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MIGRATION Ė cancellation of visa Ė alleged failure to give reasons for cancellation Ė whether failure to give reasons infected decision with jurisdictional error Ė whether Wednesbury unreasonableness shown Ė whether denial of procedural fairness Ė whether failure to consider interests of the child

Minister for Immigration and Multicultural and Indigenous Affairs v Griffit

Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths [2004] FCAFC 22 (13 February 2004)
Last Updated: 16 February 2004

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths
[2004] FCAFC 22




MIGRATION Ė cancellation of visa Ė alleged failure to give reasons for cancellation Ė whether failure to give reasons infected decision with jurisdictional error Ė whether Wednesbury unreasonableness shown Ė whether denial of procedural fairness Ė whether failure to consider interests of the child


Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 501 and 501G


Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 201 ALR 327 applied
Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 applied

















MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v ELTON MICHAEL DAVID GRIFFITHS
V 538 of 2003

BLACK CJ, DOWSETT AND JACOBSON JJ
13 FEBRUARY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 538 of 2003


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: ELTON MICHAEL DAVID GRIFFITHS
RESPONDENT
JUDGES: BLACK CJ, DOWSETT & JACOBSON JJ
DATE OF ORDER: 13 FEBRUARY 2004
WHERE MADE: MELBOURNE


THE COURT ORDERS THAT:


1. The appeal be allowed.
2. The orders of Federal Magistrate McInnis made on 20 June 2003 be set aside.
3. In lieu thereof, it be ordered that the respondentís application to the Federal Magistrates Court be dismissed.
4. The respondent pay the appellantís 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

VICTORIA DISTRICT REGISTRY V 538 of 2003


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: ELTON MICHAEL DAVID GRIFFITHS
RESPONDENT


JUDGES: BLACK CJ, DOWSETT & JACOBSON JJ
DATE: 13 FEBRUARY 2004
PLACE: MELBOURNE


REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal by the Minister from a decision of a Federal Magistrate quashing a decision made by the Minister on 26 August 2002 exercising his discretion under s 501(2) of the Migration Act 1958 (Cth) ("the Act") to cancel the Respondentís visa.

2 The respondent is a New Zealand citizen who entered Australia in 1982 when he was eight years old. He was approximately 28 years of age at the time of the Ministerís decision. Apart from a short period of absence when he returned to New Zealand as a child, he has spent most of his life in Australia. At the time of the Ministerís decision, the respondent held a special category (Temporary) (Class TY) (subclass 444) (Special Category) visa.

3 Almost all of the respondentís family reside in Australia. He is not married but has a de facto spouse who was expecting their first child at the time of the decision to cancel his visa. The child has since been born. His parents, sister, brother and extended family on his motherís side reside in Australia. His father has recently been diagnosed with a serious form of motor neuron disease. The effect of the decision to cancel his visa is that he would be permanently excluded under Australian law from ever returning here.

4 Notice of intention to cancel the respondentís visa was given on 4 March 2001. The notice stated that the ground on which the visa may be liable to cancellation was contained in s 501(6)(a) of the Act. That subsection provides that a person does not pass the character test if he or she has a substantial criminal record. A person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more: see s 501(7)(c). It is not in issue that the respondent had such a record. He had been sentenced on three separate occasions in 1995, 1997 and 2001 to terms of imprisonment for 12 months or more.

5 In his response to the notice of intention to cancel the visa the respondent did not challenge the particulars of his criminal record. He commented about the seriousness of the offences and the question of mitigating circumstances by pointing out that although the number of the charges made his criminal history look serious, they were not as serious as they appeared because they all related to property offences. He said that all of the offences had been committed to buy drugs. In a letter written by his legal representative on 13 December 2001 it was said that all of the offences arose as a result of the respondentís drug addiction but that he had subsequently completed a drug rehabilitation and relapse prevention course.

6 In about July 2002, a document entitled "Consideration of Liability for Cancellation of a Special Category Visa under s 501(2) of the Migration Act" was prepared by officers of the Department for the Ministerís decision. This document was in effect an issues paper of a type commonly submitted to the Minister for consideration of the various matters to be taken into account by the Minister in his decision whether or not to exercise the discretion to cancel the visa.

7 It is unnecessary for the purpose of determining this appeal to set out in any detail the various issues which were recorded and commented upon in the issues paper. It is sufficient to say that they included the respondentís criminal history, comments about the likelihood of his conduct being repeated, the public interest in general deterrence, the fact that the respondentís de facto spouse was expecting a child and the degree of hardship to the respondent as a potential removee from Australia.

8 Although the issues paper stated that the respondent did not have any children and that the question of the best interests of the children did not apply, the issue of the interests of the unborn child was dealt with under a separate sub-heading, namely that of the interests of the de facto spouse. The issues paper pointed out that the spouse had been interviewed and had indicated that she would join the respondent in New Zealand if he were removed from Australia. There was reference to the hardship which the child would suffer if his or her parents have to live in New Zealand rather than in Australia.

9 The issues paper concluded with a statement by the Minister that he had considered all relevant matters including an assessment of the character test as defined by
s 501(6) of the Act. Three possible alternative decisions were ruled out and the Minister stated that he reasonably suspected that the respondent did not pass the character test, that he had not satisfied the Minister that he did pass the test and that the Minister had decided to exercise his discretion under s 501(2) of the Act to cancel the visa.

10 On 16 September 2002, the respondent sought judicial review of the Ministerís decision in the Federal Court under s 39B of the Judiciary Act 1903 (Cth). Shortly afterward the matter was transferred to the Federal Magistrateís Court. No point was taken before us that the Magistrate did not have power to grant prerogative relief.

11 The Federal Magistrateís reasons for decision disclose four separate but related bases for his decision to quash the Ministerís decision to cancel the visa. These may be stated shortly.

12 The first was that the Minister had given no reasons for his decision to cancel the visa. The effect of what the learned Magistrate said at [106] of his reasons was that since
s 501G(1)(e) required the Minister to state reasons for the decision, a failure to do so constituted a breach of the rules of natural justice which amounted to jurisdictional error.

13 The second was that the Minister had "not considered properly the interests of the unborn child in the present case": see [108] of the Magistrateís decision.

14 The third was that in the absence of reasons, the decision to cancel the respondentís visa involved an absurd outcome when the circumstances were that he had resided in Australia since he was eight years of age, all his family except one aunt lived in Australia, including his pregnant de facto wife, he had apparently become rehabilitated since he had served his last custodial sentence and he had never previously been warned about the risk of his visa being cancelled. The Federal Magistrate found that in these circumstances the decision was so unreasonable as to attract the principle of Wednesbury unreasonableness; see [109] to [111] of the decision.

15 The fourth was that the manner in which the issues paper dealt with the question of the respondentís unborn child - not under the heading of the ĎBest Interests of the Childrení but under the heading of ĎOther Considerationsí - amounted to such a failure to understand the claim as to involve a constructive failure to exercise jurisdiction; see [118] of the decision. The Federal Magistrate also made reference to the decisions of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 and Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 195 ALR 502, but it was not suggested that his decision ultimately turned on any question of legitimate expectation.

16 Only the first and third grounds identified by the learned Magistrate were relied upon in the respondentís oral submissions to support the Federal Magistrateís decision. One issue referred to by the Magistrate as going to the question of Wednesbury unreasonableness was the failure of the Minister to give any warning to the respondent prior to his most recent conviction that a continuation of his criminal conduct would enliven the Ministerís power to cancel the visa. This issue was not pursued in oral submissions but we will deal with it below.

17 The substance of the appellantís submissions can be stated quite simply. Senior counsel submitted that the application in the present proceedings was on all fours with the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 201 ALR 327 ("Palme") and that, accordingly, the Federal Magistrateís decision was contrary to that of the High Court, albeit that the High Courtís decision was handed down approximately four months after the decision in the present proceeding. He submitted that, to the extent that the procedural unfairness and the Wednesbury unreasonableness ground were based on a failure of the Minister to deliver reasons, that finding was contrary to what the majority of the Court said in Palme.

18 In our view, the present proceedings are indistinguishable from Palme. True it is that it may be said that the offence in Palme was objectively more serious than the offences committed here. But once it is conceded that the character test is not met, the characterisation of the seriousness of the conduct and the question whether the Minister should cancel the visa is a matter for the Minister, in the exercise of his of her discretion. Of course, before arriving at the decision the Minister must accord procedural fairness to the person whose visa is under consideration.

19 The respondentís counsel submitted that here the Minister had purported to give reasons in the issues paper which were "ineffective" as reasons because they did not satisfy
s 501G(1)(e) of the Act. It was therefore submitted that this in some way distinguished the matter from Palme in which, the respondent contended, no claim was made that the issues paper constituted the reasons for the Ministerís decision. According to the respondent, the argument in Palme was simply that the failure to give reasons was a breach of the requirements of natural justice, whereas in this case the giving of "ineffective reasons" was both a breach of those requirements and permitted the Court to look into the reasonableness of the decision. We do not consider such a distinction to be sustainable.

20 The Federal Magistrateís decision proceeded on the basis that the issues paper did not constitute a statement of reasons as required by s 501G(1)(e). The Ministerís counsel did not challenge that finding on appeal and the respondent sought to uphold the Magistrateís finding (although at no stage did the respondent seek any reasons). The respondent cannot at one and the same time rely upon the Ministerís failure to give reasons and upon the Ministerís giving of "ineffective reasons". Either the Minister gave reasons, which can be challenged, or the Minister failed to give reasons and can be compelled (in appropriate proceedings for that purpose) to fulfil his statutory duty to do so. The appeal, therefore, turns on the respondentís submission that the absence of reasons in this case permitted the learned Magistrate to make the finding he did.

21 The High Courtís decision in Palme makes it plain that the submission cannot be accepted. As Gleeson CJ, Gummow and Heydon JJ said at [48], a visa cancellation decision may be reviewed for jurisdictional error and the error may be found in what is disclosed in the reasons provided under s 501G(1)(e). But as their Honours also observed at [48], what is not provided for is for a person whose visa has been cancelled to refrain from seeking to compel the Minister to produce reasons by the issue of a writ of mandamus and also to seek to impeach the visa cancellation decision itself as a consequence of the failure to discharge the duty to provide reasons.

22 McHugh Jís observations at [55] and [57] were to precisely the same effect.

23 So too in Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 ("Tuncok"), a decision of Hely J delivered after the judgment of the High Court in Palme, his Honour rejected the submission that a failure to give reasons is a breach of natural justice which vitiates the decision. His Honour stated at [54] that he disagreed with the contrary view expressed by the learned Federal Magistrate in the present case.

24 It also follows from what the High Court said in Palme that the Federal Magistrateís finding, that in the absence of reasons there was an absurd outcome which attracted the principle of Wednesbury unreasonableness, cannot be supported.

25 The respondent argued that the Wednesbury principle applied here nonetheless because the case against cancellation of the visa as outlined in the issues paper was so strong that a contrary view was manifestly unreasonable.

26 It may be accepted that the case against cancellation was, objectively speaking, strong. But it does not of course follow that the conclusion that the visa should be cancelled was not reasonably open. The respondentís submission to the contrary likewise cannot stand consistently with what the High Court said in Palme.

27 The position here equates with that considered by Gleeson CJ, Gummow and Heydon JJ at [30]. In this case, the Minister had before him relevant material presented in the issues paper in an apparently balanced manner. The degree of hardship to the respondent was specifically dealt with at paras [53] and [54] of the issues paper and the hardship to the respondentís then unborn child was dealt with at paras [71] and [72]. As Gleeson CJ, Gummow and Heydon JJ said at [30], there is no weight in the complaint that in acting on the submission to cancel the visa, the Minister reached a decision which was so unreasonable as to attract the Wednesbury doctrine.

28 Moreover, to adapt what their Honours said in the circumstances of Palme at [39], given the detail supplied in the issues paper and the Ministerís statement which, as here, was not challenged, that he had considered all relevant matters, it cannot be said that the Ministerís decision was tainted.

29 McHugh Jís observations on this issue at [62] were to the same effect. His Honour said that the matters mentioned in the issues paper might have caused the Minister to refuse to cancel the visa but they were not so overpowering that the decision was unreasonable.

30 Also, as Hely J said in Tuncok at [70], in this case too, the view that the visa should not be cancelled was not the only view which was rationally available. His Honour stated at [70] that he did not agree with the contrary conclusion on Wednesbury unreasonableness reached by the Federal Magistrate in the present case.

31 The issues paper referred at para [46] to the fact that the appellant had not been given a previous warning that his visa would be liable to cancellation. The Ministerís decision to cancel the visa notwithstanding the absence of a warning about continued criminal conduct cannot attract the operation of the Wednesbury principle.

32 Although the respondent did not seek to support the second and fourth bases on which the Federal Magistrateís decision turned in his oral submissions, we will deal with them briefly. Both of them rested on the proposition that the failure to deal with the interests of the unborn child under the heading that dealt specifically with the ĎBest Interests of the Childrení in the issues paper gave rise to jurisdictional error. But the short answer to this proposition is that this issue was dealt with elsewhere in the issues paper, in particular at paras [71] and [72] under the sub-heading dealing with the interests of the de facto spouse and there is, in any case, no reason to suppose that it was not considered by the Minister.

33 It follows that the appeal should be allowed. The orders of the Court will be as set out in paragraph 3 of the Notice of Appeal.


I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Black CJ, Dowsett and Jacobson JJ.



Associate:

Date: 13 February 2004



Counsel for the Appellant: A Cavanough QC and W Mosley



Solicitor for the Appellant: Australian Government Solicitor



Counsel for the Respondent: T Hurley



Solicitor for the Respondent: Armstrong Ross



Date of Hearing: 9 February 2004



Date of Judgment: 13 February 2004
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