Herrera v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 314 (25 November 2004)

Last Updated: 25 November 2004

FEDERAL COURT OF AUSTRALIA

Herrera v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 314

MIGRATION – relevant consideration – asserted failure on the part of the Minister to consider appellant’s subjective state of mind at the time the visa cancelling offence was committed – consideration not compulsorily relevant – in any event, assertion not made out, inference could be drawn that the Minister considered the appellant’s state of mind – appeal dismissed



Migration Act 1958 (Cth) s 501(2), 501G(i)(e)



Commissioner of Taxation v Glennon [1999] FCA 297; (1999) 90 FCR 538 cited
Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 applied
Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 cited
Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 applied
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 applied













RODRIGO ANTONIO HERRERA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 738 OF 2004




SUNDBERG, FINKELSTEIN & HELY JJ
25 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 738 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RODRIGO ANTONIO HERRERA APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SUNDBERG, FINKELSTEIN & HELY JJ
DATE OF ORDER:	25 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.














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 738 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RODRIGO ANTONIO HERRERA APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	SUNDBERG, FINKELSTEIN & HELY JJ
DATE:	25 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 The appellant appeals from a decision of a judge of this Court dismissing an application for prerogative relief in respect of a decision made by the then Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’) on 17 January 2003. The Minister decided on that date to cancel the appellant’s Permanent Resident visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (‘the Act’).

2 The only ground of appeal pressed by the appellant’s counsel is ground 3, as follows:

‘3. The respondent failed to consider a relevant consideration, being whether the appellant knew the law in relation to cancelling visas under s 501 before undertaking an action which resulted in his visa being cancelled, giving rise to jurisdictional error. Sackville J erred in failing to identify this point.’

3 The ‘point’ is not one which is identified in the grounds of the amended application which was before the primary judge. Nor is the ‘point’ one which was put to the primary judge in submissions. No doubt this explains why the error attributed to the primary judge in ground 3 is a failure to identify the ‘point’ on which the appellant now seeks to rely.

4 The appellant was represented by counsel at first instance. In the ordinary case, it is no part of the function of a primary judge to identify ‘points’ which have not been taken in the originating process, or put to the primary judge by way of submission. A primary judge does not commit any error in failing to deal with a matter not before him: c/f Commissioner of Taxation v Glennon [1999] FCA 297; (1999) 90 FCR 538 at 556-558.

5 In any event, the ‘point’ is without substance. Section 501(2) of the Act confers a discretion on the Minister which is, in terms, unconfined. The Minister is not bound to take a particular matter into account in the exercise of that discretion unless an implication to that effect is to be found in the subject matter, scope and purpose of the statute: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40 (Mason J). Failure to take into account a particular consideration cannot constitute jurisdictional error, unless the consideration is one which, on the proper construction of the Act is ‘made compulsorily relevant’: Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at 423; Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at 510-512. The consideration on which the appellant relies is not of that character. The Minister might properly have chosen to take that consideration into account, but there is no foundation for a conclusion that on the proper construction of the Act the Minister was obliged to do so.

6 The appellant submitted that the Minister was obliged to take the consideration identified in ground 3 into account ‘as a feature of desirable decision making’ on a matter which was of considerable importance to the appellant. Reliance was placed upon Peko Wallsend, and upon Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 in support of that submission, but neither of those cases supports it. A decision maker is not obliged to take a matter into account just because a Court considers that it would be conducive to desirable decision making for account to be taken of that matter.

7 Further, a document entitled ‘Issues for Consideration of Possible Cancellation of Permanent Resident Visa under s 501(2) of the Migration Act 1958’ (‘the Issues Paper’) was prepared by the Department of Immigration & Multicultural & Indigenous Affairs (‘DIMIA’) for consideration by the Minister. The Issues Paper included the following;

‘[26] Mr Herrera has not previously been warned about the risk of visa cancellation or deportation.

...

[36] Most of Mr Herrera’s criminal convictions have been committed for the sole purpose of obtaining funds to support his drug habit. And although he has in the past tried to stop taking drugs as stated by him, with no success, nothing before the department would indicate that Mr Herrera would not re-offend. However, in his favour is his youth and as stated by him the possibility of being removed from Australia has provided him with a "wake up call". Mr Herrera states that the latter has been the impetus for wanting to change, that it has opened his eyes and to quote his words, "made me think".

...
[48] In his response to the department, Mr Herrera makes the following comments in relation to you personally deciding his case:

"... I never thought that the things I have done were so serious that I would get kicked out of the country but this has been a wake up call for me to pull up and get my head together. I hope you understand."’

8 Part of the appellant’s complaint at first instance was that the Minister had not set out the reasons for his decision as required by s 501G(i)(e) of the Act. The primary judge found that the Issues Paper and the decision record did not set out the reasons for decision as required by s 501G(i)(e), but that non-compliance with s 501G(i)(e) of the Act does not constitute a jurisdictional error warranting the grant of prerogative relief. No challenge is made to these findings on this appeal.

9 As counsel for the appellant properly and frankly acknowledged, the failure of the Minister to provide reasons for his decision means that the appellant faces a difficulty in establishing, as a matter of fact, that the Minister failed to take into account the matter of which the appellant now complains.

10 In any case, the Issues Paper was before the Minister, and the decision record signed by the Minister records that he had considered ‘Rodrigo Herrera’s comments’. Those comments are the source of the matter recorded in par 48 of the Issues Paper, extracted above.

11 On this basis, we are satisfied that the Issues Paper and the decision record provide a sufficient evidentiary basis for an inference that the Minister took into account the fact that the appellant was ignorant at the time of commission of the relevant offences of their potential immigration consequences.

12 Thus the appellant has not established that the Minister failed to take the matters of which the appellant now complains into account, even assuming (contrary to our finding) that the Minister was obliged to do so.

13 The appeal should be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 25 November 2004

Counsel for the Appellant:	B Zipser
Solicitor for the Appellant:	Turner Freeman
Counsel for the Respondent:	R Bromwich
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 November 2004
Date of Judgment:	25 November 2004