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MIGRATION – Visa cancellation – Determination by Minister that respondent failed to pass the character test under s 501 of the Migration Act 1958 (Cth) on account of conviction for statutory supply of heroin – Minister exercised his discretion to cancel respondent’s resident return visa – Minister furnished by Department with remarks of sentencing judge and decision of Court of Criminal Appeal but not with reasons for judgment of Court of Criminal Appeal – Court of Criminal Appeal reduced respondent’s non-parole period and accepted that respondent was acting to assist her heroin-addicted son rather than as a principal for personal profit – Nature of Minister’s discretion under s 501 – Whether Minister’s decision vitiated by failure to take account of a relevant consideration – Whether Minister had an obligation to seek out up to date information – Whether Minister relied upon inaccurate and misleading material which may be characterised as irrelevant to the exercise of Minister’s discretion.

Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [

Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 (17 September 2004)
Last Updated: 17 September 2004

FEDERAL COURT OF AUSTRALIA


Minister for Immigration and Multicultural and Indigenous Affairs v Huynh

[2004] FCAFC 256


MIGRATION – Visa cancellation – Determination by Minister that respondent failed to pass the character test under s 501 of the Migration Act 1958 (Cth) on account of conviction for statutory supply of heroin – Minister exercised his discretion to cancel respondent’s resident return visa – Minister furnished by Department with remarks of sentencing judge and decision of Court of Criminal Appeal but not with reasons for judgment of Court of Criminal Appeal – Court of Criminal Appeal reduced respondent’s non-parole period and accepted that respondent was acting to assist her heroin-addicted son rather than as a principal for personal profit – Nature of Minister’s discretion under s 501 – Whether Minister’s decision vitiated by failure to take account of a relevant consideration – Whether Minister had an obligation to seek out up to date information – Whether Minister relied upon inaccurate and misleading material which may be characterised as irrelevant to the exercise of Minister’s discretion.



Migration Act 1958 (Cth) ss 4(1), 4(4), 499, 501(2), 501(6)(a), 501(7)


Akers v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 363 Dist

Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 Cons

Jahnke v Minister for Immigration & Multicultural Affairs [2001] FCA 897 Cons

Javillonar v Minister for Immigration & Multicultural Affairs [2001] FCA 854 Cited
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Cons, Dist

Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 Dist

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 Dist

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 77 ALJR 1829 Cited

Re Refugee Review Tribunal; Ex parte Aala [2000] 204 CLR 82 Refd

Ruhl v Minister for Immigration & Multicultural Affairs [2001] FCA 648 Cited

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

Tickner v Bropho (1993) 40 FCR 183 Dist

Videto v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167 Cited




MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v XUA THI HUYNH

N 2030 of 2003

WILCOX, KIEFEL and BENNETT JJ
SYDNEY
17 SEPTEMBER 2004


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2030 of 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: XUA THI HUYNH
RESPONDENT
JUDGES: WILCOX, KIEFEL and BENNETT JJ
DATE OF ORDER: 17 SEPTEMBER 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by Madgwick J on 7 November 2003 be set aside and, in lieu thereof, it be ordered that the application for relief under s 39B of the Judiciary Act 1903 (Cth) be dismissed with costs.
3. The respondent, Xua Thi Huynh, pay the costs of the appellant, the Minister for Immigration and Multicultural and Indigenous Affairs.











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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2030 of 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: XUA THI HUYNH
RESPONDENT


JUDGES: WILCOX, KIEFEL and BENNETT JJ
DATE: 17 SEPTEMBER 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT

WILCOX J:

1 This appeal, instituted by the former Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), challenges a decision of a judge of the Court (Madgwick J) in relation to an application made by the respondent, Xua Thi Huynh, pursuant to s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’).

2 The respondent had contested the legal validity of a decision by the Minister to cancel a resident return visa granted to her under the Migration Act 1958 (Cth) (‘the Act’). In making that decision, the Minister had purported to use his power under s 501(2) of the Act. That provision reads as follows:

‘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.’
3 Subsection (6)(a) of s 501 provides that a person does not pass the character test, for the purposes of s 501, if ‘the person has a substantial criminal record (as defined by subsection (7))’. Subsection (7)(c) states that a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more. It is common ground in this proceeding that the respondent has been so sentenced and, therefore, that she does not pass the character test.

The background facts

4 The relevant background facts were summarised by Madgwick J at paras 4 to 8 of his reasons. His Honour said:

‘The [respondent] was a Vietnamese national who was born on 24 April 1952 in Vietnam. She is the mother of six children in their twenties and thirties and has nine grandchildren. All of these people live in Australia. Her former husband ("the husband"), whom she married in Vietnam when she was 15 years of age, escaped with the [respondent’s] and his two eldest sons in 1978, leaving the [respondent] behind with the other four children. The husband and those two boys came to Australia in 1982 as refugees.

Soon after coming to Australia, the husband entered into a de facto relationship with another woman and thereafter took little interest in such of his family as remained in Vietnam; indeed, he provided little in the way of care for the two sons whom he had brought to Australia. The eldest son visited Vietnam in 1989 and was impressed with how hard his mother’s life was, looking after the four younger children and also her parents. He prevailed on his father to "sponsor" the rest of the family to come to Australia, which they did in 1992. The [respondent] and her husband lived together for a short period but parted for the purposes of divorce in July 1993. A couple of weeks later the [respondent] discovered that her eldest son was, and had been for some time, a confirmed heroin user. Naturally, she was much distressed by this and apparently continued to be so.

In June 1998, the [respondent] was convicted and fined for being in possession of goods reasonably suspected of having been stolen and, in May 1999, she was similarly dealt with for offences committed in August 1998 of resisting an officer in the execution of duty, being in possession of goods reasonably suspected of being stolen and of being in possession of a prohibited drug. On 24 August 1999, the [respondent] and her son were arrested and charged with supplying heroin.

On 15 March 2000, after, as Tupman DCJ put it, the matter had been before the District Court of NSW "on several occasions for mention during the course of which negotiations were conducted between the representatives for [that son] and the Crown", the son pleaded guilty to the charge against him and the [respondent] pleaded not guilty. As her Honour said:

"It was indicated to me at the time that, as a result of that combination of factors, the Crown would be entertaining an application on behalf of the prisoner’s mother to take no further proceedings in relation to the charge against her. Although, as I understand it, that has not yet been finalised, it is anticipated by all the parties that that is the course that will be taken".


Her Honour sentenced the son to a term of imprisonment of two years with a non-parole period of nine months and two days. The effect was his conditional release upon the day that Judge Tupman dealt with him.’

The criminal proceedings against the respondent
(i) The District Court

5 The anticipation mentioned by Tupman DCJ was not fulfilled. The Crown proceeded with a prosecution against the respondent. On 30 August 2000, after a trial by judge alone, Woods ADCJ found the respondent guilty of statutory supply of a prohibited drug, in that she had in her possession an amount of heroin which was not less than the ‘trafficable quantity’ of the drug.

6 As Madgwick J recounted at para 9 of his reasons:

‘She had been apprehended in a motor vehicle with a package containing thirty six "hits" of heroin encased in balloons. Police officers had observed her son apparently to supply drugs to a known addict in the street nearby and had followed him back to the vehicle. His Honour found that it was clear that the [respondent] knew what she had in her possession and the implications because, when apprehended, she tried to discard the incriminating bundle. His Honour found that she had always had a package of thirty of the thirty six balloons on her person, a smaller package having been thrown to her by her son as he was extracted from the vehicle.’

7 On 10 November 2000, Woods ADCJ sentenced the respondent. His Honour said:

‘the situation before me now is that you have been found guilty of knowingly having a quantity of heroin and the implication is that it was for sale on the street. This is clearly a very serious criminal offence, this cannot be an accident or an error of judgment. This is the deliberate involvement in the supplying of a substance into our community which is causing so much distress and danger to lives therefore anyone involved in any way in the peddling of such dangerous drugs in the streets must be dealt with by the full force of the law. There is no place in our community for anyone so involved. The courts have emphasised many times that sentences involving a substantial deterrence are to be imposed on persons supplying drugs to the community or the dissemination of drugs to the community and there would have to be exceptional circumstances for any court to consider any leniency in the sentence ...

This was not a matter of heroin for your own personal use, it was clearly for sale to persons on the street. The sanction provided by the law is imprisonment and it is now a matter of determining the term of this imprisonment.

Initially the circumstances of you [sic] are that you were involved with this with your son. However there is no real evidence as to the level of complicity of either you and [sic] your son. It is suggested that you were only assisting your son and you were not a principal. However there is no firm evidence to support either roles [sic]. Anyway whilst this is not a matter of a conspiracy or a joint enterprise you were still involved with drugs.’ (emphasis added)

8 Woods ADCJ referred to the respondent’s personal history and present situation, including certain physical and psychological problems detailed in tendered medical reports. He concluded that a sentence of two years imprisonment should be imposed on the respondent, commencing that day, with a 16 month non-parole period.

(ii) The Court of Criminal Appeal

9 The respondent appealed against the severity of this sentence, but only in relation to the non-parole period, not the head sentence. The appeal came before the Court of Criminal Appeal (Wood CJ in CL and Howie J) on 29 June 2001. In support of the appeal, the respondent tendered additional medical evidence. This dealt particularly with the impact of the respondent’s incarceration upon her psychological problems.

10 At paras 10 and 11 of his reasons for judgment, Wood CJ in CL noted some technical problems in the non-parole period selected by Woods ADCJ. He went on:

‘Having regard to these possible difficulties in the reasons for sentence, I would be minded to grant leave to appeal, and thereafter to consider the submission which has been advanced this morning concerning "special circumstances". It must be accepted that the offence was serious in that the [respondent] was involved in the deemed supply of heroin, and was actively assisting her son in that regard.

It is not the case, as distinct from the position with her son, that she was a user/dealer, but it may be accepted that she was engaged in this activity for the purpose of assisting him. He had his own problems in that regard, arising from a long-standing addiction to heroin and from the fact that the family was living in straitened circumstances with some financial commitments. The important considerations, however, which do arise concerning the [respondent], relate to her deprived and difficult background, and to the medical sequelae arising from that background, and from a motor vehicle accident in which she had been involved shortly prior to the offence.’ (emphasis added)
11 Wood CJ in CL then referred to the respondent’s personal history and the medical evidence. He concluded by proposing that the non-parole period be reduced to 12 months and that the Court direct the respondent’s release on parole at the expiration of that period. Howie J agreed and the Court so ordered. Presumably, the respondent was released from custody on 9 November 2001, the date on which the non-parole period expired.

Visa cancellation
(i) The documentary material

12 On 22 August 2002, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) wrote to the respondent stating it had come to the attention of the Department that the visa held by the respondent may be liable for cancellation under s 501 of the Act. The officer referred to an attached copy of s 501 of the Act and went on:

‘The Minister has advised that he will be personally making the decision whether to cancel your visa under subsection 501(2). This will mean that should the decision be to cancel your visa, you will not be entitled to have this decision reviewed by the Administrative Appeals Tribunal (AAT).

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 criminal history. A copy is attached for your information.

• The Judge’s comments

In reaching a decision whether to cancel the visa the Minister will 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". I have included a copy of this direction.

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 and is relevant to your circumstances.

I have attached a standard questionnaire that you may wish to use as a guide in providing your response. You may also wish to provide any further information in written form that you feel the Minister ought to be aware of and take in to account.

If you and/or anyone who wish to provide comments and information that you feel the Minister ought to be aware of and take into account, please provide them to this office by mail or facsimile no later than 16th September 2002.

If you do not respond by the above date, a decision will be made on whether your visa will be cancelled using information already held by the Department.’ (original emphasis)

13 The respondent completed the questionnaire, in which she set out the names and addresses of her children and grandchildren. She made assertions about the circumstances of her offence and her subsequent behaviour and attitude. She also provided a further medical certificate and several statements, about her family role, conduct and personality, made by relatives and friends.

(ii) The Issues Paper

14 On 19 September 2002, officers of the Department signed a document entitled ‘Issues for Consideration of Possible Cancellation of Resident Return Visa under s.501(2) of the Migration Act 1958’. The document was in the form of a Minute addressed to the Minister. I will refer to it as ‘the Issues Paper’. The Issues Paper sought the Minister’s decisions on two matters:

‘• Whether Ms Huynh passes the character test in s.501(6) of the Migration Act; and
• If not, whether her visa should be cancelled pursuant to s.501(2) of the Migration Act.’
15 Six documents were annexed to the Issues Paper. Annexure F was a full transcript of the sentencing remarks of Woods ADCJ. The annexed documents did not include the reasons for judgment of Wood CJ in CL.

16 In the Issues Paper itself, under the heading ‘Reasonable Suspicion’, there was an accurate statement of the sentence imposed on the respondent, as varied by the Court of Criminal Appeal. However, the Issues Paper incorrectly said that the Court’s order was made on 10 November 2000. This was the date on which the original sentence was imposed by Woods ADCJ.

17 The Issues Paper quoted that part of the sentencing remarks of Woods ADCJ in which his Honour described the circumstances of the offence. The Issues Paper itself made no reference to his Honour’s subsequent remarks, in which he stated ‘there is no real evidence as to the level of complicity’ of the respondent and her son, or to the question whether she was only assisting her son, rather than acting as principal. However, those remarks were, of course, contained in Annexure F.

18 Although the Issues Paper noted the decision of the Court of Criminal Appeal to reduce the non-parole period fixed in the District Court, it contained no reference to the reasons for judgment of Wood CJ in CL. In particular, the Issues Paper did not refer to the Court of Criminal Appeal’s acceptance of the submission that the respondent was engaged in drug dealing for the purpose of assisting her son; that is, that she was not a principal.

(iii) The Minister’s decision

19 On 16 October 2002, the Minister decided that he reasonably suspected that the respondent did not pass the character test and that she had not satisfied him that she passed the test. The Minister concluded that he should exercise his discretion under s 501(2) of the Act to cancel the respondent’s visa and made an order to that effect.

20 Pursuant to a request made to him by the respondent, the Minister issued a statement of reasons for his decision on 10 July 2003. In that document, the Minister said that, in making his decision, he took into account the Issues Paper, all matters referred to in it and all of the annexures to it.

The primary judge’s decision

21 The respondent’s application for relief under s 39B of the Judiciary Act came before Madgwick J on 3 November 2003. Four days later, his Honour made an order quashing the Minister’s decision of 16 October 2002 and prohibiting the present Minister and her servants and agents from carrying it into effect.

22 In his reasons for judgment, Madgwick J noted that s 501 enables the Minister to cancel a visa if the Minister has a reasonable suspicion that the visa holder is not of good character and the visa holder fails to satisfy the Minister that he or she passes the character test. At para 28 of his reasons, his Honour went on:

‘The Minister is empowered to exercise a broad discretion once that condition is satisfied. However, the nature of the condition clearly implies (what is also obvious from the subject matter and context) that the extent and degree to which the visa holder falls short of statutory good character is a prime matter for the Minister to take into account in considering how to exercise the discretion, as is the degree and extent of any hardship to the [respondent] and/or any family member lawfully resident in Australia. Where, as here, the possession of a "substantial criminal record" is the manner in which the visa holder does not pass the character test, it is necessarily the case that the circumstances surrounding the crimes concerned and the imposition of sentences for those crimes will be a highly relevant consideration. The usual main source of information is the reasons for sentence of the sentencing court.’

23 After noting the practical necessity for the Minister to depend on the officer providing the briefing papers, Madgwick J said at para 29:

‘It is therefore of great importance that such officer should obtain, read, and at least inform the Minister of the gravamen of, the reasons of the appellate court as well as of the primary sentencing judge.’

His Honour went on to note the ready availability of courts’ reasons for judgment.

24 Madgwick J thought the Minister was under a duty to inquire. At para 30, he said:

‘It is also clear, as a matter of statutory construction, which must commence with an appreciation of the context and purposes of the relevant legislation, that the Minister must make reasonable inquiry about all the circumstances of the visa holder and family members who might be affected. Where the visa is one allowing permanent residence and it is obvious, as here, that great emotional hardship would ensue to the visa holder and her family if she were deported, that will clearly affect what would be reasonable inquiry in the circumstances. It is, to my mind, inconceivable that any different intention should be ascribed to Parliament, absent the clearest express words.’

25 The essence of Madgwick J's decision was set out at paras 34 to 37 of his reasons. Those paragraphs read:

‘Here, the Minister was not informed of the appellate court’s appreciation of the matter, nor of some further, clarifying medical evidence put before the CCA. The impression that the material sent to the Minister consequently gives, under cover of that silence, is that on factual and evaluative matters the CCA had no material difference of approach from that of Judge Woods and that his Honour’s remarks were effectively the last judicial word on the [respondent’s] culpability for her crime and on mitigatory factors subjective to her. But that was not the case.

It is clear that the CCA accepted that there were three factors which mitigated, to some degree, the overall criminality exhibited by the [respondent]. These were that:

• the [respondent’s] medical condition was, in the light of the additional evidence received by the CCA, rather more serious and fraught with danger of deterioration than the primary judge had thought; and
• the [respondent] had had a background fairly described as "deprived and difficult"; [and]
• although the CCA considered it a less important factor, the [respondent] had engaged in the heroin supply not coolly for profit but for the purpose of assisting her drug-addicted son, who was himself deserving of a measure of sympathy.

The [respondent’s] crime was certainly serious. On the other hand, it would appear to involve great hardship to her and her family to banish a sick mother from the society of all of her children and grandchildren. It cannot, in my opinion, safely be said that any of the factors thought important by the CCA, let alone the combination of some or all of them, might not possibly have affected the Minister’s ultimate determination of the difficult question that he faced. The departmental submission to the Minister and the unclosed [sic] remarks on sentencing of a/Judge Woods had not recounted some material aspects of the [respondent’s] background, warranting the CCA’s description of it as deprived and difficult. The medical condition of and outlook for the [respondent], as described to and by the CCA, appeared rather more serious than the material before the Minister indicated: there were more medical conditions and the implications of the [respondent’s] psychiatric condition(s) were considerably more worrying then [sic] the Minister was ever told. The Minister acknowledged that "medical services in Vietnam are not comparable" to those in Australia. Finally, that the [respondent] had committed her crime in an auxiliary capacity to her son rather than as an equal director of the criminal enterprise could have been regarded as some reduction in the degree of her criminality which either might have tipped or helped to tip the scales in her favour.

The CCA judgment might at least, have caused the Minister to desire further inquiries. The Minister might, possibly, for example, have considered that the [respondent’s] risk of recidivism would be reduced to very little if her eldest son had been rehabilitated, a subject on which the papers before the Minister (and the CCA judgment) were silent. Again, the Minister might have been moved to find out more about the son’s relatively lenient sentence, in which case he would have been led to understand the unfortunate way in which the [respondent] and her son had, for a time, been encouraged to believe that the son’s plea of guilty might, as it were, also wipe clean the slate for his mother. That matter could possibly have weighed with the Minister on the question of hardship.’ (original emphasis)

26 Madgwick J held that it followed that the Minister failed to have regard to relevant considerations and that this amounted to jurisdictional error. On that basis, he concluded the Minister’s decision ought to be quashed and consequential relief granted.

Arguments on appeal
(i) The appellant

27 Counsel for the appellant, Mr M Wigney, identified two issues on the appeal:

‘(a) what, if any, matters the Minister is bound to take into account when considering whether to exercise his or her discretion to cancel a visa pursuant to s 501(2) of the Act on the basis that the visa holder did not pass the character test – in particular, whether the Minister is bound to take into account matters contained in a Court of Criminal Appeal judgment concerning the visa holder (in this case the respondent);
(b) whether the Minister, in considering whether to exercise his or her discretion to cancel a visa pursuant to s 501(2) of the Act on the basis that the visa holder did not pass the character test, is required to make reasonable inquiry about all of the circumstances of the respondent and family members who might be affected.’ (original emphasis)
28 Counsel submitted:

‘The ambit of the [Minister’s] discretion under s 501(2) is broad and unconfined and is not subject to any express limitations or constraints. Where a discretionary power is unconfined by the statute, the factors which may be taken into account are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors which the decision-maker may legitimately have regard to.’

29 Counsel referred to the well-known statement of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (‘Peko-Wallsend’) at 40. It may be recalled that his Honour there stated:

‘where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.’

30 As no relevant considerations are specified in s 501(2), counsel contended, ‘it is largely for the Minister, in the light of the material before him or her, to determine which matters he or she regards as relevant and their appropriate weight’. He said:

‘There can be no jurisdictional error for failing to take into account a consideration unless that consideration is one that the decision-maker is bound, as a matter of statutory construction, to take into account.’

31 Mr Wigney argued that, even if one accepts Madgwick J’s conclusion that it might reasonably have been expected that the Minister would have had regard to the circumstances surrounding the relevant crimes and sentences, the extent and degree to which the respondent fell short of statutory good character and the degree and extent of any hardship, ‘that is not to say he was bound to have regard to those matters as a matter of statutory construction’. (original emphasis)

32 Counsel went on:

‘Further, even if it could be said that the Minister was bound to take this consideration into account, it does not follow that, in considering this matter, the Minister was bound, as a matter of statutory construction, to take into account what an appeal court did or the comments made by members of the appeal court in relation to those matters. That is so particularly in circumstances where, as occurred in this case, the respondent was given the opportunity to comment and make submissions to the Minister and did not either provide a copy of the appeal court judgment to the Minister or rely on the content of that judgment in any way. The respondent had a fair opportunity to present all information she wished to present to the Minister. It was up to her to place before the Minister information or documents that she considered relevant to the exercise of the Minister’s discretion. She did place before the Minister information relating to matters referred to in the Court of Criminal Appeal judgment.’

33 In relation to the second issue, counsel argued that s 501(2) of the Act did not impose a legal obligation on the Minister to make any inquiry; nor did such a duty arise out of the circumstances in which the Minister came to exercise his discretion. He said:

‘The respondent was given every opportunity to put before the Minister anything that she considered the Minister should take into account in exercising the discretion. She did not refer the Minister to the Court of Criminal Appeal judgment, any of the evidence that was put before that court or any of the comments made by that court in determining the appeal. All of these matters were within the respondent’s own knowledge and possession. In these circumstances, no duty could be cast upon the Minister to inquire into such matters.’

34 Counsel for the appellant concluded that Madgwick J erred in finding that the Minister made a jurisdictional error in exercising the discretion to cancel the respondent’s visa; accordingly, the appeal should be allowed.

(ii) The respondent

35 Counsel for the respondent, Mr G Nicholson QC and Mr L Karp, expressed the issues in the appeal somewhat differently. They thought there were five issues:

‘(a) Is the Minister bound, in the exercise of his discretion, to consider the material in the departmental note provided to him?
(b) When the Minister relies on the departmental note, which failed to bring to his attention a relevant fact, will this failure to take that material into account lead to the consequence that the Minister will not have exercised his discretion in accordance with law?
(c) Whether the discretion of the Minister has been properly exercised in circumstances where he was not made aware of material necessarily relevant and was provided with material potentially misleading by omission.

(d) In circumstances referred to in (c) above, has the discretion of the Minister necessarily miscarried when the Minister had been denied the opportunity of attaching such weight as he may determine appropriate to the missing material.

(e) In circumstances referred to in (c) above, has the discretion of the Minister necessarily miscarried where he has determined appropriate weight to remarks on sentence in the absence of knowledge (i) that the sentence recorded as being imposed was not that imposed by the sentencing judge at first instance, but the consequence of a finding of the CCA and/or (ii) that the sentencing remarks of the judge at first instance did not reflect accurately the findings of the Court actually imposing the sentence, details of which were not provided to the Minister by the Department.’

36 Counsel for the respondent accepted that their client failed to pass the character test. On that matter, the Minister formed the only opinion open to him; no element of discretion was involved. However, they contended that once that opinion was formed, a discretion arose.

37 Counsel also accepted that a decision-maker only falls into the jurisdictional error of failing to take into account a relevant consideration where he or she is bound to take into account that consideration. The factors that the decision-maker is bound to take into account are determined by construction of the relevant statute; if these are not stated expressly, they must be determined by implication from the subject matter, scope and purpose of the relevant Act. In relation to this matter, counsel noted that the expressed object of the Act is ‘to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’: see s 4(1).

38 The written submissions of counsel for the respondent went on:

‘The discretion in s 501 and like sections (e.g. ss 501A, 501B) promotes the object of the Act (and reflects its subject matter and purpose) by permitting the cancellation of a visa in circumstances where the Minister is satisfied that the [respondent] fails the character test through inter alia past criminal conduct. That there is a discretion at all indicates that the legislature did not consider it appropriate that all those who were not citizens and who have a substantial criminal record as defined should have their visa cancelled. Questions of degree, including those of the seriousness of the visa holder’s conduct and any factors in mitigation thereof, inevitably arise. These considerations are centrally relevant to the discretion whether or not to cancel a visa, and s 501(2) assumes that these will be taken into account.

Factors logically and necessarily relevant to ascertaining the seriousness of conduct and mitigating circumstances are those taken into consideration by sentencing Courts. Indeed, unless the Minister is to conduct his own investigations and draw his own conclusions therefrom, the pronouncements of such Courts as to the facts and circumstances are the only available measure of seriousness.

In this case the comments of the sentencing judge were before the Minister. The comments and reasons of the CCA were not. Both should have been. The only sentence of imprisonment that existed was that imposed by the CCA, but the comments of that Court were, no doubt by accident rather than design, withheld from the Minister. Thus, the Minister based his decision partly upon factors which had been discarded or overruled by the final sentencing Court. Having been overruled these factors became irrelevant, whilst those which were relevant were not considered.

The sentencing remarks provided by the Department were not those attaching to the sentence as adjusted by the CCA. The unfortunate inference of the appellant’s contention that the respondent did not bring these remarks to the attention of the Minister is that unless error is detected in advance of a decision then the Minister is entitled to exercise his discretion on an inaccurate or incomplete factual basis presented by the Department by design or oversight. This is not a proper exercise of power for the purpose of the legislation.’

39 Counsel then put an additional argument which was based on the reference to ‘Judge’s comments’ in the Department’s letter of 22 August 2002: see para 12 above. They said:

‘The respondent contends that she was entitled to rely upon the term, "Judge’s comments" generally to mean that the Minister would have an accurate history of judicial comment leading to the imposition of the sentence finally imposed upon her ...

The provision of inaccurate or incomplete information resulted in the Minister being misled as to the proper and final assessment of the criminality of the respondent. What was presented to the Minister comprised the sentence pronounced by the CCA accompanied by the sentencing remarks of the judge at first instance, relevant to a different sentence fixed but not in existence at the date of the Minister’s discretion. He was given the right sentence but the wrong sentencing remarks. The respondent contends that the legislature did not and could not have countenanced reliance on information that was not only misleading and inaccurate, but should have been known to be so.’

40 Counsel for the respondent disclaimed the view that the Minister was obliged to make a reasonable inquiry about the circumstances of the respondent and affected members of her family. They said their argument was that the Minister should not have been provided with misleading information. Counsel commented:

‘An unfortunate consequence of the appellant’s argument would be to enshrine the proposition that the exercise of discretion, based on information provided by the Department which was and should have been known to be misleading, may be relied upon by an administrative decision maker unless the person whose residence is at issue can correct the error. Such an intention should not be imputed to the legislature.’

Conclusions

41 There is much common ground between the parties’ submissions. As I understand their submissions, I think both parties would support the following propositions, all of which I regard as correct:

(i) the Minister was bound in this case to form the opinion that the respondent failed to satisfy the character test. Having regard to her criminal history, no other opinion was reasonably open to him; there was no element of discretion in the Minister reaching the view that he did;
(ii) the Minister’s determination that the respondent failed to satisfy the character test enlivened his discretion to cancel her resident return visa, pursuant to s 501(2) of the Act;
(iii) in determining the appropriate exercise of that discretion, the Minister was bound to have regard to any discretionary factors expressly or implicitly identified by the Act;
(iv) in the present case, no discretionary matters were expressly or implicitly identified by the Act; and
(v) therefore, the matters to be taken into account by the Minister were those matters identified by him, being matters within the subject matter, scope and purpose of the Act.
42 As pointed out by counsel for the respondent, the object of the Act is to regulate the entry into, and presence in, Australia of non-citizens. The exclusion from Australia of non-citizens who may reasonably be regarded as undesirable residents, some of whom may be people convicted of crime, may be considered an integral part of such regulation. However, as counsel for the respondent point out, it is not the scheme of the Act that any person who has been convicted of a crime must be excluded from Australia. First, in s 501(7) of the Act, Parliament has specified the particular sentences that are capable of attracting a finding that a person has a ‘substantial criminal record’. Second, even such a finding does not necessarily lead to cancellation of the person’s visa; the Minister has a discretion as to whether or not to take that step.

43 It is plainly within the subject matter, scope and purpose of the Act that, in determining how to exercise the discretion conferred by s 501(2), the Minister should have regard to the nature of the person’s offence. This is an essential step in assessing the degree of criminality involved in the offence and, therefore, its significance as an indicator of the person’s character and the desirability or otherwise of excluding the person from Australia. However, it is for the Minister, as the statutory decision-maker, to determine what information about the circumstances of the offence – that is, on what matters and to what level of detail – he or she wishes to receive in order to exercise the relevant statutory discretion. Deane J made this point in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 378. He said:

‘In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.’

44 Moreover, in relation to matters which are to be treated as relevant, either because of an expressed or implied command in the relevant statute or the choice of the decision-maker, in the absence of a statutory indication to the contrary, the decision-maker will not usually be bound to obtain the required information from any particular source. In a case involving criminal convictions, it will, no doubt, usually be convenient for the Minister to look to material emanating from the court that dealt with the person under consideration. However, the Minister is not bound to obtain and consider court material; the Minister may choose to rely on other sources for the requisite information.

45 It follows from the above propositions that, in the present case, the Minister was not initially obliged to receive and consider the comments of Woods ADCJ or the Court of Criminal Appeal. The Minister might have decided that he did not wish to know more than that the respondent had been convicted of the statutory supply of heroin and, accordingly, that he did not wish to know anything about the circumstances of that supply, including whether the respondent was acting as a principal in the activity or merely assisting someone else. Moreover, the Minister might have chosen to obtain information, to his desired degree, from a source other than official court records. Whatever view might be taken about the desirability of those choices, none of them would have led to legal invalidity.

46 However, although it is for a decision-maker to determine, in the absence of expressed or implied statutory criteria, what matters he or she proposes to regard as relevant to the making of a particular administrative decision, it seems to me, as a matter of principle, that once the decision-maker selects a particular matter for consideration, he or she is bound to consider that matter properly. Although the relevance of that matter would arise, in that situation, from the decision-maker’s selection, rather than the command of the statute, the principle enunciated by Mason J in Peko-Wallsend at 44 would apply. His Honour said:

‘Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand ... It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.’ (emphasis added)

47 As recounted at paras 16 and 17 above, the Issues Paper that was placed before the Minister identified the respondent’s offence and contained Woods ADCJ’s description of its facts. His Honour noted that, at the time of her apprehension, the appellant was in the company of her son and that the son was involved in the criminal conduct. The remarks quoted in the Issues Paper made no reference to the question whether the appellant was only assisting her son or was a principal in the sale of heroin. However, this question was mentioned in the transcript of Woods ADCJ’s full sentencing remarks that was annexed to the Issues Paper. Woods ADCJ left open the possibility that the respondent was acting as a principal. In para 6 of his statement of reasons, the Minister said he had taken into account, inter alia, the transcript of Woods ADCJ’s full remarks.

48 Although Woods ADCJ did not make a finding as to whether or not the respondent was acting as a principal in the sale of heroin, the Court of Criminal Appeal expressed a view about that matter. Wood CJ in CL said ‘it may be accepted that she was engaged in this activity for the purpose of assisting [her son]’.

49 The essence of the respondent’s argument is that, if the Minister chooses to treat the circumstances of the offence as a relevant matter in making his decision, and to rely for that purpose on the court record, then he is bound to consider that matter properly and to have regard to any part of the court record that corrects what had gone before. The respondent’s counsel say this must include the court record of any appeal against the sentence imposed by the primary judge. They say the Minister was not entitled to base the exercise of his discretion on a record that he knew, or ought to have known, was incomplete.

50 As I have indicated, I do not believe that the Minister was initially obliged to receive and consider either Woods ADCJ’s remarks on sentence or the Court of Criminal Appeal’s reasons for judgment on appeal. If the Minister had decided to deal with the matter on the basis simply of the respondent’s recorded criminal history, no other material being placed before him by either the Department or the respondent, that decision would not have led to invalidity of his decision. However, the Minister here chose to consider the facts to a particular level of detail and to be guided in that task by the court record, including the remarks made by the sentencing judge. Having made that choice, it seems to me he was bound to consider all aspects of the court record that might bear upon his assessment of the respondent’s degree of criminality and, in particular, any material that corrected or elucidated the sentencing judge’s remarks. The Minister was made aware that the Court of Criminal Appeal had reviewed the sentence imposed by Woods ADCJ, and reduced the non-parole period. He would have realised there was a strong probability that the Court of Criminal Appeal expressed reasons for its decision and that these reasons might bear upon the respondent’s degree of criminality. Yet he failed to obtain, or take into account, those reasons.

51 The situation in the present case may be likened to that discussed in Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 (‘Videto’). In that case, the Minister had decided to deport the applicant. He did so in ignorance of the fact that the applicant had a 12 year old son in Australia, although this was known to two departmental officers concerned with the case. In upholding a submission that the Minister had failed to take a relevant consideration into account in the exercise of a power, within the meaning of s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (as it then stood), Toohey J said at pp 178-179:

‘As a broad proposition, I do not think that the Act imposes an obligation on a decision-maker to initiate inquiries ... But much will depend upon the nature of the material before the decision-maker, the importance of the decision to be made and its consequences for the person to whom the decision relates. In this regard I confine my comments to a decision that a prohibited non-citizen be deported. In such a case it may be that the material placed before the Minister or his delegate contains some obvious omission or obscurity that needs to be resolved before a decision is made. This is more likely to be the case where the person concerned has not had the benefit of any advice. If an officer of the Department withholds information from the Minister or his delegate, it is no answer to a complaint that the decision-maker failed to take into account a relevant consideration to say that the matter was not before him. That information was constructively before him. And, in my view, if an officer of the Department, albeit innocently, dissuades or discourages a person from giving information that is relevant to the decision to be made, it is no answer to a complaint in terms of s 5(2)(e) to say that the decision-maker did not have the matter before him. It was nevertheless a relevant consideration. Clearly much will depend upon the circumstances of each particular case.’

52 The present case is similar to Videto in terms of the importance of the decision to be made and its consequences for the person to whom the decision relates. It is also a case where, it seems, the person did not have the benefit of legal advice. It is not clear whether the departmental officers concerned with preparation of the Issues Paper were aware of the reasons expressed by the Court of Criminal Appeal but they must have known, or at least expected, that reasons had been given and that they might cast light on a consideration they were inviting the Minister to take into account: the circumstances surrounding the respondent’s criminal office. Under those circumstances, if they did not have a transcript of the Court of Criminal Appeal’s reasons, they ought to have obtained it, and included a copy in the documents annexed to the Issues Paper. Their failure to take this step was no doubt an innocent oversight, but it has had the effect of causing the Minister to fail properly to give consideration to an issue that he himself has determined to be relevant to the making of his decision under s 501(2) of the Act.

53 I have considered the possibility that the Minister’s failure to consider the reasons for judgment of the Court of Criminal Appeal would not have affected the outcome of his deliberations. It may not have done so, but I cannot be sure about that.

54 The possibility might be argued on either of two bases: first, that Wood CJ in CL was doing no more than making an assumption in the respondent’s favour, rather than stating a finding derived from his consideration of the evidence; second, that, having regard to the Minister’s views about heroin trafficking, it would have made no difference to the result even if the Minister had known the respondent was merely assisting her heroin-using son.

55 I do not think it can safely be concluded that Wood CJ in CL was merely making an assumption when he said ‘it may be accepted that she was engaged in this activity for the purpose of assisting’ her son. Although context is always important, a judge who uses the word ‘accepted’, without qualification and in relation to a factual matter, is usually accepting the factual correctness of the proposition, based upon consideration of the relevant evidence. No doubt Wood CJ in CL had before him a transcript of the proceedings before Woods ADCJ. He may well have been prepared to draw an inference from that material that Woods ADCJ failed to draw.

56 In relation to the second matter, as Madgwick J pointed out, although the respondent’s crime was ‘certainly serious’, her removal from Australia would appear to involve great hardship to both herself and her family. I agree with his Honour that it ‘cannot ... safely be said that any of the factors thought important by the [Court of Criminal Appeal], let alone the combination of some or all of them, might not possibly have affected the Minister’s ultimate determination of the difficult question that he faced’ (original emphasis). Although the sale of heroin must always be regarded as a serious crime, for all I know the Minister, in using that crime as an indicator of character, might have been prepared to draw a distinction between the case of a person acting to assist an addicted son and that of a person acting as a principal for personal profit. I cannot know this because, although the Court of Criminal Appeal judgments indicated that the respondent’s case should be regarded as falling within the former category, the material considered by the Minister did not do this.

57 With respect to him, I do not agree with all the reasons expressed by Madgwick J. However, on the narrow basis explained above, I think the orders made by his Honour were correct.

58 I find it unnecessary to deal with the respondent’s argument (see para 39 above) about the reference to ‘Judge’s comments’ in the Department’s letter of 22 August 2002.

59 In my opinion, the appeal should be dismissed with costs.


I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.


Associate:

Dated: 17 September 2004




IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2030 OF 2003


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


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: XUA THI HUYNH
RESPONDENT


JUDGES: WILCOX, KIEFEL AND BENNETT JJ
DATE: 17 SEPTEMBER 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT


KIEFEL and BENNETT JJ:

60 The question on this appeal is whether the reasons given by the New South Wales Court of Criminal Appeal, in reducing the non-parole period of the respondent’s sentence, were matters which the Minister was obliged to take into account in considering whether the respondent’s visa should be cancelled.

THE STATUTORY PROVISION

61 Section 501(2) of the Migration Act 1958 (Cth) (‘the Act’) provides:

‘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.’
62 A person does not pass the character test for the purposes of s 501 if they have a substantial criminal record: s 501(6)(a). A substantial criminal record is defined to include a sentence to a term of imprisonment of twelve months or more: subs (7). The section goes on to provide for what may be taken into account as a sentence to a term of imprisonment and for other circumstances, in addition to the possession of a substantial criminal record, which may result in a person not passing the character test.

63 The respondent was sentenced to twelve months imprisonment for the offence of supplying a prohibited drug in an indictable quantity. The drug in question was heroin. Her son was her co-offender. There is no dispute that she failed the character test on account of this conviction. The question which then arose for the Minister was whether the respondent’s visa should be cancelled, in the exercise of his discretion.

REMARKS ON SENTENCING AND ON APPEAL

64 The sentencing judge said this of the respondent’s level of complicity in the crime:

‘Initially the circumstances of you are that you were involved with this with your son. However there is no real evidence as to the level of complicity of either you and your son. It is suggested that you were only assisting your son and you were not a principal. However there is no firm evidence to support either roles. Anyway whilst this is not a matter of a conspiracy or a joint enterprise you were still involved with drugs.’
65 His Honour then went on to deal with the respondent’s history and present personal circumstances, including some medical evidence which did not appear to be current. On 10 November 2000 his Honour sentenced the respondent to 2 years imprisonment with a non-parole period of sixteen months.

66 On 29 June 2001 the Court of Criminal Appeal reduced the non-parole period to twelve months and directed the respondent’s release at the expiration of that period. There was no challenge to the term of the sentence. In the judgment of Wood CJ at CL there were matters which constituted special circumstances which made it appropriate to adjust the ratio between the non-parole period and the term of the sentence. After saying that the Court would consider whether there were ‘special circumstances’ his Honour went on:

‘It must be accepted that the offence was serious in that the applicant was involved in the deemed supply of heroin, and was actively assisting her son in that regard.

It is not the case, as distinct from the position with her son, that she was a user/dealer, but it may be accepted that she was engaged in this activity for the purpose of assisting him. He had his own problems in that regard, arising from a long-standing addiction to heroin and from the fact that the family was living in straitened circumstances with some financial commitments. The important considerations, however, which do arise concerning the applicant, relate to her deprived and difficult background, and to the medical sequelae arising from that background, and from a motor vehicle accident in which she had been involved shortly prior to the offence.’

67 His Honour then went on to deal with further medical evidence which had not been before the sentencing judge. The evidence suggested that the respondent was particularly vulnerable to the impact of being in custody and that her health could be further compromised as a result of her remaining in custody. For that reason the Court of Criminal Appeal reduced the non-parole period.

THE DECISION TO CANCEL

68 The issues paper provided to the Minister, for his decision as to whether to cancel the respondent’s visa, referred to the sentences which had been imposed, including the variation made by the Court of Criminal Appeal. It set out the sentencing judge’s observations on the facts relating to the offence, to the seriousness of the offence and her history. It did not contain the passage from the Court of Criminal Appeal dealing with the level of her complicity to which we have referred above. The respondent however herself had made a submission, which it recorded, that she believed she had done nothing wrong by following her son to look after him, having no knowledge of what was to happen.

69 In his statement of reasons for his decision to cancel the respondent’s visa the Minister referred to the fact that the non-parole period had been reduced to twelve months at appeal but went on to say that ‘this offence constitutes a crime that I consider to be very serious under paragraph 2.6 of the Direction ...’. The direction there referred to is the ‘Direction under section 499 - Visa refusal and cancellation under section 501 of the Migration Act 1958’. The Minister considered the respondent’s other offences and expressly stated that he took into account the sentencing judge’s remarks relating to the seriousness of the offence, amongst other things.

THE PRIMARY JUDGE’S REASONING

70 His Honour the primary judge considered that the nature of the condition which enables the Minister to cancel the visa clearly implies that the extent to which the visa holder falls short of statutory good character is of prime importance. Where the possession of a criminal record is the reason why the visa holder does not pass the character test, the circumstances surrounding the crimes concerned and the imposition of sentences for those crimes will be ‘highly relevant’ considerations. The usual source of the latter is the sentencing remarks. It was of great importance that the Minister be informed of those of the appellate court as well as those of the sentencing judge, his Honour held. The Minister should consider any ‘further pertinent information’ which the appellate court’s reasons might disclose. Such a judgment may itself be a relevant consideration or it may refer the Minister to relevant considerations, his Honour reasoned. In his Honour’s view there were three factors which could be gleaned from the reasons of the Court of Criminal Appeal which mitigated, to some degree, the ‘overall criminality’ exhibited by the respondent: her medical condition was more serious than had been realised; she had had a deprived and difficult background; and she may be seen to have been assisting her son. These factors may have affected the Minister’s decision if he had known of them, his Honour considered. It followed that the Minister failed to have regard to relevant considerations.

THE APPEAL

• Whether a relevant consideration

71 With respect to his Honour, the fact of possession of a criminal record, the reason why a person does not pass the character test, does not of itself render the circumstances surrounding the offences committed, and the reasons for the sentences imposed for them, relevant considerations to the exercise of the Minister’s discretion. A relevant consideration in an administrative law sense has a limited meaning. It is one which the decision-maker is bound to take into account in making the decision in question. The factors which the decision maker is bound to take into account are determined by the construction of the statute conferring the discretion. If they are not stated, they are to be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (‘Peko-Wallsend’) at 39-40 per Mason J.

72 The Act does not state what factors the Minister is bound to consider in determining whether or not to cancel a person’s visa. The nature of the Minister’s discretion under s 501 of the Act has been considered in a series of cases concerning the validity of Ministerial directions made under s 499 of the Act. In Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 Dowsett J described s 501 as conferring an ‘unfettered discretion’ upon the Minister (at [10]). His Honour went on to explain (at [24]):

‘Section 501 prescribes failure to satisfy the character test as a condition precedent to the exercise of the discretion to refuse or cancel. It does not create any presumption as to the way in which that discretion should be exercised.’
73 This description of the discretion has been cited with approval in subsequent decisions, by Cooper J in Ruhl v Minister for Immigration & Multicultural Affairs [2001] FCA 648 and Stone J in Javillonar v Minister for Immigration & Multicultural Affairs [2001] FCA 854. And in Jahnke v Minister for Immigration & Multicultural Affairs [2001] FCA 897 Drummond J observed that although the discretion is not fettered by any express limitation, it must nevertheless be exercised by reference to considerations identified from the subject-matter, scope and purpose of the statute (at [17]).

74 A reference to those matters confirms the breadth of the Minister’s discretion. The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object provision is made for the removal or deportation from Australia of non-citizens whose presence is not permitted by the Act: s 4(4). If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501.

75 His Honour the primary judge’s approach, in our respectful view, seeks to import into the character test considerations not required by the Act and then merges that test with the discretion to be exercised by the Minister. Consideration of matters surrounding the offences the subject of the criminal record is not relevant to a decision whether a visa holder passes the character test, in the circumstance where they hold a substantial criminal record as defined. It follows as a matter of course. Even if it were relevant, the question as to whether they pass the character test has been answered at the point where the Minister may exercise the discretion given by the section.

76 The remarks of the sentencing judge and of the Court of Criminal Appeal as to the extent of the respondent’s involvement in the drug offence in question only become necessary to the Minister’s consideration if there is some obligation, on the Minister’s part, to take that matter into account in each case. No such obligation arises from s 501. Nor, in our view, can it be said that there is some general obligation to take account of what is said by the Courts on these occasions. It is for the Minister to determine, in the exercise of the discretion given by the section, whether they assume importance in a particular case. It follows in our view that neither the topic referred to by his Honour the primary judge nor what the Courts had to say about it can be regarded as relevant considerations in an administrative law sense.

• Up to date information

77 The reasoning of the primary judge also implies that there is an obligation to seek out further material if the Minister has embarked upon a consideration of the topic of sentencing. It was clearly his Honour’s view that because the Minister took account of the sentencing judge’s remarks he became obliged to take account of those of the Court of Criminal Appeal.

78 In Peko-Wallsend Mason J held that it may be implied in nearly every statute conferring power to make an administrative decision that the decision is to be made on the basis of the most current material available to the decision-maker (at 45). In our view a proper understanding of his Honour’s statement requires consideration of the circumstances of that case and the statutory context. In that case the relevant statute required the Minister, in considering whether a grant of land should be made, to take into account the detriment which might be caused to persons if the claim was acceded to. There was information, in addition to that provided by the Aboriginal Land Commissioner, on the departmental file. It was relevant to the question of detriment and corrected an omission in the Commissioner’s report. His Honour said (at 44):

‘Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand.’

79 His Honour went on (at 45):

‘In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.’
80 Two observations may be made about his Honour’s reasoning. The factor being considered, to which the material is relevant, must be essential to the exercise of the discretion before any obligation to examine the most recent and accurate information can arise. That is to say it must partake of the nature of a relevant consideration in the sense we have discussed. And, as was elsewhere pointed out in Peko-Wallsend (at 31 and 45), the Minister was taken to have constructive knowledge of the information because it was on the departmental file (see also Videto v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167 at 179). Neither of those factors is present here. The Minister cannot be taken to have knowledge of the appellate court’s reasons. In any event, a consideration of remarks upon sentencing could not be said to be essential to the Minister’s exercise of discretion. The fact that he chooses to refer to them does not convert them to relevant considerations in the administrative law sense from which other consequences might flow. That is determined by reference to the statute.

81 There are some decisions of this Court dealing with the need to refer to additional information which were referred to, in passing, by McHugh J in Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 321, although the issue before his Honour concerned the need for further inquiry in the context of a consideration rendered relevant by the statute. That is not the context of these other cases. In Tickner v Bropho (1993) 40 FCR 183 at 198 Black CJ held that there may be an improper exercise of power if there is material known to be readily available which is likely to be of critical importance in the decision and it is not utilised. And in Akers v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 363 the decision-maker was treated as having proceeded to reach the decision misapprehending the facts material to it. Accepting, for present purposes, that there were correct characterisations of jurisdictional error in these cases, neither applies in the present case. The remarks of the Court of Criminal Appeal were in no way critical to the Minister’s decision and they did not stand as some important omission.

82 We add, although it is not necessary to our reasoning to do so, that the respondent’s argument and his Honour’s reasoning contain a critical factual flaw. If one accepts, contrary to the opinion we have expressed, that it is permissible to treat as a relevant consideration, or as a matter critical to the Minister’s decision, the topics identified by the Minister it is necessary to be accurate about what the Minister did treat as relevant. In the present case it was not the topic of sentencing generally, nor was it the part the respondent had played in the commission of the offences. The matter which the Minister selected as relevant was the nature of the offence itself upon which the sentencing judge had made the obvious remark that it was ‘serious’. No further information was necessary to qualify that fact and the Court of Criminal Appeal made no comment to the contrary.

• Whether material misleading and irrelevant

83 The respondent’s alternative argument was that the Minister relied upon inaccurate and misleading material which may be characterised as irrelevant to the exercise of the discretion under s 501. The material referred to is the sentencing judge’s remarks and they are said to be inaccurate or misleading because the Court of Criminal Appeal’s comments were not also read. This suggests that the appellate court’s comments contained some qualification or correction of the sentencing judge’s remarks.

84 The sentencing judge’s remarks themselves could not be said to be irrelevant, and we do not understand the respondent to so contend. The relevant part of the reasons of the Court of Criminal Appeal could not be said to have altered or clarified the sentencing judge’s remarks, nor could it be said to be ‘fresh’ material which would have favoured the respondent in the Minister’s assessment: see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 77 ALJR 1829 at 1834, par [24]. Nothing said by the appellate court affected the sentencing judge’s remarks. It did not provide any further information concerning the ‘overall criminality’ of the offence, assuming for present purposes that this was a topic in which the Minister was interested. The only matter, of the three identified by his Honour the primary judge, which related to that topic was the issue of the respondent’s level of involvement in the offence and in particular whether her role was that of assisting her son. The sentencing judge had said that the evidence did not permit a conclusion to be drawn about it. The Court of Criminal Appeal simply assumed the fact that she was assisting her son in her favour, but did not regard that as a matter of importance to the question before it. The important factor for it was the effect of incarceration upon her. The assumption would not seem to us to add to the sentencing judge’s remarks.

85 The submission that the information was misleading contained references to the fact that the respondent was entitled to rely upon the reference in the letter notifying her of the Minister’s intention to consider cancelling her visa to ‘Judge’s comments’ to mean that the Minister would have a complete and accurate history of judicial comment concerning her. Reference was also made in submissions to Re Refugee Review Tribunal; Ex parte Aala [2000] 204 CLR 82, which concerned a person being led, mistakenly, to believe that a state of affairs, relevant to how he might choose to conduct his case, existed. In such a case procedural fairness might be said to have been denied. To similar effect are the decisions in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601. There was no evidence before his Honour the primary judge concerning the respondent’s state of mind and no ground for review based upon a denial of procedural fairness such as arose in Muin and Lie and his Honour made no such finding. His Honour simply noted a submission that the respondent had been denied the opportunity to put the additional materials before the Minister and the Minister’s counter submission that there was no evidence as to what she would have done had she in fact been misled. That submission is clearly correct. We did not understand the submissions from the respondent to assert a different factual position and there would clearly be no basis for doing so. Rather, the references to the missing material were used to give colour to a submission about the misleading nature of the material relied upon by the Minister.

CONCLUSION

86 In our view the appeal should be allowed, the decision of his Honour the primary judge set aside and in lieu it be ordered that the respondent’s application for review be dismissed with costs. The respondent should pay the appellant’s costs of the appeal.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel and Bennett.




Associate:

Date: 17 September 2004



Counsel for the Appellant: Mr M Wigney



Solicitor for the Appellant: Australian Government Solicitor



Counsel for the Respondent: Mr G Nicholson QC and Mr L Karp



Solicitor for the Respondent: Anne O’Donoghue & Associates



Date of Hearing: 12 May 2004



Date of Judgment: 17 September 2004




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