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MIGRATION - Cancellation of visa under s.501 of the Migration Act 1958 (Cth) - Ministerial decision record not reasons for decision - whether failure to provide reasons constitutes breach of natural justice - jurisdictional error - whether best interest of children include interests of unborn child - Wednesbury unreasonableness.

Griffiths v Minister for Immigration [2003] FMCA 249 (20 June 2003)

Griffiths v Minister for Immigration [2003] FMCA 249 (20 June 2003) Last Updated: 1 July 2003 FEDERAL MAGISTRATES COURT OF AUSTRALIA GRIFFITHS v MINISTER FOR IMMIGRATION [2003] FMCA 249 MIGRATION - Cancellation of visa under s.501 of the Migration Act 1958 (Cth) - Ministerial decision record not reasons for decision - whether failure to provide reasons constitutes breach of natural justice - jurisdictional error - whether best interest of children include interests of unborn child - Wednesbury unreasonableness. Migration Act 1958 (Cth), ss.474, 475A (Part 8A), 499, 500(1)(b), 501(1), 501(2), 501(2)(a), 501(2)(b), 501(3), 501(3)(d), 501(6)(a), 501(7), 501(7)(c), 501A, 501G(4), 501G(e) Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) HCA 6 (12 February 2003) Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Plaintiff S157/2000 v Commonwealth of Australia (2003) 195 ALR 24 NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 Craig v South Australia (1995) 184 CLR 163 MIMIA v Gunner (1998) 84 FCR 400 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Minister for Immigration and Multicultural Affairs v W157/00A (2002) FCAFC 281 (4 September 2002) Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 W352 v Minister for Immigration and Multicultural Affairs (2002) FCA 398 (5 April 2002) Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 959 Minister for Immigration and Multicultural and Indigenous Affairs v Ozmanian (1996) 71 FCR 1 Le v Minister for Immigration and Multicultural and Indigenous Affairs (1999) FCA 1704 Bridges v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 1647 Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1 KB 223 Singh v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 105 FCR 453 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 361 (22 November 2002) Mohamed v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 4 (22 January 2002) Nguyen v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 1285 (13 September 2000) Ly v Minister for Immigration and Multicultural and Indigenous Affairs (2000) AATA 339 (28 April 2000) Truong ex parte - re Ruddock Minister for Immigration and Multicultural and Indigenous Affairs N14/2001 (22 March 2001) Diep v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 1130 (13 August 2001) Dranichnikov v Minister for Immigration & Multicultural Affairs; re Minister for Immigration & Multicultural Affairs (2003) HCA 26 (8 May 2003) Applicant: ELTON MICHAEL DAVID GRIFFITHS Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS File No: MZ1034 of 2002 Delivered on: 20 June 2003 Delivered at: Melbourne Hearing date: 21 November 2002 Date of Submission: 6 March 2003 Judgment of: McInnis FM REPRESENTATION Counsel for the Applicant: Mr T V Hurley Solicitors for the Applicant: Armstrong Ross Counsel for the Respondent: Mr W Mosley Solicitors for the Respondent: Australian Government Solicitor ORDERS (1) The decision of the respondent dated 26 August 2002 is quashed. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE MZ1034 of 2002 ELTON MICHAEL DAVID GRIFFITHS Applicant And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent REASONS FOR JUDGMENT (as corrected) 1. Elton Michael David Griffiths (the applicant) is a citizen of New Zealand having been born in that country on 1 January 1974. He is therefore currently 29 years of age and had entered Australia on 18 December 1982 (aged 8 years). At the time he entered Australia he was the holder of a special category (temporary) (class TY) (sub-class 444) (special category) visa. 2. The Minister has cancelled the applicant's visa pursuant to s.501(2) of the Migration Act 1958 (Cth) ("the Act") on 26 August 2002 ("the decision"). Section 501(2) provides the Minister may cancel a visa or grant it to a person if the Minister reasonably suspects that the person does not pass the character test (s.501(2)(a)) and the person does not satisfy the Minister that he or she in fact passes the character test (s.501(2)(b)). 3. Section 501(6)(a) provides that a person does not pass the character test if he or she has a substantial criminal record within the meaning of s.501(7). Pursuant to s.501(7)(c) a person is deemed to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more. 4. There is no dispute in the present case that the applicant has an extensive criminal history since arriving in Australia. Most of the offences relate to theft, burglary and related charges. The more significant terms of imprisonment include a sentence of one year and six months with a non-parole period of 12 months imposed by the Magistrates Court of Victoria at Dandenong on 9 January 2001. An appeal from that decision on 15 February 2001 to the County Court of Victoria at Melbourne resulted in that Court affirming the sentence. 5. On 6 March 1997 the applicant was sentenced to a term of 46 months imprisonment. On appeal to the County Court the sentence was varied and the applicant sentenced to a term of imprisonment of 30 months with a minimum of 18 months. Prior to that, on 30 January 1995 in the Magistrates Court of Victoria at Melbourne the applicant had been sentenced to a term of imprisonment of 24 months. That sentence had been suspended for 24 months on the basis that the applicant had been ordered to abstain from alcohol and drugs of addiction and to attend Pleasant View Centre and obey all lawful directions of the officer in charge at Drugs Services Victoria. 6. Following his most recent appearance in Court on 9 January 2001 the applicant served a period of imprisonment and was released on parole from the Fulham Correctional Centre on 18 December 2001. He completed his parole on 17 June 2002. 7. Having regard to the fact that the applicant had been sentenced to a term of imprisonment of 12 months or more it is argued that the respondent is able to form a view that there is a reasonable suspicion that the applicant does not pass the character test provided in the legislation. 8. It can be seen that one of the perhaps more unfortunate aspects of the current application is that the applicant had previously been sentenced to a term of imprisonment in 1997 when the Magistrates Court of Victoria at Broadmeadows sentenced him to 46 months imprisonment, later the subject of an appeal, and varied by reducing the sentence to 30 months with a minimum of 18 months and on that occasion the Minister did not exercise a discretion to cancel the applicant's visa. Hence one aspect of the application which appeared to be of concern, though not necessarily of relevance, was the apparent lack of awareness on the part of the applicant that in the event that he were to be imprisoned again after the 1997 conviction it may lead to cancellation of his visa. Perhaps understandably, having not had his visa cancelled upon the first substantive conviction, he was not necessarily to be taken to know that a second conviction would result in the current cancellation of the visa. 9. The initial application in this matter was filed in the Federal Court of Australia on 16 September 2002. The application was then transferred by order of that Court on 3 October 2002 to the Federal Magistrates Court where the matter was heard on 21 November 2002. On that occasion the applicant had sought to rely upon an amended application which had been filed on 1 November 2002 and then by leave granted on 21 November 2002 he was permitted to rely upon a second amended application. That second amended application then became the subject of oral submissions and further written submissions filed and served by leave of the Court on behalf of the respondent on 2 December 2002. The respondent by facsimile dated 6 March 2003 further referred the Court to a decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) HCA 6 (12 February 2003) (Lam) which of course was delivered after the initial hearing of the present application and in which it is said the High Court commented in dicta on the relevance of legitimate expectation which had been enunciated in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (Teoh). 10. At the hearing of this application it was conceded by counsel for the applicant that the decision of the respondent is one which could be regarded as a privative clause within the meaning of s.474 of the Act. It was asserted that the decision had been one where the Court should be satisfied was not decided in good faith and/or was infected by jurisdictional error. It may well be that the argument in relation to jurisdictional error has gained some strength since the High Court's decision in Plaintiff S157/2000 v Commonwealth of Australia (2003) 195 ALR 24 ("S157"). 11. Apart from the complexities of decisions interpreting privative clauses and decisions which deal with the specific provision, namely s.501 of the Act, it should also be noted that the applicant's circumstances have changed since the record of interview between the respondent's officer on 20 June 2002 to the extent that at that time the applicant's de facto was expecting a child of the relationship. That was the case at the time of the hearing although by now it is understood that the applicant's child would have been born. There is no doubt that one of the more compelling factors which was raised in the present application was the desirability of the applicant remaining in Australia with his current partner and child. 12. It is useful to set out the procedure leading up to the decision as it provides some insight into the material available to the respondent at the time the decision was made on 26 August 2002. The decision is set out in what might be described as a `pro forma' document entitled, Minister's Decision on Cancellation under s.501(2) where a number of paragraphs said to be non-applicable are deleted on the form, leaving in the present case, the following:- "I have considered all relevant matters including (1) an assessment of the Character Test as defined by s.501(6) of the Migration Act 1958, (2) my Direction under s.499 of that Act and M. Griffiths' comments, and have decided that: I reasonably suspect that Mr Griffiths does not pass the Character Test and Mr Griffiths 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." 13. The "relevant matters" the Minister had before him included a number of documents which had been annexed to a document entitled, Consideration of Liability for Cancellation of a Special Category Visa under s.501(2) of the Act. That document referred to as Ministerial Decision Record (the decision record) sets out the personal details of the applicant and a consideration of those issues under the relevant sections to which I have referred relating to the applicant's criminal history. In addition, the documents set out the details obtained during the interview with the Departmental officer on 20 June 2002. It is noted under the heading "Prior Considerations" the author of the report to the Minister states that, "The principal offences, which bring Mr Griffiths within the definition of substantial criminal record, are not listed as being very serious. However, two of Mr Griffiths' prior offences have involved unlawful assault and assault with intent to rob." 14. Reference is then made to the Minister's Direction issued under s.499 of the Act to guide delegates and the AAT in the exercise of the discretion under s.501 of the Act. Although the Minister is not bound by his own Direction he is open to be guided by the factors set out in that Direction. 15. The author of the decision record considered by the Minister notes that - "Paragraph 2.6 of the Direction states that it is the government's view that crimes involving violence are considered by the government to be very serious." 16. After reciting the background to the convictions to which I have already referred, the author then recites those factors put forward by Mr Griffiths by way of "mitigation" at his interview. 17. It is noted in the decision record that reference is made to the drug history of the applicant, as follows:- "Mr Griffiths submitted that his criminal activity is solely attributable to a drug addiction, which he has acquired since his arrival in Australia. Mr Griffiths entered Australia with his family at the age of eight. He submitted that he did not encounter any settlement problems in Australia." 18. In the summary, reference is made to Mr Griffiths commencing to use cannabis at the age of 12 or 13. In dealing with the circumstances of the offences reference is also made to Mr Griffiths stating that he "(h)ad not made any threats of violence or carried a weapon whilst committing an offence." 19. The full record of interview of the applicant was provided by way of annexure. 20. It is noteworthy that in the advice to the Minister under the heading "Likelihood that the conduct may be repeated" the Minister is advised that:- "...in assessing Mr Griffiths risk of recidivism it is open for you to take the following issues into account: whether the person has previously been warned about the risk of cancellation and deportation and has since offended." 21. No warning had been given to Mr Griffiths prior to the decision to cancel his visa. 22. Reference was made in the decision record to the applicant successfully completing the relapse prevention programme and drug treatment course with all urine samples provided by him shown to be negative. Significantly, reference was made to the fact that whilst on bail in August 2000 the applicant claimed that "his life commenced to change". He refers to the relationship with his current partner and her pregnancy. The then impending birth of the child was claimed to be another factor for the applicant not having relapsed into drug abuse. It should be noted that the applicant's mother and father continue to reside in Australia and at interview the applicant advised that his father was suffering from motor neurone disease diagnosed in November 2001 and that the applicant had acted as a caregiver from time to time in order to relieve his mother of that task. 23. It is further noteworthy that in the decision record the officer states the following:- "It is possible that receiving notification of his liability to visa cancellation has had an effect on Mr Griffiths' resolve not to re-offend. He has never previously been warned and so he is now aware of the repercussions of his criminal conduct, namely the possibility of separation from his family. At interview Mr Griffiths displayed a change in his outlook in seeking a family lifestyle with his de facto spouse, free of drug abuse and crime. Mr Griffiths has strong support from his de facto spouse and his family who have provided accommodation and support all of which could be additional factors in preventing further offences." 24. Significantly in the present case, under the heading "The Best Interests of the Children" the following appears in the report:- "51. Mr Griffiths does not have any children therefore this section does not apply. His de facto spouse is expecting the couple's first child in December 2002. This issue is referred to `Other Consideration'." 25. In dealing with the issue of degree of hardship reference is made to the difficulty the applicant has found in finding employment, particularly having regard to his criminal history. It is noted that the applicant's entire family resides in Australia apart from one aunt who is the only relative still residing in New Zealand. It is said that the applicant could not rely upon that aunt for assistance and accommodation if he were to return to New Zealand. Again it is noted that the applicant had lived in Australia since 1982 and resided here from the age of eight for the past 20 years. He completed his primary and secondary education in Australia. His family and his de facto spouse are all resident in Australia. 26. The report to the Minister refers to the fact that the applicant's de facto spouse is expecting their first child and notes the following:- "71. Ms Rogers is expecting the couple's first child in December 2002. Mr Griffiths indicated that she would join him in New Zealand if he is removed from Australia. He submitted that if his visa is not cancelled and he is allowed to remain in Australia he will be able to provide his child with a better economic future than he would otherwise be able to provide in New Zealand. 72. Ms Rogers indicated that she would follow her spouse to New Zealand if his special category visa were cancelled. She stated that she was concerned at the level of hardship that they may experience in New Zealand. Ms Rogers stated that upon arrival in New Zealand they would not have accommodation and Mr Griffiths would be unemployed. Ms Rogers expressed concern for her own health as her pregnancy progresses and stated that unless she could receive assistance from the Department of Social Security in New Zealand she may not be able to pay for medical and hospital treatment when her baby is born." 27. When the decision was made it was conveyed to the applicant by letter dated 4 September 2002. It is appropriate to set out the following relevant parts of that correspondence:- "You were interviewed on 20 June 2002 and your comments at interview were carefully considered and taken into account. The Minister for Immigration and Multicultural and Indigenous Affairs has on 26 August 2002, after exercising his discretion, decided to cancel your visa pursuant to s.501(2) of the Act. The particular ground under which you do not pass the Character Test is sub-s.501(6)(a) of the Act. ... I enclose with this notice; * A copy of the decision record that sets out the reasons for the decision (other than non-disclosure of information); ... It is important for you to note that as a result of your removal you will be permanently excluded by Australian law from returning to Australia." 28. In brief summary therefore, the matter which clearly gives rise to some degree of concern is that the present application is one where an applicant has resided for almost 20 years in Australia having arrived here at the age of eight, with all, bar one member of his family, resident in Australia. He formed a de facto relationship which has now produced an Australian baby. He has not previously been warned that his criminal convictions would or may lead to cancellation of visa, and is now required to return with his Australian wife and child to New Zealand. As a consequence of the removal from Australia he is permanently excluded by Australian law from returning to Australia. 29. Perhaps understandably, counsel for the applicant embarked upon an extremely detailed analysis of the basis upon which the decision now sought to be challenged has been made. The applicant's submissions 30. The applicant relied upon a second amended application filed 22 November 2002 together with written contentions of fact and law filed 1 November 2002 and made oral submissions. 31. Although the second amended application sets out a number of detailed grounds which included jurisdictional error and a suggestion that the decision was made in bad faith, reference was also made to the decision maker failing to accord the applicant natural justice in that it was biased and failed to follow the procedures required. 32. As an alternative, reference was made to ss.474, 475A and Part 8A of the Migration Act as being unconstitutional. In the light of the Full Court of the Federal Court's decision in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 (NAAV) and the High Court decision in S157 to which I have referred, it is clear that the argument concerning whether the privative clause is unconstitutional is now resolved and that argument cannot be advanced. 33. It is appropriate to set out the substantive claim made in this application. Based upon what counsel described as the main thrust of the submission, namely that there is a decision of the Minister to make the decision himself and deny the applicant the right of pursuing a further application to the Administrative Appeals Tribunal (the AAT) in circumstances where no reason for the decision has been given by the Minister. This it is said, is sufficient to constitute jurisdictional error. (See Craig v South Australia (1995) 184 CLR 163 (Craig).) 34. It was further submitted that a failure to advert anywhere as to why the Minister decided to make the decision himself rather than refer it to a delegate itself may attract a constitutional writ. It was noted that if the decision had been made by a delegate then pursuant to s.500(1)(b) the applicant could pursue rights of review in the AAT. 35. It is useful to set out the grounds actively pursued by the applicant in this matter as set out in the second amended application as follows:- "4A. The Applicant claims an order in the nature of prohibition to prohibit the Respondent and his servants and agents from acting on the decision, and further an order in the nature of Certiorari to quash the decision, on the grounds that the decision was not made in good faith in the sense that the decision did not constitute a genuine attempt to undertake the task required by s.501(2) of the Migration Act meriting personal criticism because: (a) the Respondent made the decision by reference only to those parts of the statutory scheme which would deny to the Applicant the benefit of merits review available were the decision to be made by a delegate rather than the Respondent personally; (b) the Respondent made the decision without considering whether he, personally should make it or the reasons or circumstances why he, rather than a delegate was to make it; (c) the Respondent made the decision to cancel the visa of the Applicant, rather than to give him a warning, so as to prevent criticism in the AAT of the failure of the Respondent to warn the Applicant that his visa could be cancelled in response to convictions in the Melbourne Magistrates Court on 30 January 1995 and at Broadmeadows Court on 6 March 1997 which would have warranted consideration of cancellation of his visa. 4. The Applicant claims an order in the nature of prohibition to prohibit the Respondent and his servants and agents from acting on the decision, and further an order in the nature of Certiorari to quash the decision on the ground that the Respondent did not have jurisdiction to make the decision because it involved jurisdictional errors being either errors of law or other errors such that the decision of the Respondent was not reasonably capable of reference to the power given to the Respondent by s.501(2) of the Migration Act being; (a) the Respondent failed to take into account a relevant matter in exercising the power being the circumstance that by exercising the power himself personally he denied to the Applicant the opportunity of merits review by the Administrative Appeals Tribunal; (b) alternatively, the Respondent erred by concluding that he was authorised to make a decision personally under s.501(2) of the Migration Act in the absence of any circumstance involving the "national interest" which would move the Respondent to either make a decision under s.501(3) or set aside a decision by the AAT in favour of the Applicant under s.501A of the Migration Act; (c) the Respondent abused the power to him by s.501(2) of the Migration Act by failing to consider cancelling the visa of the Applicant at the first available opportunity and following his conviction in 1995; alternatively the Respondent failed to take into account a relevant matter being his failure to warn the Applicant in 1995 that any further criminal conduct would lead to consideration being given to cancellation of his visa; (d) the decision was so unreasonable that no reasonable person could have made it because the Respondent acknowledged that by making the decision he is requiring an Australian citizen who was pregnant with the Applicant's child to leave Australia to give birth to the child; (e) the decision constituted an unreasonable exercise of the power or an abuse of the power given by s.501(2) of the Migration Act because the Respondent exercised personally a power which could have been exercised by a delegate in respect of a criminal history which consisted entirely of summary convictions; (f) the Respondent failed to accept that the child of the Applicant en ventre sa mere of an Australian citizen and to be born within five months of the making of the decision was "a child" for the purposes of considering the "best interest of the children" for the purposes of the making of the decision." 36. It is clear from a recital of the paragraphs set out in the second amended application that there is some degree of overlap between paragraphs 4 and 4A. It should be noted that the whole of paragraph 4A and sub-paragraph (f) of paragraph 4 are the latest amendments. 37. The applicant had submitted that the denial of a merits review and a decision instead by the Minister is a significant factor in the present application. It was submitted that the material placed before the Minister did not include reference to the consequences to the applicant if the Minister made the decision personally. It was submitted that the consequence of the Minister making the decision personally was relevant and should have been brought to the Minister's attention. It was submitted the Minister should have been advised in the decision record that if he chose to make the decision himself then the rights of the applicant would be restricted to an appeal to the Federal Court or Federal Magistrates Court. If on the other hand a delegate had cancelled the visa then the applicant would have the opportunity for a merits review before the AAT. The failure of this matter to be brought to the attention of the Minister meant that he could not take it into account and therefore had failed to take a relevant matter into account (see Craig). The decision record provided to the Minister is no more than a report and does not set out reasons for the Minister's decision. It simply provides the Minister with a submission as to matters he may wish to take into account. 38. It is not disputed in the applicant's submission that the Minister had the power to make the relevant decision. The issue raised was why the Minister exercised the power himself and further why he came to the decision or conclusion that he did. No reasons were given for either of those matters. 39. It is noted that in the options given to the Minister to which reference has been made and where the Minister decided to cancel the visa, other options include a finding that the applicant does not pass the character test and for the Minister to then proceed not to exercise a discretion to cancel the visa. A further option is provided where the Minister may be satisfied that the applicant did not pass the character test but decides not to exercise his discretion to cancel the visa, but instead gives the applicant a warning that a fresh assessment will be made with a view to considering cancelling his visa if he is convicted of further offences. No reasons have been given as to why those other options were deleted. It is common ground that no warning had previously been given to the applicant. 40. It should be noted that reference was made to the decisions of MIMIA v Gunner (1998) 84 FCR 400 (Gunner) approved by the High Court in MIMIA v Jia Legeng (2001) 205 CLR 507 (Jia). Those cases in combination establish, according to the submission of the applicant, that the Minister may decide in the national interest whether a visa should be cancelled and a non citizen denied merits review. The authorities, however, it was submitted do not entitle a Minister to make a decision by default. The authorities further do not establish that Parliament intended the power given by s.501 to be exercised by the Minister in a "surreptitious manner and without knowledge of Parliament." Alternatively it was submitted that if the provision does authorise the respondent to deny the applicant a merits review it is a circumstance which should have been brought to the attention of the respondent before the decision was made. 41. The timing of the decision was referred to in the present application as being relevant. It was submitted that the material presented to the Minister did not explain why he had not acted earlier as he could have in the circumstances and why no warning had been given to the applicant that he could be removed from Australia. There was no material placed before the Minister which gave any reason why it was not appropriate for the applicant to be warned following his third Court appearance. It was submitted that the Minister therefore either failed to take into account a relevant consideration by allowing the applicant's convictions to mount without warning and then cancelling his visa without access to Merits Review in all the circumstances (particularly his drug addiction) was an abuse of power or unreasonable. 42. In considering the issue of the abuse of power reliance was placed upon the `Wednesbury' principles and it was submitted that the exercise of power in the present case was unreasonable. 43. It was submitted that the unreasonableness of the decision is found in the facts and circumstances to which reference has already been made, namely that there is now an Australian child with an applicant who has been resident in Australia since the age of eight years. The applicant although having an unfortunate history has Australian connections and there are many reasons, it was submitted, why there might be a different conclusion, but simply no explanation given or anything presented to the Minister as to why the other options including a warning were not taken. 44. During the course of submissions counsel for the applicant referred the Court to the Full Court of the Federal Court decision W157/00A. In that case the Full Court had to consider a document of a similar kind to a document described in the present application as a ministerial decision record. It is of interest that in that case the Court had to deal with the grounds of an application which included the ground that the respondent did not give consideration to the interests or entitlement of the children of the applicant to have support for and contact with their father and generally failed to address the issue as to what was in the best interests of the applicant's children. In that case the holder of a visa had arrived in Australia in 1994, the wife, two sons and a female cousin of his wife, who ordinarily resided with the visa holder and his family. In 1995 the visa holder was charged with five counts of sexual penetration and he was convicted after a trial on 4 November 1997 and sentenced to two year's imprisonment on each charge. He then faced a deportation order upon conclusion of his period of imprisonment prior to consideration being given to the issue of parole and that issue was then deferred. An application was made to the AAT to review the Minister's decision to order deportation. On 5 November 1998 the Tribunal set the deportation order aside and found little or no risk of the respondent re-offending and that having regard to the interests of the respondent's children there was a clear balance in favour of a decision not to deport the applicant. The applicant was released on parole on 23 November 1998. 45. However, on 17 November 1998 the Minister had given notice under s.501 of the Act of an intention to cancel the visa on character grounds. On 3 July 2000 the Minister determined that the visa should be cancelled. In that case reference was made to a document of a similar kind to the present case, namely a "decision record." The Full Court of the Federal Court analysed that document and noted that various options were given to the Minister in reaching a decision. The primary Judge in the application had concluded that s.501G(4) of the Act was not intended to constrict or remove rights of judicial review provided under the Act or at law and placed reliance upon the decision of the High Court in Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 per Gaudron J. The issues document was concluded by the primary Judge not to constitute written notice required by s.501G(1)(e) and noted it did not disclose reasons relied upon by the Minister for the decision to cancel the visa. The primary Judge noted that if the issues document was taken to set out reasons of a Minister it did not explain how the Minister found that the important matter of the best interests of the respondent's children and their interests as Australian citizens were outweighed by other considerations. The decision of the primary Judge was to set aside the Minister's decision and return it to the Minister for determination according to law. 46. The Full Court then considered the requirement to set out reasons and analysed whether the issues document could be said to actually set out the Minister's reasons. Counsel for the applicant referred the Court to the following paragraphs in the judgment of Branson J with whom Goldberg and Allsop JJ agreed: "48. In respect of a document which adopted the same form as the issues document (but, of course, which had a different content) Hayne J in Truong's case said: `In my opinion, it is not arguable that this document alone or this document in conjunction with the notice insufficiently complied with the obligation imposed by section 501G(1)(e). Read as a whole, the document reveals the matters that were before the Minister, assigned to various of them particular weight, and it was on the basis of that information - and I interpolate - only that information, that the Minister then reached the decision which he did. In any event, as I have said, the matter is put beyond doubt by the terms of the notice that were given to Mr Truong that the decision record sets out the reasons for the decision that was reached.' 49. In my view, the primary judge rightly proceeded on the basis that the question of whether the Minister had provided to the respondent a written notice that set out the reasons for the Minister's decision is a question of fact. That question of fact is to be answered primarily by reference to the document which purports to be that written notice. Nonetheless, as Hayne J indicated in Truong's case, the circumstances surrounding the provision of the written notice, which circumstances may include the provision of one or more additional documents, may throw light on the question to be answered. At the end of the day, however, a finding of fact made in another case taken with respect to a different document provided to an individual in different circumstances will provide only limited guidance in a subsequent case. 50. It may, in my view, be seriously doubted that Hayne J intended in his ex tempore judgment to provide considered guidance on the proper interpretation of s.501G(1)(e). In particular, I doubt that his Honour intended to suggest that the terms of one document could give another document the character of a notice that sets out the reasons for the Minister's decision when that other document plainly does not set out the Minister's reasons. In any event, in this case the issues document has not been explicitly identified as a document which sets out the reasons for the Minister's decision; it has been identified as the `decision record' (see [7] and [9] above). 51. ... 52. ... 53. ... 54. In my view, the most significant indicator that the issues document does not set out the reasons for the Minister's decision to cancel the respondent's visa is the fact that it was plainly drawn so as to recognise that the Minister, assuming that he concluded that he had power to cancel the visa, had a discretion to cancel the visa or alternatively not to cancel the visa. As is mentioned above, the content of the document is not such as to suggest that only one of the available options was realistically available to the Minister. In the circumstances, the submission of the Minister that the issues document does set out the reasons for the Minister's decision, as it seems to me, is to be understood as a submission that the issues document would equally have set out the Minister's reasons for decision had the Minister decided not to cancel the respondent's visa. For the purpose of testing the Minister's submission it is immaterial that there is no statutory obligation on the Minister to give a notice which sets out the reasons for a decision not to cancel a visa. In my view, the idea that the one document can be characterised as a notice that sets out the reasons for diametrically opposed decisions depending on whether the expression "agreed" or "not agreed" at the conclusion of the document is crossed out runs contrary to logic. In truth, as in the Canadian case of Suresh, the document here sought to be characterised as a notice which sets out the Minister's reasons for decision is a document provided to the Minister to assist him in reaching his decision. It does not tell the respondent why his visa was cancelled; at best it sets out facts and other material relevant to the exercise of the Minister's discretion to cancel or not to cancel the respondent's visa. To utilise the logical distinction referred to in [37] above, it may set out the findings of fact which gave rise to the decision but it does not set out the reasons for the decision." 47. The Full Court in that case concluded that the Minister had not given the respondent a written notice setting out the reasons for a decision to cancel the visa as required by the Act. 48. After relying on the reference from the Full Court's decision in W157/00A, counsel for the applicant submitted that in the present case likewise there is no basis for the decision but rather a document that sets a range of options for matters to consider. It was submitted that the decision in the present case has therefore been made with an absence of reasons which would lead to a conclusion that the decision was not a genuine attempt to exercise discretion or undertake the task by looking at the whole statutory scheme including that aspect of the scheme to provide for a decision to be made by a delegate with the right of appeal to the AAT. 49. It was submitted by the applicant that the decision should be quashed. Respondent's submissions 50. The respondent relied upon written contentions of fact and law filed 18 November 2002 and further contentions filed 2 December 2002. As indicated earlier the respondent also brought to the Court's attention by facsimile dated 6 March 2003 the judgment of the High Court in the Lam case delivered 12 February 2003. 51. It was submitted by the respondent that there was no jurisdictional error, that the decision in any event is governed by the principles in relation to privative clauses and that s.474 of the Act is constitutional and covers this decision. Further it was submitted that the conditions which are referred to as the "Hickman provisos" namely that the decision was reached in a bona fides attempt to exercise the power in question, it relates to the subject matter of the relevant legislation and it is reasonably capable of reference to the power under which the decision-maker has acted has not been in any way breached. 52. Specifically it was submitted that there has been no lack of good faith in the present decision. 53. In the light of the High Court decision in S157 it is not necessary to otherwise consider the detailed submissions made by the respondent arising out of the decision of the Full Court of the Federal Court in NAAV. 54. It was submitted that any lack of reference in the decision to the consequences to the applicant of the respondent proceeding under s.501(2) does not amount to improper exercise of power but at best should be regarded as a failure to take into account a relevant consideration. That is not a matter which would justify review according to the respondent's submissions. Even if it were a factor which potentially may be regarded as jurisdictional error, then it was submitted the respondent in any event was not bound to take it into account. Reference was made to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 73 and 74 (Yusuf) per McHugh, Gummow and Hayne JJ as follows:- "The considerations that are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example the particular statute makes the matters which are advanced in the course of a process of decision-making, relevant considerations for the decision-maker. What is important, however, is that the ground for judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are essentially concerned with the process of making particular findings of fact upon which the decision-maker acts." 55. The respondent also referred the Court to the decision of French J in W352 v Minister for Immigration and Multicultural Affairs (2002) FCA 398 (5 April 2002) 32 (W352) as follows:- "32. In considering whether there has been a judicially reviewable failure by an administrative decision-maker to take into account relevant considerations it is necessary to bear in mind the requirement that the relevant consideration be one which the decision-maker is bound to take into account. It is useful to restate the criteria enunciated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39: (a) the ground of failure to take into account a relevant consideration 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; (b) what factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion; (c) not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision; (d) the limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision or that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned. It has also been said that "Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction ... they do not ... encompass a failure expressly to mention or grapple with part of the competing body of evidence before the tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed." - Paul v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 289 at 312 (Allsop J, Heerey J agreeing)." 56. The fact that the consequence of the respondent proceeding under s.501(2) denied the applicant the opportunity of a review before the AAT was not a relevant consideration that the respondent was bound to take into account under the Act. It was submitted in any event that it cannot be concluded from a lack of a reference in the decision record of the respondent in making his decision did not take account of the fact that a decision under s.501(2) was not reviewable by the AAT. It was submitted the Act provides the respondent may make a decision under s.501(2). There is nothing in the Act which would suggest that the respondent cannot act in the manner prescribed. 57. Reliance was placed upon the decision of Tamberlin J in Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 959 (Wong) where it was submitted the Court rejected a similar submission that the use of specific power given to the respondent under the Act should be constrained. Reference was made to paragraphs 18 and 19 of the judgment of Tamberlin as follows: "18 Before the learned primary Judge, and again before us, it was submitted on behalf of Mr Wong that: (i) the power to refuse the visa application was exercised for an ulterior purpose. It was said that the extrinsic materials pertaining to the enactment of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth), (the amending Act which introduced the relevant provisions here under consideration) led to the conclusion that the power to refuse a visa under s.501(3) could only be exercised in an emergency situation or where there were exceptional circumstances and that as the present case could not be so characterised, it was said that the power must have been used for an ulterior purpose. (ii) there was no evidence upon which the Minister could find that Mr Wong was not of good character. (iii) the Minister had failed to take into account a relevant matter, that being Mr Wong's good conduct since entering Australia. (iv) that the Minister erred in making the findings he made concerning the national interest. (v) The exercise of the Minister's residual discretion had miscarried because it assumed an ability on Mr Wong's part to make representations, yet by virtue of his not being apprised of the "protected information" he was unable to do so. 19 The learned primary Judge rejected these submissions. He found that there was no evidence of any ulterior purpose and that in any event the legislation had to be construed in accordance with its terms, not the extrinsic material. His Honour also found that no error had been shown in relation to the Minister's consideration of character. His Honour pointed out that it did not follow from the material before the Court that the Minister could not properly have formed the view that Mr Wong was not of good character by reason of general conduct. The Minister had access to the protected information and it was apparent that reliance had been placed on the protected information. His Honour said also that while it was true that there had been no determination that Mr Wong had been convicted of any criminal offence this was not a pre-requisite to the finding which the Minister was required to make." 58. It was submitted on behalf of the respondent that where the statutory language is unmistakable and unambiguous the Court (subject to any constitutional issues) must give effect to the language even if the consequence is that the legislation detracts from basic rights and immunities (see Minister for Immigration and Multicultural and Indigenous Affairs v Ozmanian (1996) 71 FCR 1). 59. It was submitted that it was not correct that as contended by the applicant that the scheme of the legislation required merits review be available except where the Minister decides the national interest requires otherwise. The Minister has the right to make the decision under s.501 or the decision under the legislation may be made by a delegate. It was submitted there was no mention in the section of the "national interest" scheme. It was submitted that the legislation did not require the merits review by the AAT be available except where the Minister decides the national interest requires otherwise. The scheme, it was submitted, in fact permits merit review only where a decision is made by a delegate of the Minister under s.501(1) or s.501(2). It is expressly not available when the Minister personally makes a decision pursuant to s.501(1), (2) or (3). 60. The respondent relied upon the High Court decision of Jia where the Court approved the decision in the Full Court of the Federal Court in Gunner. 61. It was submitted that there is no requirement in the Act that the applicant be warned before any action is taken by the respondent under s.501 and therefore no restriction on when the respondent may act if the character test is not met. Reference was made to the decision of Hill J with whom Mathews and Gyles JJ agreed in the matter of Le v Minister for Immigration and Multicultural and Indigenous Affairs (1999) FCA 1704 where at paragraphs 5 and 6 the Court stated the following:- "5. In oral submissions, Mr Le submitted that the decision of the Tribunal was wrong because he had never received a warning about deportation. By that I assume he meant that after various other offences he had committed, he had not been told that he could be liable for deportation. Section 200 of the Act does not make a warning of deportation in any event a necessary pre-condition to the making of an order. The relevant pre-condition in Mr Le's case is that he be convicted of an offence for which a minimum sentence of 12 months is imposed. There is no substance in this ground. 6. The second matter raised by Mr Le in oral submissions is that his previous convictions, among which I would understand he included the offence of stalking, were not for offences so serious as to justify an order of deportation. The seriousness with which an offence is viewed is a matter for the Tribunal, it is not a matter for this Court. I am unable to see any error in the Tribunal's reasons so far as it dealt with the offence for which deportation was ordered, nor do I see any error in the way in which the Tribunal dealt with the other offences." 62. It was submitted that in any event the respondent took into account the fact that the applicant had not been previously warned. It was submitted that "... the decision record expressly so states." 63. In relation to the issue of the alleged abuse of power it was submitted that in the present case the respondent was entitled to take into account the seriousness of the offences committed by the applicant and his prior criminal history. 64. Reliance was placed upon the Full Court of the Federal Court decision in the matter of Bridges v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 1647 where it was submitted that although considering ss.200 and 201 of the Act the same considerations apply to the discretion under s.501. Reference was made to paragraphs 28 and 30 of the Full Court decision as follows:- "28. The language and structure of ss.200 and 201 of the Migration Act support the Minister's submissions. The Minister has power under s.200 to `order the deportation of a non-citizen to whom this Division [Part 2, Div 9] applies'. Section 200 clearly contemplates that other provisions in Div 9 will determine whether a particular non-citizen is liable to deportation pursuant to the power granted by s.200 itself. Once the Division applies to a non-citizen, s.200 confers a discretion on the Minister to deport the person which, in terms, is unconfined. The general principle is that stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 40: `where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard' 29. Section 201is one of three sections in Div 9 which specifies circumstances in which s.200 applies to a person. (The others are ss.202and 203.) Section 201relevantly provides that where - * a non-citizen has been convicted in Australia of an offence; * at the time the offence was committed the non-citizen, if a permanent resident of Australia, had been permanently resident for less than ten years; and * the offence was one for which the non-citizen was sentenced to imprisonment for a period not less than a year, S.200 applies to the non-citizen. It is clear that when s.200 refers to a `non-citizen to whom this Division applies', it includes a person to whom s.200 applies by reason of s.201." 65. It was submitted there is no evidence to suggest the respondent exercised his power unreasonably. The "national interest" is a matter which the respondent is required to be satisfied about when making a decision pursuant to s.501(3) (see s.501(3)(d)). It was submitted, however, that it is not a matter which the respondent is required to be specifically satisfied about where he proceeds, as in the present case, pursuant to s.501(2). 66. In otherwise considering the reasonableness of the decision the respondent referred the Court to the decision of Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1 KB 223 at 230 as follows- "It is true to say that if a decision of a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the Courts can interfere. That, I think is quite right; but to prove a case of that kind would require something overwhelming and in this case the facts do not come anywhere near anything of that kind." 67. In considering further the Wednesbury principles the Court in the context of the Act was referred to the Federal Court decision in Singh v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 105 FCR 453 after referring to a decision of the Minister pursuant to s.200 of the Act, the Court at paragraphs 24 and 25 stated the following:- "24. However, as the primary judge pointed out, a reviewing court is not entitled to find Wednesbury unreasonableness simply because the court disagrees - even profoundly disagrees - with the weight given by the decision maker to the various factors relevant to his or her decision. There must be more than that. In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821, Lord Diplock described unreasonable decisions as those which `looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them'. Words like `absurd', `irrational' and `illogical' have often been used in this context. I venture to repeat a comment I made in Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435 at 453: `In numerous cases the comment has been made that unreasonableness, in this sense, is a difficult ground to establish. Probably the ground has its most frequent application in cases in which the challenger can demonstrate an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker's own criteria. Parramatta City Council v Pestell (1972) 128 CLR 305 and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; 65 ALR 549 constitute examples of this type of case. There may be cases - although I think that they are likely to be rare - in which all of the factors germane to a particular decision point in one direction. If such a case arose, it would seem proper to brand as unreasonable a decision to the contrary effect. But ordinarily there will be factors pointing in each direction. Where that is the situation, the weight of those factors is a matter for evaluation by the decision-maker. In such a case, even though a particular judge might feel that the preferable decision would have been otherwise, that feeling would not be sufficient to justify the condemnation of the decision as unreasonable, in the relevant sense. As Menzies J said in Pestell (at 323): `There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible - it is right. The validity of a local rule does not depend upon the soundness of a council's opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court'. 25. The matters I have mentioned go only to the soundness of the deportation decision. That is not a matter for the Court. I reject the submission that the Minister's deportation decision should be held to be invalid on the ground of Wednesbury unreasonableness." 68. In any event, it was argued that in the present case the decision could not be regarded as unreasonable in a Wednesbury sense and even if so regarded it would not be a basis upon which the Court could review the decision. 69. In the respondent's further contentions filed 2 December 2002 reference was made to the claim by the applicant that the decision was not made in good faith. It was submitted that there is no evidence in the present case to make the serious allegation of lack of bona fides in the present application. Reference was made to the decision of Wong and in particular rejection of an identical submission as referred to earlier. In particular I was referred to the passage from Tamberlin J where His Honour states that in order to establish an ulterior or non-bona fide purpose - "the evidence needs to be substantial and there is no such evidence in the present case." 70. Reference was also made to the Full Court decision of the Federal Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 361 (22 November 2002) where the Court sets out the relevant propositions relating to bona fides at paragraphs 43 to 48 as follows:- "43. First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial; see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590 per Heerey J at [49] and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 per Hely J at [25]. 44. The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review; SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 per Mansfied J at [35] and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. 45. Sixth, mere error or irrationality does not of itself demonstrate lack of good faith; SBAU at [29]. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism; see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] per Allsop J quoted with approval in NAAV at [107] by Black CJ. 46. Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; SBAU at [31]. 47. Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; SBAU at [32]. 48. Ninth, it is not necessary to demonstrate that the decision maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power; SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377 ("SCAZ")." 71. The respondent further relied upon the respondent's decision where it is stated - "I have considered all relevant matters" to include those matters raised in interview with the applicant relating to his de facto spouse, that she was expecting the applicant's child in December 2002 and other matters which were referred to in the decision record. The Court was referred to paragraph 76 of the Full Court decision in W157/00A where the Court states as follows: "76. It is not clear from [35]-[46] and [67] of the issues document whether the Minister took into account a `most relevant aspect of the children's position', namely their Australian citizenship (Vaitaiki per Burchett J at 614). The issues document itself, surprisingly, contains no reference to this important consideration. However, in view of the Minister's assertion in the issues document that he had considered `all relevant matters', including the respondent's comments, I have concluded, albeit with considerable unease, that it is not open to the Court to conclude positively that the Minister overlooked this issue. It is referred to in a statutory declaration made by the respondent which was an attachment to the issues document." 72. Further reference was made to paragraph 108 per Allsop J in W157/00A where the Court states: "108. The universe of material available to the appellant in the issues document and attachments (taken together) contained sufficient information as to enable the appellant to identify the best interests of the children and to take them into account. He may well have done so. The difficulty is that in the absence of reasons for the decision, and in the light of the form of the issues document, it cannot be concluded that the appellant did not take into account the best interests of the children. Nor can it be concluded that he did so. Thus, I disagree with the primary judge's conclusion that it can be concluded that the appellant failed to address the right question or dealt with the matter according to law." 73. It was submitted in the present case that not only did the respondent assert that he had considered "all relevant matters", the Ministerial record and annexures contain references to the child to be born to the applicant's de facto spouse and other matters that were relevant thereto were raised. 74. In the alternative, even if it could be concluded that the respondent overlooked that issue this would not give rise to a ground for review. A failure to accord procedural fairness relying on the authority of NAAV is not a particular basis for review of the decision. 75. The respondent referred to the issues of the child's interest and whether this constitutes a denial of procedural fairness as discussed in the matter of Mohamed v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 4 (22 January 2002) and Nguyen v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 1285 (13 September 2000). It was submitted that a denial of procedural fairness by failing to take into account the interest of the child would not be the subject of review even if it was considered that that had been a failure to accord procedural fairness. It was further submitted in any event that at the time the decision was made the unborn child was not a "child" for the purpose of the United Nations Convention on the Rights of the Child which defines child to be a "living child". 76. It was submitted that if an unborn child is not a child within the meaning of the Convention the issue of a legitimate expectation the interests of the child will be taken into account simply does not arise. The fact that a child was to be born four or five months after the decision becomes one of the many considerations which may be weighed by the respondent in making a decision. 77. By the facsimile message forwarded to the Court on 6 March 2003, reference was made to the Lam decision and in particular the Court's attention was drawn to paragraphs 81-82, 95, 98-100, 121-122, 139-141, 147 and 152. 78. In support of the submission that a child means a living child and not a child to be born at some future time, the Court was referred to Articles 1 and 3(1) of the United Nations Convention on the Rights of the Child which provide as follows: "Article 1 For the purpose of the present Convention, a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier. Article 3(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, Courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." 79. Reliance was placed upon the decision of the AAT in Ly v Minister for Immigration and Multicultural and Indigenous Affairs (2000) AATA 339 (28 April 2000) where the Tribunal concluded that an unborn child was not a child within the meaning of the Convention. 80. It was further submitted that reasons were given for the decision and reference was made to the decision of Hayne J in Truong ex parte - re Ruddock Minister for Immigration and Multicultural and Indigenous Affairs N14/2001 (22 March 2001). Reliance was also placed upon the decision of Goldberg J in Diep v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 1130 (13 August 2001) where at paragraph 16 the Court said:- "16. The fact that the reasons referred to by the Minister mainly contained in a brief oral submission to the Minister by his Department does not detract from the proposition that they constitute the reasons for his decision." 81. In the present case (as stated earlier) the letter cancelling the applicant's visa is headed: `Notice of Visa Cancellation under Subsection 501(2) of the Migration Act 1958.' Reference was made to page 2 of that letter which states that: "A copy of the decision record that sets out the reasons for the decision is enclosed." 82. Referring to the decision of Hayne J in the Truong case in respect of a same document where the Court concludes after analysing the document and its contents that: "In my opinion, it is not arguable that this document alone or this document in conjunction with the notice insufficiently comply with the obligation imposed by s.501G(1)(e). Read as a whole the document reveals the matters that were before the Minister assigned to various of them particular weight, and it was on the basis of that information - and I interpolate - only that information of the Minister then reached the decision which he did. In any event, as I have said the matter is put beyond doubt by the term of the notice that was given to Mr Truong that the decision record sets out the reasons for the decision that was reached." 83. It was contended by the respondent the decision in Truong and other authorities are to be preferred to the Full Court decision in W157/00A where a different view is taken. 84. Reference was made to paragraphs 60 to 62 of the judgment of Branson J in W157/00A as follows:- "60. It was submitted by the Minister that the differences in wording between s.501G(1)(e) and s.430(1) of the Act are not presently material. If the respective contexts in which the two provisions are found is taken into account, it seems to me that the differences may be important. Section 501(2) empowers the Minister to cancel a visa in the circumstances identified in the subsection. Section 501G(1) is plainly intended to require the Minister, after a decision to cancel a visa is made under s.501(2), to notify the person affected of a number of things including the decision and the reasons for the decision. A decision made under s.501(2) to cancel the visa is likely to come into operation, as it apparently did in this case, before the person affected is given the notice required by s.501G(1)(e). It is likely that the legislature envisaged that the s.501G(1) notice would be brought into existence after the decision to cancel the visa had come into effect. 61. By contrast, except where the Refugee Review Tribunal gives a decision orally, s.430(1) requires the Refugee Review Tribunal to prepare the written statement recording its decision before its decision is handed down. Until its decision is handed down the Tribunal is free to alter the written statement and, indeed, to change its decision. Until that time any "decision" is inchoate; it only becomes unalterable after it is handed down (as to the power of an administrative tribunal to reconsider a decision after it is published see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 180 ALR 117). At least in circumstances in which the Refugee Review Tribunal does not give its decision orally, the preparation of the written statement is, both logically and as a matter of practical reality, significantly more closely connected with the making of the relevant decision than the giving of the written notice required by s.501G(1)(e). 62. In my view, authorities concerning s.430(1) of the Act (including Xu v Minister for Immigration and Multicultural Affairs (FC) [1999] FCA 1741; 168 ALR 621 at [26]) are of assistance, but are not conclusive, on the issue of whether the giving of the written notice required by s.501G(1)(e) of the Act is a procedure required by the Act to be observed in connection with the making of the Minister's decision under s.501(2) of the Act (see s.476(1)(a)). I conclude that the context in which s.501G(1)(e) is found indicates, for the reasons discussed in [60] above, that the giving of the s.501G(1)(e) notice is not a procedure required by the Act to be observed in connection with the making of the Minister's decision. It is a procedure required by the Act to be observed in connection with the decision once made." 85. Ultimately after referring to other authorities it was submitted that in any event despite the Court's findings in W157/00A there was a failure to comply with s.501G(1)(e), the Court did not suggest that this demonstrated that the decision was not therefore reasonably capable of reference to the power given to the respondent. 86. It was submitted by the respondent that the application should be dismissed. Reasoning 87. It is important to note that this application concerns the exercise of Ministerial discretion to cancel the visa on character grounds. It is clear from the submissions to which I have referred that there is a choice provided in the legislation whereby a decision of this kind can be a decision made by the Minister or a delegate. If the delegate makes the decision then it is equally clear that rights of appeal exist for an agreed applicant to take the matter further by way of a hearing on merits before the AAT. 88. It is useful to set out the section as it appears in the Act with the appropriate subheadings as follows:- "Decision of Minister or delegate - natural justice applies 501(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes a character test. (2) The Minister may cancel the 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. Decision of Minister - natural justice does not apply (3) The Minister may: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; if (c) the Minister reasonably suspects that the person does not pass the character test; and (d) the Minister is satisfied that the refusal or cancellation is in the national interest. (4) The power under sub-s (3) may only be exercised by the Minister personally. (5) The rules of natural justice, and the code of procedure set out in subdivision A, B of Division 3 of Part 2, do not apply to a decision under sub-s (3)." 89. In the present case, it is clear from the notice forwarded to the applicant that the decision has been made under sub-s.501(2) of the Act and accordingly "natural justice applies". 90. I have considered the decision of the High Court in the Lam case. In particular I have noted the paragraphs to which the respondent has referred. In my view it is possible to conclude in the present case and I so conclude that the applicant had a legitimate expectation that as a matter of natural justice the Minister would have considered in the exercise of his power the issue of the interests of the unborn child and consequences which flow from that consideration in relation to the applicant. I accept that the concept of legitimate expectation in the present case would not apply had s.501(2) not specifically provided, at least in the subheading, that "natural justice applies". Once natural justice applies, then having regard to the statements of McHugh J in Teoh and Brennan J in Quinn cited by the High Court in Lam at paragraphs 81 and 82, I am satisfied that in the present case the power of the Minister has been created in circumstances where natural justice conditions its exercise and accordingly the applicant is entitled to the benefit of the notion of legitimate expectation and as a matter of procedural fairness is entitled to have properly considered and reasoned the issue of the interests of the unborn child. 91. I am satisfied that the Minister has power to make the decision and further satisfied that there is nothing in the legislation which requires the Minister to refer the matter to a delegate and/or to provide an application with information that suggests that he has otherwise decided not to refer the matter to a delegate. I am further satisfied that it is not necessary for the Minister to be advised in circumstances of this kind that there is an opportunity to refer the matter to a delegate. To that extent, the applicant's submissions which are critical of the failure of the officer of the Ministry to notify the Minister that he had an option to refer the matter to a delegate does not in my view, constitute a basis upon which judicial review would succeed in the present application. 92. Likewise, I am satisfied that there is no error of a kind which would attract judicial review by virtue of the failing to advise the applicant that a further option may exist, that is, a decision by a delegate subject to review by the AAT. 93. In my view, the Minister is not bound to take into account as a relevant consideration the fact that there is an opportunity to refer this decision to a delegate. There is no doubt that the Minister has the power to exercise the discretion vested in him pursuant to s.501(2) and I cannot accept that in the circumstances of this case the failure to consider the referral of the decision to a delegate and/or advise the applicant that an opportunity existed for that decision to be made could be regarded in any way as a relevant issue which the Minister is bound to take into account in making his decision. (See W352 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 398 (per French J, 5 April 2002) at [32]). 94. There is nothing in the legislation which makes the issue of a referral to a delegate a matter which needs to be brought to the attention of the Minister and in the circumstances it is perhaps trite to note that in any event such a matter would not need to be brought to the Minister's attention as it is part of a statutory power which he exercised in this instance where clearly the opportunity is available by application of s.501(2) for a delegate to make a decision. In the absence of any specific legislative requirement it is further my view that this could not be regarded as a relevant consideration which the Minister has to take into account or indeed which he is bound to take into account in making his decision. (See also Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 180 ALR 1 at [73] - [74]). 95. Likewise, I accept the submission by the respondent that it is not a relevant consideration upon review that the applicant in the present proceeding has been denied the opportunity of review by the AAT. 96. I am further satisfied that it cannot be said that the decision by the Minister to exercise a discretion personally may of itself be regarded as acting in bad faith or for what might be regarded as an ulterior purpose. (See Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 959 (Tamberlin J, 6 August 2002) at [18] - [19]). 97. Since the decision of the High Court in S157 it is clear to me that in considering the exercise of a discretion which may otherwise be subject to the operation of the privative clause, namely s.474 of the Act, I need to consider whether there has been any jurisdictional error. 98. In the present case, there are a number of matters of concern, none the least of which is the fact that there has not been any reason for the decision given by the Minister. 99. In my view, it is appropriate to apply the reasoning of the Full Court of the Federal Court in W157/00A and in the circumstances, given that case predated the High Court decision of S157, the conclusion drawn by the Full Court of the Federal Court may not now necessarily apply. In any event, and as a starting point, I am satisfied that the document which has been referred to as `Decision Record' could not possibly be regarded as any or any appropriate reasons for a decision by the Minister. I otherwise apply and adopt the analysis of this type of document undertaken by Branson J in W157/00A. 100. In the present case, the decision record sets out a number of relevant considerations and provides background details. I note that at page 25 of the Court Book there appears to be a series of signatures and dates which purport to apply to this document which interestingly, contain the Minister's decision dated 26 August 2002. The page after that shows that the document was, " `Prepared by' Mr Carlos Bagnato and the date given is 25/7/02. It then shows that it has been `checked by' Stefan Mirenda and the date given is 24/7/02. It is then said to be `cleared by' Joseph Petyanskszki and the date given is 25/7/02. It is further cleared by Stephen Russell and the date given is 26/7/02." 101. It would appear that there may well be an error in that it seems that in the circumstances that the document would have been prepared by Mr Bagmato before it was checked by Mr Mirenda yet the dates show that it was checked before it was prepared. It is then cleared on the same day it was prepared by Mr Petyanskszki and it is the next day upon which the document has been further cleared by the State manager, Mr Russell. Approximately one month later, the decision is made by the Minister. 102. Whilst the Minister refers to having considered "all relevant matters", there is nothing in the decision which would indicate to the applicant the basis upon which that decision was made. Indeed, many of the details set out in the decision record may be said to be in conflict. They are factors which can be weighed up and decisions made. 103. Of fundamental significance in my view is the fact that under the heading "The Best Interests of the Children", the author of the document simply states: "Mr Griffiths does not have any children therefore this section does not apply. And his de facto spouse is expecting the couple's first child in December 2002. This issue is referred to in `Other Considerations'." 104. I do not accept that the best interests of the children would not cover the best interests of a child yet to be born though conceived. It seems artificial to ignore the United Nations Convention and/or interpret it in such a narrow way that it would be confined to a "living child". 105. In any event, even if I am incorrect in terms of a technical interpretation of the UN Convention, it seems to me well within the exercise of the power of the respondent and his discretion to have regard to the best interests of the children including the interests of a child whose birth is anticipated within four months of the decision. That factor should not have been relegated to a heading of "Other Considerations". The relegation of it to that heading underlines the inadequacy of the process in that the reader of the document has little or no insight into whether or not the Minister took that factor into account at all and/or indeed whether the Minister took into account that the consequences of the decision in this instance, without warning, would be to compel the applicant who has resided in this country since the age of eight to leave this country with his de factor partner and newly born child and establish himself in New Zealand away from all relatives and friends save for one aunt. Unfortunately, the Minister's decision gives no insight at all as to the basis upon which the decision was made. To the extent that there is an absence of explanation due to their being a lack of reasons, it is open for me to find in my view that there has been jurisdictional error in the way in which the Minister dealt with this topic, in that he may well have misdirected himself as to the principles to be applied in considering the interests of the unborn child as not being a matter which would involve consideration of similar factors to those factors that would otherwise be considered for a child then born. 106. In my view, the failure to give reasons for a decision in circumstances where the legislature provides for the decision of this kind under s.501(2) is a decision to which the rules of natural justice should apply is itself in breach of the rules of natural justice by failing to give those reasons for decision. That failure itself, in my view, entitles this Court to draw the conclusion that the decision is a nullity and that therefore there is jurisdictional error. It would follow on that basis alone that the denial of natural justice by failure to provide written reasons and/or any basis upon which the decision is made, is sufficient to constitute jurisdictional error and the decision of the Minister should therefore be quashed. 107. Reliance was placed by the applicant upon the Wednesbury principles. In my view, it is possible for a finding in matters of this kind that the decision is one which when looked at objectively is so devoid of plausible justification that no reasonable body or person could have reached the decision. I am mindful of the significance of the requirement to give reasons cited by the Court in W157/00A where the Court cited a passage which had been set out by the trial judge De Smith et al Judicial Review of Administrative Action, (5th Ed) at page 549. 108. It is clear in the present case that s.501G(1)(e) requires that where a decision is made under s.501(2) as in the present case, then apart from giving notice setting out the decision and specifying the provision under which the decision was made and the effect of that decision, the section provides that the Minister shall also set out "the Reasons (other than non-disclosable information) for the decision". Whilst I accept that as discussed by the Court in W157/00A (at paragraphs 60 and 61) that the requirement to provide reasons occurs after a decision is made which applies to Refugee Review Tribunal pursuant to s.430(1) of the Act I am are further bound by that court's decision that the failure of the Minister to give reasons which complied with the requirement of s.401G(1)(a) does not of itself enliven a ground of review given it is a requirement to be observed in connection with the decision once made. It seems to me that it is still capable of forming a basis for a finding of jurisdictional error in a sense that I am able to conclude that in this case there has been little insight at all into whether the Minister had properly considered or directed himself in relation to the manner in which he should deal with the interests of the then unborn child. It is in that sense that the failure to comply with the statutory provision of s.501G(1)(e) enlivens a ground for review notwithstanding I accept this conclusion on the issue of the notice as discussed by the Court in W157/00A. On the facts in the present case I am satisfied that the Minister has not considered properly the interests of the unborn child in the present case. To that extent the present case is distinguishable from the facts set out in W157/00A where I note the Court was unable to find that the Minister had overlooked the issue in that case. (See paragraph 76.) In the absence of any express finding in relation to the best interests of the unborn child, I am prepared to find that in those circumstances the judicial review is enlivened in the present application. 109. In the absence of reasons, the decision to cancel the visa of a person who has resided in Australia from the age of eight in the circumstances which I described earlier, without having regard to his rehabilitation after release from prison, without appearing to take into account the lack of warning, and ignoring the consequences to the de facto spouse of the applicant, an Australian citizen, and her child, also an Australian citizen, leads to a conclusion which in my view could properly be regarded as an absurd outcome. 110. In the absence of reasons for decision, it is not appropriate in my view to simply conclude that the information being made available to the Minister is then information which he had properly regarded in the exercise of his discretion as there was no indication in the material that he did so or that he rejected or accepted that part of the background during the course of the exercise of his discretion. 111. In my view, it is not simply a matter in the present case as referred to by Wilcox J in the Singh decision of this Court expressing disagreement with the decision or indeed the weight given to the decision or indeed profoundly disagreeing with the decision. It does go further in the present case, as in my view in the absence of even being able to assess the weight given to the various factors by the Minister in the absence of reasons for decision, it is sufficient for me to conclude that the Minister's decision in the present case should be held to be invalid on the ground of Wednesbury unreasonableness if the decision is so unreasonable as not to be open to the Minister. In my view that in itself is sufficient breach of natural justice to attract the principles of jurisdictional error and likewise can be relied upon as a basis upon which the Minister's decision should be quashed. 112. It is not necessary to further consider the operation of s.474 in the present circumstances or indeed further consider the issue of whether the Hickman provisos apply. However, in the event that I am wrong in relation to the finding that there has been jurisdictional error which infects the decision and that the privative clause does apply, then it is appropriate that I consider at least the issue of whether or not one of the Hickman provisos applies, namely the issue of whether there has been a bona fide attempt to exercise power. I am mindful that the proviso has been narrowly construed in a number of decisions of the Federal Court. I further accept, that the proviso should only be applied in cases which may be regarded as rare or extreme. Errors of fact, law or logic are not sufficient. It is clear that the allegation of a lack of bona fides is an extremely serious one and should not be made without proper foundation (see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 361) at [42] - [48]). 113. I do not accept that the timing of the decision coming after the third conviction of itself would necessarily constitute evidence of personal fault or absence of honesty. 114. I am also satisfied that the mere fact that the Minister chose to make the decision himself again, would not constitute evidence of a lack of good faith. 115. As I have found that there is no statutory requirement to provide a warning, on the earlier occasions when the applicant had been sentenced to 12 months imprisonment, I do not regard the failure to either act earlier or provide a warning earlier as itself being evidence of personal fault or absence of honesty. 116. I am not satisfied in the circumstances of this case that there is evidence of personal fault or absence of honesty on the part of the Minister but rather he has failed to provide reasons for his decisions, has failed to thereby comply with the rules of natural justice, and as indicated in my view, has reached a decision which upon the material is a decision which was not reasonably open to him to make in all the circumstances. He has thereby failed to consider properly or at all the interests of the unborn child. That does not mean, however, that the decision is one which can be said to lack bona fides. 117. In considering the issue of jurisdictional error it is my view that in the light of the High Court decision in S157 perhaps contrary to the view of the Full Federal Court in NAAV, this Court is able to rely upon what is often described as the broad version of jurisdictional error identified in the High Court decision of Craig v South Australia cited by the decision of the High Court in Yusuf (per McHugh, Gummow and Hayne JJ) where that Court stated at paragraph 82 the following:- "Jurisdictional error can thus be seen to embrace a number of different kinds of error, a list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision make both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that effects the exercise of power is to make an error of law. Further, doing so results in the decision maker exceeded the authority or powers given by the relevant statute. In other words, if an error of those types is made the decision maker did not have the authority to make the decision that was made, he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." 118. I am further satisfied that the manner in which the respondent dealt with the issue of the applicant's unborn child can properly be regarded as a fundamental mistake in expressing and considering the claim by the applicant and may therefore be regarded as a jurisdictional error. It is a constructive failure for the respondent to exercise the jurisdiction and powers which he possesses. It is such a basic misunderstanding of the case of the applicant that in my view the result is so serious that it effectively undermines the lawfulness of the decision in question in a fundamental way. (See Dranichnikov v Minister for Immigration & Multicultural Affairs; re Minister for Immigration & Multicultural Affairs (2003) HCA 26 (8 May 2003) at paragraphs [86 to 88].) 119. In the present case, the absence of reasons should not act as a veil to protect the Minister's decision from claims that he has made a jurisdictional error by not giving any or any sufficient weight at all to the interest of the child, the substantial inconvenience to the applicant's house in being forced to follow the applicant and leave Australia along with her Australian-born child, to suffer what clearly would be a potential hardship both economic and social in circumstances of family upheaval. As indicated earlier, failure to provide reasons for a decision does constitute breach of the rules of natural justice and in the present case I am satisfied this represents jurisdictional error. It would be perverse if the failure to give those reasons could now be used in a way in which would avoid the criticism of the decision on the basis of jurisdictional error and a finding of a breach of the rules of natural justice. On the basis of jurisdictional error and/or Wednesbury unreasonableness the decision in the present case is one which is not reasonably open to the Minister. 120. For those reasons it follows that the decision dated 26 August 2002 should be quashed. I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of McInnis FM Associate: Date: 20 June 2003
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