommendation to the Minister. It does not present suggested conclusions supported by appropriate reasons but rather leaves it open to the Minister to make any one of the four decisions set out for his consideration at the conclusion of the memorandum. The content does not suggest that a decision one way or the other was inevitable. It discusses issues which point in favour of the interests of the Applicant's child being served by him remaining in Australia was well as issues (such as the criminal record) which tend to support a decision to cancel the visa. In various places the memorandum makes it clear that its purpose is to seek the Minister's decision, that it is open to him to make certain findings and that if he is satisfied that the Applicant does not pass the character test he must consider the exercise of his discretion to decide whether the Applicant should be permitted to remain in Australia. It also notes that it is open to the Minister to take certain issues into account in relation to the so called primary considerations and other considerations. The document refers to the fact that the Direction under s.499 of the Act is not binding on the Minister although it is open to him to be guided by the factors set out in the Direction. It points out that the Minister is free to place whatever weight he regards as appropriate on those factors but does not purport to assign any particular weight to any particular factor nor does it state in any way either expressly or impliedly that the decision of the Minister was based only on the information contained in the memorandum. Further, in the final part of the memorandum, headed `Minister's Decision on Cancellation', the Minister states that he has considered "all relevant matters." The process of reasoning which led the Minister to the decision to cancel the Applicant's visa is not apparent. In these circumstances I am not satisfied that the memorandum constitutes reasons for the decision of the Minister.

47. Given that the memorandum does not constitute reasons for the decision of the Minister it is not possible for the Court in this case to identify the basis of his decision solely by reference to the memorandum. It does not explain what his reasons were. It cannot be concluded that the Minister's decision was based only on the information contained in the memorandum.

48. As in W157/00A the Minister's statement that he considered "all relevant matters" compounds the difficulty of identifying from the memorandum the matters that were "before the Minister" (see Branson J at [52]). As in that case (which involved the question of whether the Minister took into account material not included in the memorandum itself but contained in attachments to the memorandum), it is not clear from the memorandum what were the matters considered by the Minister, as opposed to the officer who prepared the memorandum, to be relevant. It is not clear whether the Minister considered relevant all or only some of the matters identified in the memorandum or whether he also considered as relevant matters not identified in the memorandum (such as the answer to Q1 in the DFAT Report) - which might have been considered relevant because of the content of the Annexures to the memorandum. The question of the Applicant's heroin addiction, his present reliance on methadone and his need for treatment were considered in the memorandum and in annexures before the Minister. Furthermore it is clear from the folio numbering of the annexures and the DFAT Report that the Report itself was in the documents placed before the Minister. The "universe of material" (see Allsop J in W157/00A at [108]) available to the Minister in the memorandum, annexures and DFAT Report (taken together) contained sufficient information (despite the inaccurate summary of the DFAT Report in the memorandum) to enable the Minister to identify the issue of the Applicant's reliance on methadone and the absence of methadone treatment in Vietnam and to take it into account. In the absence of reasons for the decision and in light of the form of the memorandum, the nature and contents of the memorandum and the documents before the Minister at the time that he made his decision and the Minister's assertion that he had considered "all relevant matters", it cannot be concluded that the Minister failed to read and consider any of that material or that the material was insufficient to enable him to take into account the issue of the Applicant's reliance on methadone and the absence of methadone treatment in Vietnam. Indeed it cannot be known whether the Minister did or did not take into account particular material before him, such as the DFAT Report. In these circumstances it is not open to the Court positively to conclude that he failed to take it into account. Hence the Applicant has not established that the Minister has failed to consider the issues in question.

49. These findings mean that it is not necessary to determine the issue of whether the issues in the DFAT report were in fact considerations which were required to be taken into account (see Allsop J in W157/00A at [112]).

50. In this respect however I note that as was indicated by Mason J in Peko-Wallsend at [39] the ground of failure to take into account relevant considerations can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision. The factors a decision-maker is bound to consider in making the decision are determined by construction of the statute conferring the discretion. As Mason J at 39 stated "if the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors ...are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act." Where, as here, a discretion is conferred in very general terms, it is normally a matter for the decision-maker to decide what is relevant and what is not and the weight to be accorded to matters he regards as relevant (Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375.

51. It was conceded by the Applicant that even if there was a failure to take into account a relevant consideration, the majority judgments in NAAV mean that the application cannot succeed. It is clear that the majority in NAAV held that given s474(1) a decision would not be invalidated by reason of what, in the absence of that provision, would be a failure to take into account a relevant consideration. As was said by Black CJ in NAAV at [30]:

I agree that the enactment of s474(1) has the consequence that an error of law on the part of the Minister or delegate in reaching the satisfaction that operates as a preconditioned power to grant and cancel visas under the Act does not result in every case in the decision being invalid. I accept that s474(1) may be taken to provide the `contrary intention' which gives the administrative decision-maker authority to make a decision otherwise than in accordance with law referred to in Craig v South Australia (1995) 184 CLR 163 at [179]. For this reason, I take s474(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.

52. Also see to the same effect Von Doussa J at [636]-[639] and Beaumont J at [277].

53. After consideration I am satisfied that it would not be appropriate to delay the handing down of this judgment until the High Court has determined the constitutional validity of s.474. The application cannot succeed, even absent the privative clause. I note the concerns expressed by Branson J in W157/00A at [76] and [80] at the consequences of the Minister's failure to comply with his statutory obligation (in s.501G(1)(e)) to give reasons for his decision (although in this case a s.501G notice was given). It is of course true that in this instance (unlike W157/00A), the privative clause, as interpreted in NAAV, would validate the decision if jurisdictional error in the Craig sense had been established. As the law presently stands it cannot be said that the right of judicial review afforded by Australian law may have been frustrated by the Minister's failure to give reasons in quite the same way that was suggested in W157/00A. The present right of judicial review is greatly circumscribed. However, even if the challenge in the High Court to the constitutional validity of s474 were to succeed, this would not avail the Applicant. In the absence of reasons, given the nature and form of the memorandum and in light of the material before the Minister, it could not be said that the Minister failed to take into account a relevant consideration.

54. For the sake of completeness I note that it was not suggested by the Applicant that s.501G(1)(e) is an inviolable limitation (in the sense considered in NAAV) on the power of the Minister as a decision maker. Nor was it claimed that there was any denial of procedural fairness.

55. In these circumstances and given that there is nothing otherwise to suggest that the decision of the Tribunal involved a lack of bona fides, that it did not relate to the subject matter of the legislation or that it was not reasonably capable of reference to the power given to the decision-maker (the so-called Hickman conditions which the majority adopted in NAAV in the construction of s.474 by reference to the decision of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) or that there is a contravention of any inviolable limitation or structural element in the operation of the Migration Act, it follows that the Applicant's claim for relief pursuant to s39B of the Judiciary Act must be dismissed.

56. I therefore dismiss the application and order that the Applicant pay the Respondent's costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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