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MIGRATION – cancellation of visa under s 501(2) of the Migration Act 1958 (Cth) –s 501(2) contemplates opportunity to endeavour to persuade the Minister not to exercise his or her discretion to cancel the visa in the event of Minster finding the visa holder does not pass the character test – Minister’s mistaken belief that visa holder had been notified amounted to jurisdictional error

PRACTICE AND PROCEDURE – failure to notify visa holder of intention to cancel visa under s 501(2) of the Migration Act 1958 (Cth) - visa holder not accorded procedural fairness because s 510 (2) contemplates the opportunity to be heard prior to cancellation

Minister for Immigration & Multicultural & Indigenous Affairsv George [2004

Minister for Immigration & Multicultural & Indigenous Affairsv George [2004] FCAFC 276 (25 October 2004)
Last Updated: 26 October 2004

FEDERAL COURT OF AUSTRALIA


Minister for Immigration & Multicultural & Indigenous Affairs v George

[2004] FCAFC 276

MIGRATION – cancellation of visa under s 501(2) of the Migration Act 1958 (Cth) –s 501(2) contemplates opportunity to endeavour to persuade the Minister not to exercise his or her discretion to cancel the visa in the event of Minster finding the visa holder does not pass the character test – Minister’s mistaken belief that visa holder had been notified amounted to jurisdictional error

PRACTICE AND PROCEDURE – failure to notify visa holder of intention to cancel visa under s 501(2) of the Migration Act 1958 (Cth) - visa holder not accorded procedural fairness because s 510 (2) contemplates the opportunity to be heard prior to cancellation





Migration Act 1958 (Cth), ss 494B, 494B(4), 499, 501, 501(2), 501(6), 504(1)(e), 504(3), 501(6)
Migration Regulations 1994, reg 2.55


George v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 38
Von Einem v Griffin (1998) 72 SASR 110 referred to
Osborne v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 416 referred to
Osborne v The Minister [2002] FCA 1113 applied
Tickner v Chapman (1995) 57 FCR 451 referred to
R v Criminal Injuries Compensation Board; Ex Parte A [1999] 2 AC 330 applied
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred to
Plaintiff s157 of 2002 v Commonwealth of Australia [2003] HCA 2 referred to






MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v GAVIN SEAN GEORGE

W41 OF 2004



BLACK CJ, EMMETT & SELWAY JJ
25 OCTOBER 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W41 OF 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: GAVIN SEAN GEORGE
RESPONDENT
JUDGES: BLACK CJ, EMMETT & SELWAY JJ
DATE OF ORDER: 25 OCTOBER 2004
WHERE MADE: PERTH


THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.












Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W41 OF 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: GAVIN SEAN GEORGE
RESPONDENT
JUDGES: BLACK CJ, EMMETT & SELWAY JJ
DATE: 25 OCTOBER 2004
PLACE: PERTH


THE COURT:

1 Mr Gavin George (‘the Respondent’) commenced a proceeding in this Court against the appellant, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), seeking writs of prohibition and certiorari. On 29 October 2002 the Minister had decided to cancel the Respondent’s residence visa. The Respondent claimed that that cancellation was invalid. A judge of the Court concluded that the cancellation was invalid and ordered that the Minister’s decision be quashed: see George v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 38. The Minister has appealed from the judgment of the primary judge. On the appeal, the Respondent seeks to support the primary judge’s decision not only on the grounds relied on by his Honour but also on other grounds.

2 For the reasons given below, the appeal should be dismissed with costs.

THE CONTEXT

3 The Respondent arrived in Australia from South Africa on 10 April 1987 as a child migrant accompanying his parents. He was then 15 years old. He subsequently committed a number of criminal offences in Australia. In addition to minor traffic offences, the offences committed by him since he reached 18 years of age include:

Date of Court Counts Charges Sentence
12 July 1990 1 Stealing $200
14 August 1990 1 Stealing $100
16 January 1991 1 On Premises Without Lawful Excuse $300
30 July 1991 1 Damage $300
4 June 1993 2 Burglary Prescribed Offence 14 mths imp ea chg conc
9 June 1993 1 Cannabis Cultivate 1 mth imp conc

1 Cannabis Possess a Quantity 1 mth imp conc

1 Disorderly Conduct 1 mth imp conc

48 Fraud 4 mths imp conc ea chg

1 Possess Offensive Weapon 1 mth imp conc

1 Possess Smoking Implement 1 mth imp conc
28 February 1995 2 Burglary 1.8 mths imp 2.6 mths imp cum

1 Deprivation of Liberty 14 mths imp conc
13 September 1996 1 Stealing $600
30 January 1997 2 Breach of Restraint Order $100 ea chg
11 September 1997 1 Assault occasioning bodily harm $600
15 May 1998 1 No Motor Drivers License
Under suspension 4 mths imp, Susp Sent
12 mths, MDL Disq, 9 mths cum
5 May, 1999 1 No Motor Drivers License
Under suspension 4 mths imp,
MDL Disq, 15 mths cum
30 September 1999 1 No Motor Drivers License
Under suspension 4 mths imp, MDL Disq
18 mths cum





15 March 2000 2 Breach of violence restraining order $50 ea chg
1 November 2000 1 Breach of violence restraining order $500
10 April 2001 1 Annoyance/Intimidation by Violence/Other 8 mths imp conc

1 Assault Occasioning bodily harm 8 mths imp

130 Breach of violence restraining order 8 mths imp conc (Global)

3 Damage 8 mths imp conc (Global)


4 The Minister understood that, by reason of this criminal record, the Minister could cancel the Respondent’s visa pursuant to s 501 of the Migration Act 1958 (Cth). That section relevantly provides:

‘Decision of Minister or delegate--natural justice applies
(1) .....
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
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 subsection (3) may only be exercised by the Minister personally.

(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

Character test

(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;

(ii) the person's past and present general conduct;

the person is not of good character; or

(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or

(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or

(iv) incite discord in the Australian community or in a segment of that community; or

(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test.

Substantial criminal record

(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
.....

(11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:
(a) it does not involve violence, or threatened violence, to the person; or
(b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.

Definitions

(12) In this section:
court includes a court martial or similar military tribunal.
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.

Note 1: Visa is defined by section 5 and includes, but is not limited to, a protection visa.
Note 2: For notification of decisions under subsection (1) or (2), see section 501G.
Note 3: For notification of decisions under subsection (3), see section 501C.’

5 On 2 November 1993 the Department of Immigration, Local Government and Ethnic Affairs (as it then was) (‘the Department’) informed the Respondent by letter that the then Minister had decided not to order his deportation from Australia by reason of his convictions on 4 June 1993 but that ‘nevertheless you are warned that any further conviction will lead to the question of your deportation being reconsidered by the Minister’. On 18 April 1996 the Department again informed the Respondent in writing that the then Minister had decided not to deport him by reason of his conviction for burglary on 28 February 1995. The letter provided that, ‘it is important that you realise that any further conviction will lead to the question of your deportation being reconsidered. Disregard of this second warning will weigh heavily against you if your case is reconsidered.’ On 19 July 1999, following the Respondent’s conviction and sentence to imprisonment for driving offences on 5 May 1999, the Department again wrote to him reminding him that he continued to be liable for deportation.

6 Following the Respondent’s convictions of 10 April 2001, officers of the Department made a written submission to the Minister dated 10 October 2002 (‘the Departmental Submission’). The Departmental Submission addressed the question whether the Minister could be satisfied whether the Respondent failed the ‘character test’ in s 501(6) of the Act and, if he did, whether his visa should be cancelled pursuant to s 501(2) of the Act. The Departmental Submission is discussed in more detail below.

7 Before preparing the Departmental Submission, the officers attempted to give the Respondent an opportunity to make any submissions or comments that he wished to have conveyed to the Minister for the Minister’s consideration. For that purpose they wrote to the Respondent by registered mail at an address held by the Department. The letter, if it had been received, would have informed the Respondent that the Minister would be considering whether his visa should be cancelled under s 501(2) of the Act and would have advised him that he had the opportunity to make any submissions for consideration by the Minister. That letter was returned undelivered.

8 The Departmental officers were subsequently informed by the West Australian Police that the Respondent was living at another address. They were also informed of two telephone numbers for the Respondent including a mobile number. The information from the Police is discussed in more detail below. On the basis of that information a second letter to the same effect as the earlier one was forwarded by registered mail to that new address. The terms of that letter are set out below. It appears that the Respondent may not have been living at that address at that time, although some friends were. It appears, however, that the Respondent commenced living at that address some time after the registered letter was sent to the address. The Respondent says (and it is not disputed) that he did not receive either of the letters from the Department and that he was not aware of either of them. Nevertheless the second registered letter was not returned to the Department.

9 The Departmental officers proceeded on the basis that the second registered letter had been received by the Respondent, and that the Respondent had accordingly been afforded an opportunity to make any submissions that he wished the Minister to consider, but that the Respondent had not availed himself of that opportunity. Consequently, there was no follow up by the Department for the purpose of seeking the Respondent’s response. In particular, the Department did not seek to contact the Respondent by means of the telephone numbers given by the police. Nor did the Department seek to contact the Respondent in person.

10 In this regard the Department has a procedure for such notification (‘MSI-254’), which relevantly specifies as follows:

‘7.6 Notification of Intention to Cancel

7.6.1 When initial enquiries have indicated that grounds may exist for cancellation under s 501 and it is decided to pursue possible visa cancellation, the visa holder must be notified that there appear to be grounds for cancellation of his or her visa. This may be done in writing or orally, if in writing see Attachment 11. It is preferable that notification is done in writing (see 7.7).

Note: The case officer may forward the Notice of Intention to Cancel; it is not essential that a s501 delegate notify the visa holder personally. While this is a task that may be performed by the case officer, it is the s 501 delegate who makes the final decision regarding whether or not the non-citizen passes the Character Test.

7.7 Serving a Notice of Intention to Cancel

7.7.1 In general, a Notice of Intention to Cancel a visa under s 501 is to be given to a visa holder in writing and served on the visa holder personally by a Departmental officer where possible. Where this is not possible, it should either be given orally to the visa holder or sent by certified mail. The date and time the Notice is served must be recorded on the case file. If the visa holder is serving a criminal sentence, the Notice may be served through the prison authorities. In those circumstances, written acknowledgment of receipt signed by the visa holder must be obtained.

7.7.2 There are three circumstances in which a Notice of Intention to Cancel may be given orally:
• where the visa holder is overseas;
• where the visa holder is in immigration clearance; and
• where the visa holder has been located by Compliance in the field.

Note: If notification is done orally. a file note must be entered on file recording the time and date of notification.

7.7.3 Normally the person should be given a written notice of intention to cancel. If the notice is served personally then an acknowledgment of the receipt as well as a contemporaneous note is to be made of the time, place and date in which this occurred. Where the notice is not served personally a record must be kept as to the manner of service, eg certified mail, and an acknowledgment of the receipt should be obtained:
• case officers should note that at a later date the Department may need to show evidence that the Notice was actually received. A visa cancellation decision is at risk of being declared invalid by a review authority or the courts if such evidence is not available.’

11 Both of the letters referred to above were sent by registered mail and, to that extent, complied with the procedure set out in MS1 254. However, an acknowledgement of receipt was not obtained. MS1 254 would seem to have required that such acknowledgement be obtained, apparently for evidentiary purposes. No evidence was put before the primary judge to suggest that the Respondent was aware of the Departmental instruction MSI 254 or that he relied upon it in any way.

12 The Departmental Submission was headed ‘ISSUES FOR CONSIDERATION OF POSSIBLE CANCELLATION OF Mr GEORGE’S VISA UNDER S.501(2) OF THE MIGRATION ACT 1958’. The Departmental Submission dealt with a number of matters: :

(a) setting out details of the offences committed by the Respondent and the sentences imposed in relation to them and advising the Minister that ‘it is open for you to find on the above facts that there is a reasonable suspicion that [the respondent] does not pass the character test...’;
(b) informing the Minister of various issues relevant to the exercise of his discretion as to whether the Respondent should be permitted to stay in Australia;
(c) advising that the Respondent had not responded to the written invitation to make any comment on the exercise of the discretion;
(d) stating that it was open to the Minister to find that the criminal conduct reflected in the convictions was serious;
(e) reporting that, in the absence of any comment from the Respondent, the Respondents had not put forward any factors by way of mitigation;
(f) referring to the fact that the Respondent had received previous warnings from the Department;
(g) advising that, in light of various materials that were referred to and annexed (including sentencing remarks and copies of reports on the previous occasions when warnings had been given), it was open to the Minister to find that there was a high risk that the Respondent would re-offend;
(h) stating that it was open to the Minister to find that the cancellation of the Respondent’s visa would operate to deter others in his position from committing similar offences, and further that the character of the offences are such that the Australian community would expect that the Respondent would be removed from Australia.
13 Records held by the Department showed that the Respondent was the father of one child living in Australia. The Departmental Submission stated that, in the absence of any submission or comment from the Respondent, the current status or custody of that child was unknown. It also stated that there was no evidence as to the current nature of the relationship between the Respondent and the child, or as to the child’s citizenship or as to the likely effect on the child of any separation from the Respondent. It stated that if the child did leave Australia with the Respondent, the likely place to which they would be returned would be South Africa. The Departmental Submission concluded that, in those circumstances, it was open to the Minister to find that the cancellation of the Respondent’s visa and his removal from Australia would not have a detrimental effect on his ‘alleged’ child. A copy of a deportation submission dated 26 February 1996 was attached.

14 The Departmental Submission also stated that the Respondent’s father, mother, four sisters, two brothers and an ‘alleged’ de facto spouse all lived in Australia. He had some other relatives in South Africa including a maternal grandmother. It stated that the Department had no evidence as to whether the removal of the Respondent from Australia would affect the Respondent’s family, business or other ties with the Australian community.

15 On 29 October, 2002 the Minister made the following decision:

‘I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and have decided that: I reasonably suspect that Mr GEORGE does not pass the character test and Mr George 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.’

16 The direction under s 499 of the Act referred to in the Minister’s decision is a direction (Direction No. 21) made by the Minister to persons exercising functions or powers under the Act. In this instance, the relevant direction relates to the manner in which a delegate would exercise the powers and functions of the Minister under s 501 of the Act. The direction does not bind the Minister. Nor is there any evidence to suggest that the Respondent was aware of the direction or that he relied upon it. In any event it is not suggested that Direction No. 21 was not complied with in this case.

17 The primary judge found, correctly in our view, that the reasons for the Minister’s decision to cancel the visa were those reasons set out in the Departmental Submission. There was some other evidence before the primary judge in relation to those reasons. An affidavit was filed by the Minister’s solicitor annexing a signed statement by the Minister in which the Minister outlined what he said were the reasons why he made the decision. Such a statement was not an ‘official record’ for the purposes of s 155 of the Evidence Act 1995 (Cth); contrast the Departmental Submission and the decision of the Minister referred to above. As the procedure adopted in making the affidavit effectively precluded any possibility of cross-examining the Minister, the primary judge, in the interests of justice, declined to receive that part of the affidavit. His Honour was undoubtedly correct to do so, even though there was a discretion as to whether the Respondent would have been entitled to cross examine the Minister on his affidavit if he had made one: see Von Einem v Griffin (1998) 72 SASR 110 at 123.

THE DECISION APPEALED FROM

18 In the proceedings before the primary judge the parties filed various affidavits that set out the factual background to the decision as discussed above. The affidavits filed on behalf of the Minister set out the attempts made by the Departmental officers to forward the relevant letters by registered mail to the two addresses referred to above and the information as to the Respondent’s address that had been provided by the police.

19 Affidavits were also filed on behalf of the Respondent. Those affidavits depose that the Respondent did not receive the letters described above; that he is the father of two children, both of whom are Australian citizens; and that neither the children nor their mother was contacted or given the opportunity to comment on the proposal to cancel the Respondent’s visa.

20 The parties accepted before the primary judge, and before this Court, that in order to succeed, the Respondent had to show that there had been some jurisdictional error in the decision of the Minister or in the process leading to it. The Respondent argued that the process by which the decision was made was affected by three jurisdictional errors and that the decision was consequently invalid.

21 The first alleged error related to the process of notification of the Respondent for the purpose of giving the Respondent the opportunity to comment. The Respondent said that there had been a jurisdictional error in that he had not been given a fair hearing. He argued that the Minister was required to give him notice that the Minister might make a decision under s 501 of the Act and that the Minister was required to give him an opportunity to be heard in relation to that decision. The primary judge accepted that there had been a jurisdictional error in that respect. The primary judge referred to the decision in Osborne v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 416 and accepted that reasonable steps had to be taken to notify the visa holder that the visa might be cancelled. His Honour also referred to the internal procedure MSI 254 set out above.

22 The primary judge concluded:

‘It is submitted that DIMIA should have followed its own procedures as they appear in the Migration Series Instruction MSI-254, par 7.7 in relation to the serving of a notice of intention to cancel. There it is stated that in general such a notice is to be given to a visa holder in writing and served on the visa holder personally by a Departmental officer where possible. Where that is not possible, the instructions envisage the notice should be given orally to the visa holder or sent by certified mail. The instructions permit oral notification where the visa holder is overseas, is in immigration clearance or has been located by compliance in the field. Instructions say that normally a written notice of intention to cancel would be given.

For the [respondent] it is contended that the requirements of MSI-254 set the minimum standard concerning what the [applicant] and DIMIA regard as reasonable steps to be taken to ensure that the [applicant] has fulfilled his obligations to afford natural justice. It is said that such argument was not advanced and the Court’s attention was not directed to MSI-254 in Osborne and in Ball.

In submissions in response for the [applicant] it is agreed that it is important the information from the Western Australian Police in accordance with which the notice was addressed was received only nine days before the letter was prepared and so was current information. Additionally, such advice was not an idle tip-off but the product of recent contact with the applicant. In those circumstances it is submitted that it was reasonable for the notice of intention here to be dispatched by registered post to that address. French J accepted in Osborne that "to send a notice of intended cancellation to his last known address is a reasonable step".

There is an additional potential consideration. In April 2001 reg 2.55 of the Migration Regulations 1994 came into effect. Pursuant to reg 2.55(1) and reg 2.55(3) a document relating to the proposed cancellation of a visa under the Act may be given to a visa holder by dating and then dispatching it within three working days, by prepaid post or other prepaid means, to the person’s last residential address as known to the respondent. The two notices sent to the [respondent] having complied with these requirements, reg 2.55(7) had effect and the [respondent] was taken to have received the notice 7 days after the date of the documents. However, the regulations themselves cannot set the standard as to what is reasonable: this was specifically rejected by French J in Osborne at [20], on the basis that the regulations do not in terms condition the effect of the exercise of the power under s 501.

In Ball at [25], Ryan J stated that the concept of a last known address in reg 2.55(3)(c) does not depend on the Minister’s knowledge coming from a particular source nor does it require that the Minister’s knowledge be verified in any particular way. He said that it was sufficient that the means of knowledge relied on by the Minister was reasonable in all the circumstances.

In my view this issue is to be resolved by application of the approach followed in Osborne and Ball. That requires the Court to form a view on whether the implied condition of notification was satisfied by reasonable steps being taken in all the circumstances. Here, unlike Osborne and Ball, the circumstances included the provisions of MSI-254, par 7.7. Given those provisions, it cannot be objectively concluded that sending of the notification to the address provided by the Police alone was reasonable.

In reaching this view I do not seek to hold either that MSI-254 prescribes a minimum standard of reasonableness or that any of the particular steps said to have been additionally appropriate were ones which should have been taken. It is sufficient to conclude, as I consider the evidence requires, that where the statutory provisions are to be understood as subject to the implied condition and that MSI-254 sets out a procedure which has not been followed. It follows that it was not reasonable in all those circumstances for the notification to have been sent to the address supplied without more.

I conclude that the [respondent] is entitled to review on this first ground.’

23 The second alleged procedural error related to the alleged failure of the Minister to consider the best interests of the Respondent’s children. The Respondent argued that the Minister was not informed:

(a) that the Respondent had two children, rather than only one;

(b) that the children were Australian citizens;

(c) whether or not the children had any view or comment on the proposed cancellation of the Respondent’s visa.
The Respondent argued that reasonable inquiries by the Minister or his officers would have revealed the answers to each of those questions. The Respondent argued that the failure to make those reasonable inquiries amounted to a jurisdictional error.

24 The primary judge seems to have accepted that the Minister was under a duty to consider the best interests of the children. However, he did not accept the Respondent’s arguments that the Minister had not done so:

‘Turning attention to the issues document, it is apparent that where it addresses ‘the best interests of the children’ it was considerably affected by the absence of a current submission from the [respondent]. This was said expressly in relation to the issue of custody. A number of paragraphs state that "no evidence is held". Where it was stated "no evidence is held describing the citizenship of the child" the document was in error because there was evidence of the citizenship of the [respondent’s] first child. It is apparent that the level of information in the issues document was profoundly affected by the fact that the notice of intention to the [respondent] had not in fact elicited a response from him.

I am not able to agree with the submissions for the [applicant] that the ‘overwhelming’ inference from the information in the issues document on ‘the best interests of the children’ was that the child was an Australian citizen. Any possible inference of that arising from par 22 would have negated in the mind of the reader by reference to par 27. I accept the submission for the [respondent] that the issues document provides a lesser level of information on the interests of the children than that in Palme.

When the [applicant] turned to the decision record on the issue of the best interests of the child, he would have known of the allegations that one child was a possibility and that there was no evidence relating to that child. He would have been misinformed that no evidence was available in relation to the citizenship of the child. He would have considered, based on the information set out in the issues document, that it was open to him to find that the cancellation of the [respondent’s] visa and his removal from Australia would not have a detrimental effect on the alleged child.

Nevertheless, I am unable to accept that it can be established that there was a failure by the [applicant] to take into account the best interests of the alleged child as a primary consideration. There are two reasons for this. First, so far as those interests were known, they were taken into account. Second, it would be artificial to conclude, as in Long, that the [applicant] had not considered whether the best interests of the alleged child were outweighed by other circumstances because what was known concerning the alleged child was utterly minimal. That paucity of evidence was due to the failure of notification to find the applicant and elicit a response. The absence of any evidence made it patent to the respondent that the other circumstances did outweigh what little was known, namely, that there may be an alleged child.

In the course of the [respondent’s] submissions it was suggested that the [applicant] was under a duty to afford natural justice to the applicant’s two children, aged 7 and 5. In Kioa v West (1985) 159 CLR 550 at 588, Mason CJ stated that the duty to act fairly did not extend so far as to give an opportunity to a ten month old infant to present a case against the making of a deportation order against her parents, so that the case presented on behalf of her parents was an adequate opportunity. Brennan J at 629-630 considered that the child should have such an opportunity but that it was satisfied on the basis of the representations of the parents. Deane J at 634 said that the child had no separate entitlement to be heard in relation to any such orders despite their consequential effect for her. The [respondent] contends that here when no submissions were made or received, the children’s interests have not been met and the duty to afford natural justice to the elder child remain unsatisfied.

All that was known to the [applicant] was an allegation that the [respondent] was the biological father of one child and that could not be tested successfully through the Registry of Births, Deaths and Marriages. In the circumstances I do not consider that it could be said that an obligation to afford natural justice to at least the eldest child arose on the [applicant]. That may have been different if the child had been identified or further information given concerning his location or existence but all that can be said is such were not the circumstances in the present case.

Therefore I do not consider the application for review should succeed on the ground that the [applicant] did not in the circumstances take into account the relevant consideration previously referred to.’

25 Finally, the Respondent also argued that the Minister did not have jurisdiction to cancel the Respondent’s visa. That argument, and the primary judge’s rejection of it, is explained in his Honour’s reasons as follows:

‘This ground contends that the respondent erred in law in determining that the [respondent] had a substantial criminal record because the [applicant] had regard to the [respondent’s] four convictions in 2001 in circumstances where the sentences were to be served concurrently with a term of imprisonment of 8 months. The [respondent’s] contention is that the [applicant] approached the matter in a way which overlooked that the sentences were concurrent. It is said that this led the [applicant] into error of the finding that the requirement of the sentences totalling more than 2 years or more of imprisonment wrongly to be met.

There is no jurisdictional error raised by this ground. This is because having regard to the [respondent’s] record of offences giving rise to a sentence of imprisonment and excluding concurrent offences, the [respondent] is seen to have been sentenced 8 terms of imprisonment totalling 4 years 1 month. The [respondent’s] position is therefore legally and factually distinguishable from those in Ball and Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [65]-[77]. Consequently, there is no need to consider whether those decisions were incorrectly decided.

This ground cannot therefore succeed.’

THE APPEAL

26 The Minister has appealed from the primary judge’s decision. The Minister says that the primary judge erred in determining that the limited attempts made by the Minister and his officers to give the Respondent notice of possible cancellation of his visa had the consequence that there was a denial of procedural fairness. The Respondent has filed a Notice of Contention for the purpose of repeating the arguments he put to the primary judge in relation to taking account of the best interests of the children and in relation to the calculation of the Respondent’s criminal record. The consequence is that each of the three legal arguments that were pursued before the primary judge have been re-argued before us.

RIGHT TO PROCEDURAL FAIRNESS

27 Section 501(2) relevantly provides that the Minister may cancel a visa that has been granted to a person if:

• the Minister reasonably suspects that the person does not pass the character test; and
• the person does not satisfy the Minister that the person passes the character test.

There is no express provision in the Act requiring notice to be given to a visa holder as a condition of the exercise of the Minister’s power to cancel a visa under s 501(2). However, the requirement that the person ‘does not satisfy the Minister that the person passes the character test’ implies some prior notice to the person of the Minister’s intention to consider cancelling the visa. That requirement clearly indicates that the Parliament assumed that the person would be given some opportunity to satisfy the Minister that the person passes the character test: Osborne v The Minister [2002] FCA 1113 at [19].

28 The Respondent’s complaint, of course, is not that he was not afforded the opportunity of satisfying the Minister that he passed the character test. On the material before the Court, it seems extremely unlikely that he could possibly have satisfied the Minister that he passed the character test. However, assuming that a person does not satisfy the Minister that the person passes the character test, the Minister still has a discretion as to whether to cancel a visa or not. The Respondent’s real complaint is that he was given no opportunity to endeavour to persuade the Minister to exercise that discretion in his favour. The Minister has not suggested that there is a distinction between a right to be heard on the question of whether or not a visa holder passes the character test and a right to be heard on the question of whether or not, assuming the visa holder does not, the Minister should exercise the discretion to cancel the visa.

29 Where a visa holder, by reason of the visa, has a permanent right to reside in Australia, such a person would have a legitimate expectation that, before the visa is cancelled, by the exercise of a discretionary power, the person would be given the opportunity to make submissions to the decision-maker as to why that discretionary power should not be exercised in favour of cancellation. Thus, in the present case, procedural fairness would require that the Respondent not only be given an opportunity to satisfy the Minister that he passes the character test, however unlikely success in that endeavour may be, but also the opportunity to endeavour to persuade the Minister, assuming the Minister was not satisfied that he passed the character test, that nevertheless the Minister should not exercise his discretion to cancel his visa. Accordingly, procedural fairness would require that the Respondent be notified that the Minister was considering cancelling his visa in order to be afforded the opportunity of persuading the Minister why that step should not be taken.

30 It would be open to the Parliament to specify circumstances where the notification that should be given to a person for such purposes is to be deemed to have been given to that person. Parliament might do that expressly by statute or by conferring on the Executive the power to do so by regulation. Where notification is deemed to have been given pursuant to such a provision, that will be an end of the matter, even though, because the person did not in fact receive notification, the effect of the deeming will be that the person has, in reality, not been given an opportunity of being heard.

31 On the other hand, where notification has in fact been given to the relevant person, whether or not in compliance with such a provision, that would ordinarily suffice for the purpose of affording procedural fairness. Thus, any requirement for notification before exercising the power in s501(2) would be satisfied by oral notice to a person, provided that the oral notice was adequate to alert the recipient that the Minister is contemplating cancelling that person’s visa and the person is to have the opportunity of endeavouring to satisfy the Minister that the person passes the character test or, that in any event that the visa should not be cancelled. Similarly, notification may be given in writing, whether or not in a manner specified by statute or regulation, so long as the recipient, by receipt of the writing, would be alerted as to the possibility of cancellation of the person’s visa and of the right to endeavour to satisfy the Minister that the person passes the character test or that the visa should not be cancelled even if the Minister is not so satisfied.

32 The Minister contends, however, that even where a person has not in fact received such notification and there is no statutory provision that deems the person to have received such notification, there are circumstances in which the Minister may still proceed to cancel a visa. In the present case, the Minister contends that the Respondent is deemed to have been notified but that, if the deeming provision does not operate, the circumstances are such that the Minister was entitled to cancel the Respondent’s visa notwithstanding that the Respondent had no notification of that possibility and had not in fact had the opportunity of endeavouring to satisfy the Minister either that he passed the character test, or, that the Minister should not exercise the discretion under s 501(2) to cancel his visa.

DEEMED NOTICE

33 Section 504(1)(e) of the Act relevantly provides that the Governor General may make regulations making provision for and in relation to the giving of documents to, or the service of documents on, any person for the purposes of the Act. Section 504(3) relevantly provides that the regulations that may be made under s 504(1)(e) include regulations providing that a document given to, or served on, a person in a specified way shall be taken to have been received by the person at a specified or ascertainable time. Pursuant to that power, regulation 2.55 has been made, which relevantly applies to the giving of a document to a holder of a visa relating to the proposed cancellation of a visa under the Act.

34 Regulation 2.55 of the Migration Regulations 1994 provides:

‘(1) This regulation applies to:
(a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and
...

(3) For a document mentioned in paragraph (1) (a)...., the Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i) is at the person's last residential or business address known to the Minister; and

(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(iii) appears to be at least 16 years of age;

(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and

(ii) by prepaid post or by other prepaid means;

to the person’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e-mail; or
(iii) other electronic means;
to the last fax number, e-mail address or other electronic address known to the Minister.
...

(7) If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia -- 7 working days (in the place of that address) after the date of the document; or
(b) in any other case -- 21 days after the date of the document.
...’

35 There may be a real question whether the giving of a notice by the officers as part of the process of advising the Minister (in distinction from officers acting as a delegate of the Minister) answers the description of documents given by the Minister for the purposes of the Regulation. As is clear from the discussion in Tickner v Chapman (1995) 57 FCR 451 at 462-463, the role of the decision-maker may be quite different from the role of the adviser, even if the decision-maker can rely upon the advice given to him or her. However, even assuming that the letter of 18 February, 2002 addressed to the Respondent at 42 Eucumbene Crescent, Joondalup, was a notice given by the Minister, the critical question in the present case is whether that letter was sent to the Respondent’s ‘last residential address... known to the Minister’.

36 Regulation 2.55 speaks of a person’s last address known to the Minister, whether a residential address, a business address or a post box address. The express requirement of the Regulation is that it must be an address of the person. The addresses to which the Department dispatched the relevant letters were not, and had never been, addresses of the Respondent. Accordingly, reg 2.55(7) had no application to deem the Respondent to have received the relevant letters in circumstances where he did not in fact receive them.

37 The effect of reg 2.55(7) can be draconian. It can clearly operate in circumstances where a person has moved from an address without the knowledge of the Minister. Nevertheless, had the executive government, in making the Regulations, intended that a person could be taken to have been given a document by leaving the document at an address with which the person has never had any connection, it would have been easy enough to say so. It did not. It referred expressly to ‘the person’s... address’. Regulation 2.55 is of no assistance to the Minister in the present case.

38 It is significant that s 494B, where the Parliament addressed this question, does not go as far as the Minister suggests reg 2.55 goes. Thus, s 494B(4) requires that a document be dispatched by prepaid post or by other prepaid means to the last address for service provided to the Minister by the recipient. Under that provision, a person may be taken to have received a document that the person has not in fact received. However, that would only be the result where the document is despatched to an address given by the person to the Minister, where the person has left that address, without notifying the Minister of the change.

REASONABLE STEPS TO NOTIFY

39 However, the Minister contends that the prerequisite of notification is not absolute. It is said that procedural fairness requires only that reasonable steps be taken to notify a visa holder before exercising the discretion to cancel the visa. Thus, to send a notice of intended cancellation to the last address of a visa holder known to the Minister is said to be a reasonable step if that address is in fact an address of the visa holder. When that last address is the address of a close relative, such as a parent of the visa holder with whom the visa holder had expressed an intention to live, the Minister says that would also be a reasonable step: see Osborne v The Minister (supra) at [20].

40 The question that arises in the present case, however, is whether, assuming that the Minister, or the Department, had taken all reasonable steps available on the information and material available to notify a person, that would be sufficient in circumstances where that information and material is, in fact, wrong or false. That is to say, where notice is sent to an address that was believed by the Minister or his officers, on reasonable grounds, to be the current residential address of a visa holder, does that satisfy the prerequisite of procedural fairness, when the address has never in fact been an address of the visa holder?

41 A further question, in the present case, may be whether the Minister, or the officers of the Department, did in fact take all steps reasonably open to them in circumstances where they failed to call the telephone numbers of the Respondent that were available to them and failed, contrary to MSI-254, to obtain acknowledgement of receipt of the letters sent by registered mail.

42 The author of the Departmental Submission, a case officer of the Visa Cancellation Unit in Perth of the Department, recognised that notification to the Respondent of the intention to consider cancelling his visa was required. Paragraph 8 of the Departmental Submission was as follows:

‘Mr GEORGE was notified by mail at 9 Sykes Cove Clarkson WA 6030 on 2 October 2001, of the intention to cancel the visa held by him pursuant to s.501 of the Act. That correspondence was returned to sender on 4 December 2001. He was again notified by mail on 18 February 2002, at his last known address of 42 Eucumbene Crescent Joondalup WA 6067, of the intention to cancel the visa held by him pursuant to s.501 of the Act. The cancellation ground was set out in the notice and he was invited to submit any comment that he believed relevant to the consideration of the issue of visa cancellation. Mr GEORGE has not responded to the invitation.

A copy of the Notices of Intention to Cancel given to Mr GEORGE are at Annex D.’

43 The document at ‘Annex D’ was a letter dated 18 February 2002, addressed to the Respondent at 42 Eucumbene Crescent, Joondalup WA 6027, which said, inter alia:

‘It has come to the attention of the Department that this visa may be liable for cancellation by the Minister under section 501 of the Migration Act 1958 (the Act)... I have attached the full text of s 501 for your information.

Before the Minister considers whether to cancel your visa under subsection 501(2), you are provided with an opportunity to comment. Matters to be taken into account include the following:

• Your substantial criminal record and/or
• Your past and present criminal conduct
• Your past and present general conduct


In reaching a decision whether to cancel the visa the Minister may have regard to the matters noted above and the attached Minister’s Direction No 21 titled ‘Direction under Section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958’.

In preparing your comments please read fully and carefully the contents of the Minister’s Direction. You should address each and every topic that you feel applies to you or is relevant to your circumstances. You may also provide any further information, apart from those considerations listed in the Minister’s Direction, that you feel the Minister ought to be aware of and take into account.’

44 The communication of 2 October 2001 referred to in the Departmental Submission was in similar terms. The clear inference to be drawn from the terms of the extract from of the Departmental Submission, as set out above, is that 42 Eucumbene Crescent, Joondalup was an address of the Respondent and that, the communication of 18 February 2002 not having been returned, the Minister should proceed on the basis that the Respondent did not wish to respond to the invitation to comment.

45 In his affidavit of 7 March 2003, the Respondent stated that he had never lived at 9 Sykes Cove, Clarkson, although he understood that his one time partner, Ms Huxley, had lived there whilst he was in prison in 2001. He also said that the address at 42 Eucumbene Crescent was the house of a long term friend and acquaintance and that he went to live at that address from about March 2002, when he resumed his relationship with Ms Huxley. He said that he continued to live there until he was detained in November 2002.

46 The Minister did not challenge those assertions. It was never suggested to the Respondent that he had in fact received the communication of 18 February 2002 and it was not suggested to the primary judge that a finding should be made that the Respondent had ever received either of the communications referred to in the Departmental Submission or that either of those addresses was an address of the Respondent at any time before March 2002. In those circumstances, this appeal should be determined on the footing that the Respondent did not in fact receive either communication and, accordingly, that the clear inference to be drawn from par 8 of the Departmental Submission at [42] above, was wrong.

47 On the other hand, the author of the Departmental Submission had some basis for including a paragraph that could give rise to that inference. On 9 February 2003, after the communication of 2 October 2001 had been returned undelivered, the Department received a facsimile communication from an officer of the West Australian Police. The facsimile communication included the following:

‘As per telephone conversation on 8th February, 2002 I am faxing the following information in relation to one:

Gavin Sean GEORGE
...

GEORGE is currently residing in Western Australia, but was born in South Africa and is not an Australian citizen.

I have spoken to Senior Constable Leesa SMITH who has had previous dealings with GEORGE and has notified your office in the past.
...

GEORGE is a repeat offender and has quite a substantial record for the short period he has been in Western Australia.

GEORGE is currently residing at 42 Eucumbene Crescent, Joondalup.

His contact phone numbers are: 041 5401965
9301 4209
...’

48 On the basis of that facsimile, the letter of 18 February 2003 was sent to the address at Joondalup. There was no reason for the author of the Departmental Submission to doubt the correctness of the statements contained in the facsimile from the police officer. On the other hand, no step was taken to verify the statements. The letter of 18 February 2003 was sent by certified mail and was apparently not returned. However, no evidence was put before the primary judge as to the system in relation to such mail. In particular, there was no evidence that such mail might only be collected from the Post Office by the addressee. It would have been a simple matter to endeavour to communicate with the Respondent by way of the telephone numbers set out in the facsimile, to verify receipt of the letter.

49 It is against the background of those facts that it is necessary to assess whether procedural fairness was accorded to the Respondent. The Minister does not suggest that any inference should be drawn that the Respondent in fact received the letter of 18 February 2003. Rather, as has been said, the matter proceeded on the basis that the Respondent had not received the letter and that the police officer was mistaken in his assertion that, as at 18 February 2002, the Respondent was residing at the Joondalup address. It may well be that the mistake of the police officer was a reasonable one, given that the house at Joondalup was the house of a long-term friend and acquaintance of the Respondent. The police officer may have seen the Respondent at that address and erroneously concluded that it was his residence. Be all that as it may, however, the fact remains that the Minister proceeded on the erroneous assumption that the Respondent had been notified of the Minister’s intention to consider cancelling his visa when in fact he had received no notification of such a possibility.

50 The first question is whether it is necessary to enquire beyond the material and information that was available to the Minister or the Departmental officers; is it sufficient if the Minister has acted reasonably in assuming, on the basis of the information and material available, that a visa holder has been notified of the proposal to cancel the person’s visa? Clearly, if that information and material is wrong and the person has not been notified, it would be objectively unfair for a decision to be made, because the person will not in fact have been afforded the opportunity of being heard: see R v Criminal Injuries Compensation Board; Ex Parte A [1999] 2 AC 330 at 345E.

51 On the other hand, looking at the matter from the point of view of the Minister, it may have been perfectly reasonable for the Minister to have assumed, on the basis of the incorrect or false information or material available, that the visa holder had been notified of the intention to consider cancellation and had chosen not to exercise the right to be heard on that question. In a sense, the decision could then be described as subjectively fair although, objectively, the process was unfair.

52 Where a decision is based on information or material that, unbeknownst to the decision-maker, is false or incorrect, that may not give rise to jurisdictional error, even though the decision may be objectively unfair, so long as there was in fact information or material before the decision-maker on which the decision could be based.

53 However, different considerations arise where, for whatever reason, a visa holder has not in truth been afforded the right to be heard. Where the Minister believes, erroneously, albeit on reasonable grounds, that a visa holder has been notified and proceeds on that untrue basis, there will be an error. The question is whether that error is a jurisdictional error. In order to determine whether a particular order is jurisdictional, it is essential to consider the relevant statutory context: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 374, 389-391 and Plaintiff s157 of 2002 v Commonwealth of Australia [2003] HCA 2 at [25– 26], [37], [69] and [76 - 78]. In circumstances where a visa entitles the holder to permanent residence in Australia and cancellation will render that person liable to detention and removal from Australia, a mistake as to whether the person has been notified of the intention to consider cancelling the visa is a very significant one. Such a mistake will be even more significant if the consequences of the cancellation of a visa entitling the holder to permanent residence in Australia may include separation from his family and removal to a country with which he no longer has any social connection. Such a mistake, acted upon as it was here, must be regarded as going to the jurisdiction of the decision-maker to cancel the visa where procedural fairness is required before doing so. Failure to do so will normally involve jurisdictional error, notwithstanding that what occurred was subjectively fair from the point of view of the decision-maker, because, on the material and information available to the decision-maker, it was reasonable to conclude that a right to be heard had been afforded. Of course, this general statement is subject to any contrary indications within the relevant statutory scheme including, in this case, the deeming provisions within the Act. However, for the reasons already given, they do not assist in this case.

54 The general statement will also not be applicable if, in any event, the procedure that has been followed is nevertheless a fair one. It may be that there are circumstances in which it will not be unfair that a person has not in fact received notification of the intention of the Minister to consider the cancellation of the person’s visa. For example, if the person is aware that the Minister wishes to communicate with him or her, has no knowledge of the subject matter of the intended communication but nevertheless avoids any communication with the Minister because of a fear that the communication may be detrimental, it may not be unfair for the Minister to proceed to make a decision, notwithstanding that the person has not in fact been notified of the possibility of cancellation of a visa. On the other hand, it would clearly be unfair even if the Minister forwarded an unequivocal written communication to an address that the Minister on reasonable grounds believed was the actual place of residence of the visa holder if the visa holder had never had any connection or association with that address or anybody who had any association with that address. Between those two possibilities there will be some circumstances which involve lack of procedural fairness and others where there will be no want of procedural fairness.

55 In the circumstances, the Respondent was not afforded procedural fairness in relation to the decision purportedly made by the Minster on 29 October 2002. The decision was therefore infected by jurisdictional error, as the primary judge found.

56 The issues raised by the Respondent in his Notice of Contention are not without some difficulty. In the circumstances, it is unnecessary to address those issues.


I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.



Associate:




Dated: 25 October 2004



Counsel for the Applicant: M T Ritter
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: H Christie
Solicitor for the Respondent: Christie & Strbac
Date of Hearing: 10 August 2004
Date of Judgment: 25 October 2004
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