Jones v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 70 (10 February 2005)

MIGRATION – cancellation of BF (permanent visa) – whether former Minister failed to have regard to best interests of applicant’s children – whether cancellation failed due to misdescription of visa – whether jurisdictional error arising from procedural unfairness in that visa holder not notified of new adverse issue arising in issues paper

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 474(1), 501(2), 501(6), 501(7), 501G(1), 501G(1)(e)
Family Law Act 1975 (Cth) ss 64B, 65Y, 65Z

Family Court Act 1997 (WA) ss 84, 107,108

Migration Regulations reg 1.06

Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497 considered
Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298; (2003) 133 FCR 541 applied
Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151; (2004) 206 ALR 488 cited
Kioa v West [1985] HCA 81; (1985) 159 CLR 550 cited
Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 cited
Long v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 610 cited
M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 considered
Minister for Immigration & Multicultural & Indigenous Affairs v Schwart [2003] FCAFC 229 distinguished
Minister for Immigration & Multicultural & Indigenous Affairs, Re; Ex parte Palme [2003] HCA 56; (2003) 201 ALR 327 cited
Minister for Immigration & Multicultural & Indigenous Affairs, Re; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 cited
Minister for Immigration & Multicultural Affairs v W157/00A [2002] FCAFC 281; (2002) 125 FCR 433 cited
Naidu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 184 cited
Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 875 cited
Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 19 followed
Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 757 distinguished
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 cited
Powell v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 717 cited
Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 84 applied
Roberts v Minister for Immigration & Multicultural Affairs [2004] FCA 739 distinguished
Shaw v Minister for Immigration & Multicultural Affairs [2003] HCA 72; (2003) 203 ALR 143 cited
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 applied
Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 followed

NATALIE BOWEN JONES v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
WAD 54 of 2003

RD NICHOLSON J
10 FEBRUARY 2005
PERTH

BETWEEN:	NATALIE BOWEN JONES APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	10 FEBRUARY 2005
WHERE MADE:	PERTH

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

1 The applicant brings an amended application seeking relief under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision made by the respondent on 17 January 2003 to cancel the ‘BF-C (permanent) visa’ held by the applicant. The decision of the respondent is a privative clause decision protected by s 474(1) of the Migration Act 1958 (Cth) (‘the Act’) unless it was infected with a jurisdictional error, such that in law it was no decision at all: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [76]. Therefore, the issue for the Court is whether the applicant can establish that the decision of the respondent was infected by a jurisdictional error.

2 Leave was granted at the hearing to the applicant to file an amended application. Grounds in that application are that jurisdictional error occurred because the respondent failed to address the question of what was in the best interest of the applicant’s children and failed to take into account relevant considerations in purporting to determine those best interests. Additionally, it is said that the respondent failed to provide the applicant with reasons as required by s 501G(1)(e) of the Act. Further, it is contended that the respondent cancelled a visa class which did not exist. It is also contended that the decision was made in breach of the rules of natural justice.

3 The applicant’s case is supported by affidavits of the applicant sworn on 18 March 2003 and 15 September 2004. The applicant also relies on the affidavit of the respondent’s solicitor sworn on 17 April 2003. The respondent relies on the affidavit of Mr Carlin sworn on 20 September 2004.

4 The applicant was born in England on 4 July 1960 and is a British citizen. On 12 October 1977 she first entered Australia. Apart for a period of six months in 1979, she has resided continuously in Australia since then.

5 When the applicant returned to Australia on 23 October 1979, she was granted permission to enter Australia (an entry permit). This was granted pursuant to s 6(1) of the Act in the form which it stood at that time. The effect of it was not subject to a limit as to time. Pursuant to reg 4(1), which was introduced by the Migration Reform (Transitional Provisions) Regulations (Statutory Rule No 261 of 1994), the entry permit continued in effect as a transitional (permanent) visa after 1 September 1994. This permitted the applicant to remain indefinitely in Australia.

6 The applicant is the mother of two children, namely, a son born on 28 December 1991 and a daughter born on 20 April 1993. Both children are Australian citizens.

7 Commencing in 1989, the applicant was convicted of the following offences and had the following sentences imposed:

Court/Date	Offence	Sentence
18/10/1989 Petty Sessions Perth	No motor driver’s licence	$50 fine
01/02/1996 Petty Sessions Perth	Stealing	Recognisance $200 to be of good behaviour 12 months
21/05/1996 Petty Sessions Perth	Stealing	$80 fine
16/04/1998 Petty Sessions Perth	Stealing	$100 fine
01/07/1998 Petty Sessions Perth	Stealing	12 months community based order 100 hours community work
15/02/1999 Petty Sessions Perth	Breach of community based order	$300 fine
03/11/1999 District Court Perth	Possession of heroin Possession of heroin with intent to sell/supply	Each charge: 18 months intensive supervision order 120 hours community work
25/07/2000 Petty Sessions Perth	Possession of heroin	$300 fine
09/11/2000 Perth District Court	Breach of intensive supervision order Possession of heroin	15 months imprisonment 1 month imprisonment (served concurrently)

8 As a consequence of those convictions and sentences, the applicant was liable to be deemed to have a ‘substantial criminal record’ within the meaning of s 501(7) of the Act and to be found not pass the ‘character test’ under s 501(6)(a) of the Act. On 14 August 2002 the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) sent to the applicant a notice of intention to consider cancelling a ‘Class BF Transitional (Permanent) Visa’ held by the applicant. The letter referred to the liability of her visa to be cancelled by the respondent under s 501 of the Act on grounds arising under ss 501(6)(a), 501(6)(c)(i) and 501(6)(c)(ii), 501(6)(d)(ii) and 501(6)(d)(v). It stated that matters to be taken into account by the respondent included:

● Your past and present general conduct’

It further stated that the respondent would have regard to those matters and to the Minister’s Direction No 21 issued under s 499. It invited the applicant to read fully and carefully the contents of that Direction and to address each and every topic which she considered was relevant to her circumstances and to provide further information if necessary. The letter stated that it enclosed a copy of s 501 of the Act, the Direction No 21 and a Ministry of Justice Report which would be included in the Department’s submission to the respondent, on which comment was also invited. The Ministry of Justice Report dated 6 February 2001 was highly complimentary to the applicant, stating she was not a management problem and describing positive steps she had taken.

9 The applicant provided submissions in response by a letter dated 20 September 2002. In her letter the applicant explained she had become involved with the father of her children in 1985. By the time she had done so she had already started involvement with heroin. She and he split up in 1996. In January 1998 she placed her children into the care of their father and went to work in Broome for six months. She stated that whatever the problems she and he had, he was a good father and therefore she left the children in his care. She submitted that the children were bright and well adjusted and that they were extremely close to both she and their father. She stated she was fearful of the effect on them should either of them be removed from Australia permanently.

10 In her submissions she also described the circumstances of her offences and stated she had reached the view that she never again wanted to put herself or her children in the position where she was imprisoned.

11 On 30 December 2002, an officer of the Department prepared for consideration by the respondent a document entitled ‘Issues for Consideration of Possible Cancellation of Ms Jones’ Visa Under Section 501(2) of the Migration Act 1958’ (‘the Issues Paper’). The contents of this are further explained below.

12 On 17 January 2003, the former Minister cancelled the applicant’s visa by endorsement on the final page of the Issues Paper.

13 On 30 January 2003, an officer of the Department sent a notice of cancellation of visa to the applicant. The notice described the visa as ‘Subclass BF-C’. That notice was received by the applicant on 10 February 2003.

14 On 11 March 2003, the application to review the former Minister’s decision was filed. On 21 March 2003, in response to a notice of motion dated 13 March 2003, Lee J granted an interlocutory injunction restraining the respondent from continuing to detain the applicant at immigration detention, subject to the terms of an undertaking given by the applicant. No immediate hearing date was sought from the Court pending judgment from the High Court in Shaw v Minister for Immigration & Multicultural Affairs [2003] HCA 72; (2003) 203 ALR 143.

15 In the Issues Paper the visa class of the applicant was described as
‘BF-C (Permanent)’. In addressing ‘primary considerations’, the convictions of the applicant were set out in relation to the ‘seriousness and nature of conduct’.

16 In referring to the ‘likelihood that the conduct may be repeated’, it was stated that the applicant had not previously been warned about the risk of cancellation under s 501 or of criminal deportation under s 200 and s 201. After setting out various circumstances the Issues Paper concluded at par [27] that ‘in consideration of the above factors, it is open for you to find that [the applicant] is at high risk of recidivism’.

17 The circumstances set out in relation to the finding of the risk of recidivism were as follows. Reference was made to the applicant’s convictions as previously set out, to mitigating statements by her in her submission and to a Ministry of Justice Report which, like her submission, was favourable to the applicant. The following extracts from the transcript of proceedings at the time of the applicant’s trial on 9 November 2000 were then quoted:

Although the Issues Paper stated that a copy of the transcript was annexed, that was not the case.

18 Under the heading ‘The Best Interests of the Children’ attention was directed to art 3.1 of the Convention on the Rights of the Child (‘CROC’) which states:

19 The Issues Paper then set out the following matters in relation to the best interests of the children. In relation to the relationship between the children and the applicant, the Issues Paper referred to her submission that they were extremely close to her and her partner and she was fearful of the impact on them of her permanent removal; to the Transcript of Proceedings of 9 November 2000 where her representative stated she was a good mother, maintaining constant contact; and to her submission that the children had returned to her full-time care when her partner was arrested and imprisoned in May 2001. It noted the age of the children as the boy being ten (born 28.12.91) and the girl being nine (born 20.4.93). It noted the two children are Australian citizens. Concerning the impact of her prior conduct on the children, the Issues Paper recorded the applicant’s submission that the children had been taught right from wrong; and the statement in the Transcript of Proceedings of 9 November 2000 that she was a good mother. The Issues Paper stated the children had been born and spent their whole lives in Australia. It noted that the educational facilities and standard of health support system of the United Kingdom are of a similar standard to those in Australia. It also stated that the children would not face language barriers there and would face minimal cultural barriers. Finally the Issues Paper noted the children’s father had not made any comment relevant to these issues. It concluded by stating ‘it is open to you to find from the information given that the cancellation of [the applicant’s] visa and her removal from Australia may have a detrimental effect on her children’. The Issues Paper then referred to annexed copies of the applicant’s submission and the Transcript of Proceedings of 9 November 2000 as well as communications regarding requests for comments from the children’s father.

20 Attached to the Issues Paper was the official criminal history of the applicant and a copy of her submissions.

21 In the Ministerial Direction the following was stated under the heading ‘likelihood that the conduct may be repeated’:

22 In endorsing his decision on the Issues Paper, the former Minister deleted three other options available to him and selected the one reading to the effect that he reasonably suspected the applicant did not pass the character test and that she had not satisfied him that she passed that test. He then recorded that he had decided to exercise his discretion under s 501(2) of the Act to cancel the visa, in relation to which he stated ‘I hereby cancel the visa’.

FIRST GROUND: WHETHER FORMER MINISTER FAILED TO HAVE REGARD TO THE BEST INTERESTS OF THE APPLICANT’S CHILDREN

24 The applicant submits it is well established that a failure to take into account the best interests of an applicant’s children as a primary consideration is a breach of natural justice. Reference to it as such a consideration was set out in the Ministerial Direction sent to the applicant with the letter giving notice of intended cancellation dated 14 August 2002.

25 The applicant accepts that it is established that an issues paper with the Minister’s decision endorsed on it (as exists in the case of the Issues Paper in the present case) does not comply with the requirements of s 501G(1) of the Act whereby the Minister is required to give notification of a decision of refusal or cancellation, which sets out the decision and the reasons for it. However, the applicant submits that once the decision is known, the Minister’s reasons for reaching that decision can be deduced or inferred from the contents of an issues paper. Alternatively, it is submitted, the matters to which the Minister had regard and the general approach taken by the Minister are reflected in the Issues Paper. Authorities relied upon are Long v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 610 at [53] – [57]; Powell v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 717 at [23] –[34]; and Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 at [52].

26 Here it is said that the Issues Paper failed to consider two obvious alternative possibilities that were apparent from the material set out in it. One was that the applicant’s children would return with her to the United Kingdom. The other was that the children would remain in Australia, being the only environment that they knew and in which they would not be separated from their father and grandparents on both sides. It is said further that no consideration was given to the provisions in the Family Court Act 1997 (WA), ss 84, 107 and 108 (equivalent to ss 64B, 65Y and 65Z of the Family Law Act 1975 (Cth)) giving the Court power to prevent the children accompanying their mother to the United Kingdom.

27 The respondent does not accept that the Minister’s reasons can be inferred from the Issues Paper. Rather, the respondent contends that the applicant cannot make out the ground in part because the respondent’s reasons for decision have not been published. Therefore, it is said it cannot be established that the children were not taken into account by the respondent as a primary consideration: Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 875, affirmed on appeal in Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 19. See also Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex parte Palme [2003] HCA 56; (2003) 201 ALR 327 at [29], [60] and [94] and Minister for Immigration & Multicultural Affairs v W157/00A [2002] FCAFC 281; (2002) 125 FCR 433 at [71] per Branson J. Further, it is said that the best interests of the children were not a ‘relevant consideration’ in an administrative law sense in visa cancellations decisions made by the Minister personally under s 501 of the Act: Le at [58] – [66].

28 The respondent also submits that the contents of the Issues Paper, Direction 21 and the materials annexed to the Issues Paper together with the endorsement by the respondent on it, all suggest that he did take into account the best interests of the applicant’s children as a primary consideration. The respondent relies on the authority of Ex parte Palme and the Full Court in Nguyen as well as Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151; (2004) 206 ALR 488 at [40] to support the applicant’s concession that the failure of the respondent to provide reasons in accordance with s 501G(1)(e) of the Act does not constitute a ground for judicial review.

29 The respondent’s principal submission is that the applicant is unable to establish, on balance, that the respondent did fail to have regard to the best interests of the children as a primary consideration. This is said to follow from two factors. The first is that the respondent’s reasons are not in evidence. The second is that the available evidence strongly suggests to the contrary.

30 It is common ground that the respondent had not provided to the applicant reasons as required by s 501G(1)(e) but that this did not give rise to jurisdictional error.

31 Furthermore, in view of the circumstances presented by the Issues Paper and considering them in the light of the decision of the Full Court in Nguyen, I do not consider that the reasons of the respondent can be inferred as being in evidence here. Because of the reasoning in Nguyen and the similarity of the Issues Paper here to that in issue in Nguyen, I do not consider it is open to me to do as the applicant urges and follow the reasoning of Carr J in Powell. Consequently the applicant is unable to make out her case that the respondent did in fact fail to give consideration to the interests of her children.

32 Additionally, even if the Issues Paper were a record of the respondent’s reasons, it is not possible for the applicant to establish that the respondent failed to consider the best interests of the children. This follows from the consideration of the contents of the Issues Paper considered in the light of the reasoning of the Full Court in Nguyen.

SECOND GROUND: WHETHER RESPONDENT FAILED TO CANCEL THE VISA ACTUALLY HELD BY THE APPLICANT

33 At all relevant times the Migration Regulations contained the following provision in reg 1.06:

34 In the affidavit of Mr Carlin, evidence was given on behalf of the respondent that pursuant to reg 1.06 of the Migration Regulations a transitional (permanent) visa may be referred to by the code ‘BF’. He further deposed that the code ‘C’ in the reference to a visa described as ‘BF-C’ indicates that the visa was created for the purposes of the cancellation process. In the course of submissions it was accepted by the respondent that Mr Carlin’s evidence in relation to the code ‘BF-C’ should be understood as referring to the creation of a particular record of a visa which can be considered for cancellation.

35 The applicant submits that, although there is no dispute that the visa category held by the applicant was a transitional permanent visa, such description was not referred to in the Issues Paper. Rather, the Issues Paper referred to a visa class ‘BF-C (permanent)’. It is said, this is the visa class which was cancelled as disclosed by the notice of visa cancellation given on 30 January 2003.

36 The applicant’s contention is that there was not such class or subclass as ‘BF-C’ so that the respondent, in effect, purported to cancel a class of visa which did not exist. It is said that the evidence of Mr Carlin shows that the description is no more than a computer code and that there is no statutory authority for a class or subclass of ‘BF-C’.

37 The applicant accepts that the correct terminology was used in the letter sent to the applicant giving her notice of intended cancellation. However, the submission is that it is impossible to say that a class BF is the same as a class ‘BF-C’. It is said that once letters are used in a code form the correct code must be used or otherwise the reference is meaningless.

38 These submissions are supported by reference to Minister for Immigration & Multicultural & Indigenous Affairs v Schwart [2003] FCAFC 229 at [17] – [34]; Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 757 at [24] – [36]; and Roberts v Minister for Immigration & Multicultural Affairs [2004] FCA 739.

39 The respondent submits that the decision to cancel the applicant’s visa is distinguishable from those dealt with in both Schwart and Roberts. In the issues papers in both those decisions it is said there were incorrect references to the class of visa held by the applicants. Here it is said that pursuant to reg 1.06, a transitional (permanent) visa may be referred to by the code ‘BF’. Therefore, references to the visa in the documents which led to the cancellation by the respondent were permissible descriptions of a class of visa that the applicant held. Accordingly, it is submitted, the applicant’s visa was correctly cancelled by the respondent.

40 The respondent says that the only difference is the reference to ‘-C’ in the description of the visa and such reference, being a subset of a ‘BF’ cannot give rise to jurisdictional error.

41 In Schwart the question which arose on appeal was whether, by signing the Decision Page, the Minister cancelled the only visa held by the respondent in that proceeding (residence visa category K 1412 continued as a transitional (permanent) visa pursuant to reg 2.01(b)(i) of the Migration Regulations). In the Memorandum to which the Decision Page was appended the visa had mistakenly been described as a subclass 155 five year resident return visa. The Full Court (Tamberlin, Mansfield and Emmett JJ) accepted that the Decision Page did not purport to cancel anything other than the subclass 155 visa, so that it was correct that the Minister did not cancel the visa held by the respondent. In reaching that view the Full Court drew attention to the importance of avoiding sloppiness and preparing documentation with care where it involved the entitlement of an individual to remain in Australia. In the circumstances, the misreference made it not possible to be certain the Minister understood what he was doing when he signed the Decision Page.

42 In Roberts French J held that the Minister failed to address the question he was required to address by s 501A of the Act when he purported to cancel a non-existent visa. It was described as KOG Migrant Visa whereas in fact the applicant there held a transitional (permanent) visa. French J endorsed the reasoning of the Full Court concerning the importance of accuracy in administration.

43 In Nguyen the applicant’s visa was a transitional (permanent) visa but was misdescribed in documentations pertaining to its purported cancellation as a subclass 155 permanent residence visa. Schwart was followed by Lee J in concluding that these circumstances would have entitled the applicant there to relief (which was granted on another ground).

44 It is correct that Schwart, Roberts and Nguyen involved wholly incorrect references to the relevant visas. While that distinguishes those decisions from the circumstances in the present proceeding, it does not wholly do so. The reference here to ‘BF-C (permanent)’ is not an exact reference to the relevant visa class and so may attract the rationale of the Full Court in Schwart concerning the need to avoid ‘sloppiness’. On the other hand it is arguable that the decision of the respondent took effect in relation to all but the reference to ‘-C’ so that it was legally effective. Having regard to the rationale of the Full Court in Schwart and the fact that in the circumstances of this proceeding it cannot be safely inferred the respondent did not know what he was doing (because the reference to the visa was correct save for the reference to ‘-C’, I consider the latter is the correct view. That is, I conclude the reference to ‘BF ... (permanent)’ was sufficient to attract the application of reg 1.06 despite the presence of the added reference to ‘-C’ so that reference was a reference to the relevant class of visa. Therefore I do not consider the applicant succeeds on the second ground.

45 There are three breaches of natural justice alleged in the amended application. The first is that the respondent did not inform the applicant or the applicant’s children that he did not intend to have regard to the children’s best interests. Consistently with the reasoning on the first ground concerning the taking into account of the children’s interests, it has not been established that the respondent had such an intention so that this aspect of the ground cannot be made out.

46 The second is that the applicant was not provided with the Issues Paper and had no opportunity to comment on or refute the statement in it that she was ‘at high risk of recidivism’. The third is that the applicant was not provided with the judge’s sentencing remarks dated 9 November 2000 and therefore had no opportunity to comment on or refute adverse information in them.

47 In respect of par [27] of the Issues Paper which contained the statement that the applicant was ‘at a high risk of recidivism’, the applicant says this was not based on any material of which the applicant had been made aware. Rather, it is said by her to have been based on, if anything, material in the transcript of proceedings dated 9 November, which was not provided to her.

48 It is contended that the statement could not follow from the applicant’s criminal history which ‘was of a relatively minor nature and with a limited number of convictions’. It is said the applicant was 42 years of age and had spent just 5 months in prison, almost a full two years earlier, and had no convictions or charges following her release from prison.

49 Therefore it is submitted that her position is on all fours with but stronger than that dealt with in Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497 and Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298; (2003) 133 FCR 541 (Full Court); see also Naidu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 184 at [42].

50 The applicant distinguishes the decision in M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 at [54] – [57]. There the Full Court held there was no rule that the person the subject of a decision must be given any Departmental submission given to the decision-maker. However, that view was reached on the basis that the submission in the case was balanced and contained no adverse matter to which the applicant had not otherwise been alerted. There, the issue of recidivism had been dealt with substantially favourably to the appellant, which distinguishes it from the position of the applicant.

52 The respondent says that there was no breach of natural justice for the following reasons. First, it was not even necessary that the applicant be provided with a copy of the Issues Paper: Le per French J at [78]. Second, the fact that the respondent would be considering the issue of the applicant’s criminal conduct and recidivism was made clear to the applicant in the notice of intention to cancel and in Direction 21, as a consequence of which the applicant specifically addressed the issue of recidivism in her letter of 20 September 2002. Third, the statement in the Issues Paper that ‘it is open for you to find that Ms Jones is at high risk of recidivism’ was a qualified comment. Fourth, there is no evidence that the former Minister did in fact take the comment into account in reaching his decision. Fifth, suggestion of a finding which could be unfavourable to the applicant does not lead to the requirement to invite further comment from the applicant: M238 of 2002 at [56]. Sixth, the applicant was aware of the comments in the transcript because she was present at the time of their delivery and, in any event, the transcript stated both positive and negative comments concerning her. Seventh, the applicant in fact addressed the issues the subject of the sentencing remarks in her letter to the respondent in response to the notice of intention to cancel and there is no evidence that she could have provided additional information in response to the transcript. It is submitted that there was therefore no ‘practical injustice’: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1.

53 In oral submissions the respondent dwelt at some length upon the contents of the documents referred to in the above submissions made by him. Counsel for the respondent also emphasised that, for a complaint of procedural unfairness to be made out, it is necessary for the applicant not only to establish that a breach of natural justice has occurred but also that the discretion ought to be exercised to grant relief. This requires, it is submitted, that there be a careful examination of the circumstances of the case, the issues involved and the nature of the inquiry and the decision.

54 In Dagli one of the bases for contentions of the existence of procedural unfairness was the statement in the issues paper there that it was open to the respondent ‘to find that Mr Dagli is at a medium to high risk of recidivism’. The primary judge found that although the applicant there had been given the opportunity to comment on his rehabilitation in general terms through a questionnaire provided to him, it did not alert him to the case against him on the point. Hill J said ‘had [the applicant] been aware that the conclusion to be put to the Minister was that he was likely to reoffend, it may well be that he could put to the Minister matters which might lead to the Minister taking a different view on this question’. Although his Honour decided the proceeding at first instance against the applicant, that was based on his view that a statement of reasons made available ex post facto by the Minister established that the breach of procedural fairness had not affected the outcome of the application. On appeal the Full Court found his Honour had erred in treating the statement of reasons as a complete answer to the breach. However, it found that his Honour had correctly found that the breach of natural justice had occurred as a consequence of several circumstances, of which the statement in the issues paper concerning prospects of recidivism was one.

55 In the course of its reasoning the Full Court in Dagli rejected a submission for the respondent that it was necessary for the appellant in that case to demonstrate what, if anything, he could usefully have said in response to the adverse matters set out in the issues paper. It accepted as correct the statement of Hely J in Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 at [34] which recognised that if a breach of the rules of natural justice is established, an applicant would ordinarily be entitled to relief unless the Court was satisfied that the breach could have had no bearing on the outcome: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 147; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 84 at [80]. Further, where an applicant was not informed of the case which he had to meet, that is sufficient to establish ‘practical injustice’ without the applicant having to prove what he would have done had he been informed of that case.

56 However, it does not follow, from this reasoning of the Full Court in Dagli nor the outcome of that appeal, that the non-provision of the statement in the Issues Paper concerning the likelihood of the applicant’s recidivism necessarily gave rise to procedural unfairness as the consequence of a breach of natural justice. As was stated by Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 585, cited by Hill J in Dagli at [43], ‘the expression ‘procedural fairness’ more aptly conveys the notion of flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case’. What is centrally at issue here is whether in the particular circumstances of the applicant in this proceeding, the non-provision of the statement on recidivism was procedurally unfair because the applicant did not have the opportunity ‘to know the case sought to be made against [her] and to be given an opportunity of replying to it’: Kioa at 582.

57 In Dagli at first instance Hill J accepted that the applicant there could, from the letter giving notice of intention to consider cancellation, know generally the negative matters against him. Those matters were his criminal record and the sentencing judge’s comments. However, he did not consider that it sufficed that the person merely be shown a copy of the Minister’s Direction and be warned that matters in it would be taken into consideration. That was because the Direction was in general terms ‘and hardly informs the reader which of those matters the Minister may take into account, or what emphasis may be given to the one against the other, let alone the detail of the matter which the Minister might take into account under one head or another’: Dagli at first instance at [51]. At [49] Hill J said ‘the real question is whether he was given the opportunity to know the case that was put to the Minister against him before the Minister made his decision so that he could answer that case’. In reaching its view that Hill J was correct in his conclusion that a breach of natural justice had occurred, the Full Court in Dagli described the assessment in the issues paper of the appellant’s likelihood of re-offending as ‘extraordinarily negative’ and as ‘directly counter to the Probation and Parole Report’. It noted that the Minister himself had rejected it when he came to prepare his statement of reasons in March 2003 and had concluded that the appellant posed only a ‘low to moderate’ risk of re-offending.

58 The circumstances in M238 were as follows. There the Departmental submission to the Minister concluded in relation to the issue of recidivism that it was open to the Minister to find that the applicant was at a low risk of recidivism. In a letter to the Department, it had been submitted by the applicant’s lawyers that the applicant posed a negligible risk. The primary judge held that procedural fairness did not require the provision of the Departmental submission to the appellant and that the appellant’s lawyers had squarely drawn to the attention of the Minister the issue of recidivism, so that the applicant had a full opportunity to deal with the issue.

59 In dismissing the appeal, the Full Court (Gyles, Conti and Allsop JJ) accepted that what was said by Mason J in Kioa at 583-585 applied, so that what procedural fairness required were fair and flexible procedures, bearing in mind the circumstances of the case, the issues involved, and the nature of the enquiry and the decision. The Court said fairness in the circumstances did not require the Departmental submission to be provided to the appellant. This was because it did not contain any adverse matter to which the appellant had not otherwise been alerted by Direction No 21, the apparent nature of the power and common sense: at [54]. In particular, the Court considered that all the issues of recidivism had been plainly drawn to the appellant’s attention: at [55]. The distillation of the material into the Departmental submission was not considered by the Court to have given rise to any new adverse issue: at [56]. Therefore the Court considered there was no requirement for a further round of submissions at least where ‘the submission is a measured and balanced drawing together of the relevant material’.

60 I do not read [56] in M238 of 2002 as stating as a matter of principle that no new adverse issue can arise where the author of a submission to the Minister expresses him or herself less favourably than an applicant may have wished but does so in a measured and balanced way drawing together all relevant material. It is apparent from a reading of the reasons as a whole that all the circumstances must be considered and that it is a question of fact in each case whether a new adverse issue does arise from the manner in which the submission is prepared.

61 There is some tension between the view of Hill J in Dagli at [51] that, where a decision was to be made which would be likely to have a very significant effect on a person’s life, it did not suffice that the person ‘merely be shown a copy of the Minister’s Direction and warned that matters in it would be taken into consideration’ and the approach of the Full Court in M238. Nevertheless, the critical matter in the reasoning in each case was the effect of the particular circumstances of the case in determining the requirements of procedural fairness.

62 The circumstances of the present case show the following. In the notice of intention to consider cancellation, the applicant was informed that her present criminal and general conduct were among matters to be taken into account. Her attention was brought to Direction No 21. That in turn informed her that the likelihood of recidivism was an issue and that past recidivist conduct in the circumstances of par [2.10] would be relevant. In her submission the applicant addressed issues concerning her conduct relating to her re-offending. The transcript, which was not forwarded to the applicant, contained the submissions of her counsel before the District Court. There was not at that time and there is not now any contest as to the accuracy of what was put to the sentencing judge in the transcript. The statement on recidivism in the Issues Paper appeared after reference to the convictions of the applicant as well as the extract of the transcript on the applicant’s sentencing on 9 November 2000.

63 In relation to the non-supply of the transcript, it is the case that the applicant gave the instructions which led to the submissions made on that occasion. She was capable therefore from her own knowledge of what had occurred to her and of identifying anything to be raised in relation to the sentencing remarks in terms of issues identified by the Minister’s Direction. It is clear that the applicant would have been aware of the general adverse matters before her. However, it cannot be safely inferred that she would have been aware of the text of the portions of the transcript quoted in the Issues Paper. Nevertheless, that alone would not establish procedural unfairness as it requires consideration in relation to its connection to the statement on recidivism in the Issues Paper.

64 In relation to whether the non-notification of the finding of the high risk of the likelihood of recidivism should have been communicated to the applicant, I see the position as follows. On the view of Hill J in Dagli, non-communication of that opinion meant that the applicant was not alerted to the nature of the case against her on this point. The Full Court in Dagli based its view on the negativity of the assessment when compared to the Probation and Parole report in that case. In terms of what was said in M238, there was present in Dagli a new adverse issue which had arisen. That was not the case in M238 because no new adverse issue arose. Here, however, the statement in the Issues Paper that the applicant was at high risk of recidivism ran ‘directly counter’ to the Ministry of Justice Report of 6 February 2001: Dagli (Full Court) at [81]. A new adverse issue was therefore raised by the Issues Paper. Failure to draw it to the attention of the applicant was therefore a breach of natural justice. As with Dagli (Full Court) at [82], it is at least arguable that had the appellant been told of the view of her high risk of recidivism, she may have been in the position to meet that allegation given the content of the Ministry of Justice Report. Applying what was said by Hely J in Tuncok and approved by the Full Court in Dagli at [91], I am therefore not satisfied that the breach could have had no bearing on the outcome. In any event, as Tuncok makes apparent, it is not for the applicant to now demonstrate how that might have been the case.

65 I accept that in Dagli other circumstances were at issue. Here, however, the highly adverse assessment of the risk of recidivism was clearly central to the adverse case against the applicant.

66 As the decision to cancel the applicant’s visa was made in breach of the rules of natural justice, the decision was made without jurisdiction and is not a privative clause decision pursuant to s 474 of the Act. The amended application should therefore be granted on the above ground of procedural fairness.

Counsel for the Applicant:	HNH Christie

Solicitor for the Applicant:	Christie & Strbac

Counsel for the Respondent:	MT Ritter (appointed SC following hearing)

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	21 September 2004

Date of Judgment:	10 February 2005

(a)	a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b)	a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and
(c)	the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.’

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 54 OF 2003

1.	The amended application be granted.
2.	A writ of prohibition issue out of the Court directed to the respondent prohibiting her from further proceeding to act on the decision made by the then respondent on 17 January 2003 to cancel the applicant’s visa.
3.	A writ of certiorari issue out of the Court directed to the respondent removing into this Court to be quashed the said decision made by the then respondent on 17 January 2003 to cancel the applicant’s visa.
4.	The respondent pay the applicant’s costs of the proceeding.

JUDGE:	RD NICHOLSON J
DATE:	10 FEBRUARY 2005
PLACE:	PERTH

Federal Court of Australia

Jones v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 70 (10 February 2005)