Re Tevita Kaufusi and Meleane Fatafehi Kaufusi v Minister of Immigration and Ethnic Affairs [1986] FCA 38 (21 February 1986)

FEDERAL COURT OF AUSTRALIA

Re: TEVITA KAUFUSI and MELEANE FATAFEHI KAUFUSI
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. V G165 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.

CATCHWORDS

Administrative Law - review of decisions to refuse entry permits and to order deportation - whether failure to accord procedural fairness - whether material before decision-maker was such as to require him to afford the applicants an opportunity to respond to it, beyond that already given.

HEARING

MELBOURNE
21:2:1986

DECISION

An application was filed on 17 July, 1985 for an order to review, under the Administrative Decisions (Judicial Review) Act (the Judicial Review Act) decisions made by the respondent Minister on 18 June, 1985. The application described them as decisions :-

"(a) Refusing the application of the applicants

that they be granted temporary entry permits
and resident status (permanent entry permits)
within the meaning of Section 6A of the
Migration Act 1958.

. . .

(e) That the applicants be deported from
Australia."

The application was not pursued in so far as it purported to review decisions (b), (c), (d) and (f).

2. An order staying the operation of deportation orders was made on 17 July, 1985 by C.A. Sweeney J.. On 30 September, 1985 Smithers J. dismissed a motion seeking the discharge of that order. The hearing of the substantive application began on Thursday 19 December, 1985 - the day after the delivery of judgment by the Full High Court in Kioa & ors. v West & anor.. Mr. Vickery of counsel, on behalf of the applicants, said that, as a result of the High Court's judgment, certain arguments in support of certain grounds would not be pursued.

3. Under s. 13 of the Judicial Review Act the respondent on 18 July, 1985 furnished reasons for his decision to order the deportation of the two applicants. Those reasons were in the following terms :-

"I based by decision on the attached Submission
from John Stankevicius dated 11 June 1985 and the
annexures thereto.

I adopted the findings at Part A of that Submission
as my findings on material questions of fact.

I accepted these findings of fact on the evidence
before me as set out in Part B of that Submission.

I adopted the reasoning set out in the assessment
at Part C of that Submission and that sets out the
reasons for my decision."

It will be noted that the decision was based upon a departmental submission, dated 11 June, 1985, and adopted both the findings on material questions of fact and the reasoning contained in that submission; accordingly, those matters will be referred to in these reasons for judgment as the respondent's findings and the respondent's reasons respectively.

4. In essence the ground upon which the Minister's decisions are now challenged is that the respondent failed to accord "procedural fairness" to the two applicants, in failing to give to them an opportunity to reply to certain matters referred to in the decisions or in the material upon which the decisions were based. Those matters fall into two groups. Mr. Vickery submitted that none of those matters had ever been raised with either of the applicants so as to give them an opportunity to give an explanation or to advance matters in mitigation.

5. He submitted that the requirement to accord procedural fairness obliged the respondent Minister to give the applicants an opportunity of responding to the matters in those two groups. In this connexion he relied upon the decision of the High Court in Kioa, supra. He cited the following passage from the reasons for judgment of Mason J. (at pages 40-41 of the print) :-

"The applicant is entitled to support his
application by such information and material as he
thinks appropriate and he cannot complain if the
authorities reject his application because they do
not accept, without further notice to him, what he
puts forward. But if in fact the decision-maker
intends to reject the application by reference to
some consideration personal to the applicant on the
basis of information obtained from another source
which has not been dealt with by the applicant in
his application there may be a case for saying that
procedural fairness requires that he be given an
opportunity of responding to the matter (In re H.K.

(An Infant) (1967) 2 QB 617)."
Mason J. went on (p. 41) to refer to :-

". . . the importance which the law attaches to the
need to bring to a person's attention the critical
issue or factor on which the administrative
decision is likely to turn so that he may have an
opportunity of dealing with it.

. . . it seems to me that there are two matters only
in respect of which fairness demands that the
applicant should have the chance of replying. The
first is the comment in par. 21 that had Mr Kioa
been genuine in his desire to seek a legitimate
extension of his stay in Australia he might have
sought a decision on his application rather than
change his address without apparently notifying the
Department. The second matter is that contained
in par. 22, namely, the statement that Mr Kioa's
concern for other Tongan illegal immigrants and his
active involvement with other persons who were
seeking to circumvent Australia's immigration laws
'must be a source of concern'. Although the
statement of reasons makes no reference to the
contents of par. 22, it does not disavow them. As
the paragraph was extremely prejudicial, the
appellants should have had the opportunity of
replying to it."

It should be noted that his Honour went on to say (pp.41-2) :-

"The other material of which the appellants
complain consists of policy, comment and undisputed
statements of fact. It does not call for a chance
to reply."

Wilson J. said (p. 59) that :-

"When regard is had to the circumstances of the
present case, it is immediately clear that save in
one respect there can be no room for complaint of
unfairness in the procedures followed by the
Minister."

His Honour made it clear that the "one respect" was that dealt with in paragraph 22 of the departmental submission - referred to earlier in these reasons in relation to the judgment of Mason J. As to that paragraph Wilson J. said (at p. 60) :-

"The allegation was clearly prejudicial to the
application to be allowed to stay in Australia.
Ordinarily, procedural fairness would require that
such an allegation be put to them and they be given
an opportunity to answer it before a decision was
made."

6. Brennan J., considered (p. 93) that it was only the "failure to give Mr. Kioa an opportunity to deal with" the allegation in paragraph 22 of the departmental submission which amounted to a "non-observance of the principles of natural justice". His Honour held that "an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision . . . (because) information of that kind creates a real risk of prejudice".

7. On my reading of the reasons for judgment of the High Court in Kioa - and in particular those of Mason, Wilson and Brennan JJ. - the requirements of procedural fairness did not require the respondent Minister to give to the applicants in the present case any opportunity to respond to any of the matters in the two groups relied upon by them, beyond that afforded to them at the time of their interviews.

8. The first group of matters included a statement in paragraph 29 of the respondent's reasons that the applicants had "committed offences against the Migration Act . . . by working without the written permission of an authorised officer". Allied to this was a reference (in paragraph 34) to breaches by the applicants of undertakings "not to remain in Australia after the expiry of their entry permits and not to seek to remain permanently in Australia".

9. The applicants' counsel said that he was not submitting that the facts alleged in paragraph 29 were not correct. He added:-

"I am not submitting for a moment that they did not
do those things and they found work and they did
work, but the fact of the matter is that they were
not given an opportunity in the light of the way
this assessment was formulated to explain why it
was, for example, that they did work without
seeking written permission of an authorised
officer."

The argument was essentially that they should have been told that their actions in working and remaining in Australia were illegal and should have been invited to put matters before the Minister in explanation or in mitigation.

10. However, the material before the Court shows that the applicants had notice of the illegality of their actions. The visa issued to Mr. Kaufusi, a copy of which was before the Minister, clearly stated "Employment Prohibited". Further, the temporary entry permit issued to him expressly stated "Permitted to enter with temporary entry status on 13 October, 1980 for one month. Employment prohibited without written permission of an authorised officer". It was not suggested that Mrs. Kaufusi was not issued with a visa and temporary entry permit in similar terms.

11. It may be added that in one of her communications to the department Mrs. Kaufusi apologized for breaking the law. Further, attached to her application for resident status was typed material, forwarded by her solicitors by letter dated 2 April, 1985, which referred to her working in Australia. In addition, Mr. Kaufusi, in typed material forwarded to the department, expressly said: "Throughout the period I have resided in Australia I have been unemployed only for a short period . . .".

12. The applicants had legal representation from at least 5 March, 1985. It has not been suggested that their solicitors were unaware of the illegality of the applicants' actions. In the circumstances, including the fact that the applicants had received notice from the department in the form of conditions attached to visas and temporary entry permits, in my opinion there was no requirement, as a matter of procedural fairness, that the applicants be given further notice that their actions in working and in remaining in Australia were illegal.

13. I turn now to the question of whether they were given an opportunity to put matters in explanation or mitigation. The solicitor acting for the applicants in these proceedings was present at their interview on 20 March, 1985. The material records that he informed the department that he did not intend to be present at the further interview of the applicants to be held on 26 March, 1985. The material also shows that at that interview Mrs. Kaufusi was told that the interview was for several purposes, including that of giving her an opportunity to advance additional factors in her favour and of inviting her "to provide further representations of your circumstances in writing". Having regard to all of these considerations in my opinion the respondent Minister was not under a duty, as a matter of procedural fairness, to give to the applicants an opportunity, beyond that provided at and immediately following the interview, to respond to the allegations in paragraphs 29 and 30 that they had engaged in certain conduct and that such conduct constituted an offence.

14. Of the matters in the second group relied upon by the applicants, one statement was described by Mr. Vickery as "mildly prejudicial", namely, paragraph 10 of the respondent's findings, which referred to the time that had elapsed before Mrs. Kaufusi attended the Department's office for an interview. The applicants' criticism of that statement was supported by reference to a statement in an earlier departmental submission, dated 11 April, 1985, that "she made no further contact". Mr. Vickery also classed as "prejudicial" paragraph 4 of annexure J, which read:-

"Mr. Kaufusi was unable to provide his wife's
address apart from saying that she was living
somewhere in the Robinvale area."

The strongest criticism of the matters in the second group was directed towards paragraph 15 of the respondent's reasons, which read:-

"On 26/3/85 Mrs. Kaufusi provided to Melbourne
Office an address in Canberra, claiming this to be
the place of residence of her parents and siblings.
A visit to this address by departmental offices
(sic) failed to reveal any evidence of their
residence there or indications as to their
whereabouts."

Mr. Vickery submitted that paragraph 15 conveyed the meaning that Mrs. Kaufusi had given a false address in respect of her parents; further, that the matters referred to in paragraph 10 and in annexure J conveyed that Mrs. Kaufusi was evasive and that Mr. Kaufusi was withholding information from the department as to his wife's address. In his submission the material was prejudicial to the applicants and required the Minister to give them opportunity to answer it.

15. Reading paragraph 15 in its context, in my opinion it does not convey that Mrs. Kaufusi had deliberately given the department a false address - as distinct from giving an address which appeared to be incorrect but without any finding being made by the respondent as to how the error occurred. It does not use the word "false" nor does it imply any deliberate misleading of the department. The statement is quite consistent with a mistake having occurred - the source of which was not known to the Minister. Had the Minister concluded that Mrs. Kaufusi had deliberately given a false address, in my opinion he would have classed it as a false statement and would have expressly referred to it in the reasons for his decision. The Minister's words may be compared with the statement that Mr. Kioa's conduct regarding "other Tongan illegal immigrants . . . must be a source of concern" - see judgment of Mason J. (at p. 41) in the passage quoted earlier.

16. In my opinion none of the statements in paragraph 15, paragraph 10 or annexure J could be described as prejudicial. Accordingly, procedural fairness did not require that the applicants be given an opportunity to respond to any of the matters in the second group.

17. It may be added that during the hearing the question was raised from the bench as to whether the address visited by the departmental officers, namely, 8 Fenton Road, Downer, A.C.T., was the address given by Mrs. Kaufusi. However, no evidence was called - or sought to be called - by the applicants to show that there may have been a departmental error which the Minister would have discovered had he made reasonable enquiries cf. the statement by Brennan J. in Kioa (at p. 91) and also the statement by Wilcox J. in Prasad v Minister for Immigration and Ethnic Affairs ((1985) 7 A.L.N.; N79-N82).

18. No ground having been established, the application must be dismissed and the applicants ordered to pay the costs of the respondent.