Berryman v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 17 (22 February 2005)

Last Updated: 22 February 2005

FEDERAL COURT OF AUSTRALIA

Berryman v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 17

DENVER BERRYMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W 199 OF 2004


HILL, SUNDBERG and STONE JJ
22 FEBRUARY 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 199 OF 2004

BETWEEN:	APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	HILL, SUNDBERG and STONE JJ
DATE OF ORDER:	22 FEBRUARY 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s 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
WESTERN AUSTRALIA DISTRICT REGISTRY	W 199 OF 2004

BETWEEN:	DENVER BERRYMAN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	HILL, SUNDBERG and STONE JJ
DATE:	22 FEBRUARY 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

1 The appellant is a citizen of New Zealand who was born on 19 September 1979. He came to Australia with his family in 1980. Apart from brief absences, he has lived here since then. Between 1993 and 2002 the appellant accumulated a substantial criminal record. Its details are set out in table form in the primary judge’s reasons at [4]. All we need say is that his offences include serious offences such as aggravated burglary, burglary, and stealing, as well as other offences. In each of the years 1998, 1999, 2001 and 2002 he was sentenced to terms of imprisonment amounting to 12 months or more.

2 On 4 July 2002 an officer of the Minister’s Department sent the appellant a Notice of Intention to Consider Cancelling his visa under s 501(2) of the Migration Act 1958 (Cth) (the Act). The notice stated that his special category visa might be liable to cancellation by the Minister under s 501, a copy of which was attached to the notice. The notice went on:

"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 substantial criminal record and/or
•	Your past and present criminal conduct
•	Your past and present general conduct.

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’."

3 The appellant made a written submission dated 10 July 2002 (the appellant’s submission). After describing his family background and move to Australia, he recorded that when he was 17 he met Kylie Peters (Ms Peters). They have a child named Liana. He said that he and Ms Peters are in a continuing relationship, then in its sixth year. He had been in Australia for 22 years. He has no friends or family in New Zealand and did not know the way of life or culture there. All of his family are in Australia.

4 Ms Peters submitted a letter in which she confirmed that she and the appellant had been together for nearly six years. The letter contained these statements:

"I’ve worked for most of Liana’s young childhood and Denver has pretty much been the one to bring Liana up they have a very special bond together. He is very patient and has always got time for her. It’s been very hard on Liana with Denver gone as she’s ... Daddy’s girl ... Liana absolutely adores Denver, she goes off and draws him pictures ... brings home drawings ... it’s important that Denver feels apart with Liana’s progress at school as he was the one that mostly took her to Kindy and spent time with her there because I was working a lot of time."

5 Ms Peters’ mother wrote a letter in which she said:

"If Denver was to leave it would break my heart, and certainly his little girl, Liana. He is very close to her and at the moment Liana misses her Dad very much."

6 An Issues Paper was prepared for the Minister’s consideration. It described the sentences imposed on the appellant, and said it was open to the Minister to find that he had a substantial criminal record and therefore could not pass the character test. Under the heading "Discretion" it directed the Minister’s attention to the need to consider the exercise of his discretion to decide whether the appellant should be permitted to remain in Australia. It referred to the Minister’s Direction No 21 issued under s 499 of the Act to guide delegates and the Administrative Appeals Tribunal in the exercise of that discretion. The Direction does not bind the Minister.

7 The Issues Paper then considered a number of "primary considerations" derived from the Direction. The first was "Protection of the Australian Community". Under the sub-heading "seriousness and nature of conduct", it set out the appellant’s criminal record. It was put to the Minister that the offences were within the category of "a very serious offence" under par 2.6 of the Direction. The Minister was advised that it was open to him to find that the appellant’s conduct against the community was serious.

8 The Issues Paper then referred to the appellant’s submission and the letters from Ms Peters and her mother, and quoted from those documents. Under the sub-heading "likelihood that the conduct may be repeated", the Paper said it was open to the Minister to find that the appellant was at a medium risk of recidivism. Under the sub-heading "General deterrence", it was said that it was open to the Minister to find that cancellation of the appellant’s visa would serve as a deterrence to others considering committing similar offences.

9 Under the heading "The Expectations of the Australian Community" it was said that the offences are considered by the Australian Government to be very serious, and

"The Australian community expects non-citizens to obey Australian laws while in Australia and therefore it is open for you to find that the character concerns or offences are such that the Australian community may expect that Mr Berryman should be removed from Australia."

10 Under the heading "The Best Interests of the Children" the Issues Paper quoted from Art 3.1 of the Convention on the Rights of the Child" that "the best interests of the child shall be a primary consideration". It then referred to the appellant’s six year relationship with Ms Peters, to five year old Liana, quoted material parts of the appellant’s submission, and the letters from Kylie and her mother, and continued:

"[39] Should Mr Berryman’s visa be cancelled and he is removed to New Zealand and should his child accompany him, the educational facilities and standard of health support system in New Zealand is of a similar standard to that in Australia.
[40] No language barriers would exist for the child in New Zealand should she accompany Mr Berryman in the event of cancellation of his visa.
[41] No cultural barriers would exist for the child in New Zealand should she accompany Mr Berryman in the event of cancellation of his visa.
[42] It is open to you to find from the information given that the cancellation of Mr Berryman’s visa and his removal from Australia would have a detrimental effect on his child."

11 Under the heading "Other Considerations" the Issues Paper stated:

"In the Community Correction Officer’s Report, Annex G, dated 06.09.2001 it is stated that Mr Berryman has been in a ‘steady relationship’ for the past five years. It also states that he currently lives with his parents, 11 year old sister and a 6 year old nephew."

12 In the decision page attached to the Issues Paper appeared the Minister’s decision:

"I reasonably suspect that Mr Denver Maui Berryman does not pass the character test and Mr Denver Maui Berryman has not satisfied me that he passes the character test and I have decided to exercise my discretion under subsection 501(2) of the Act to cancel the visa, so I hereby cancel the visa."

13 On 8 November 2002 the appellant was sent a notice of cancellation of his visa, together with a copy of the Issues Paper which was said to set out the reasons for the Minister’s decision. On 6 December 2002 the appellant filed an application for judicial review of the Minister’s decision under s 39B(1A) of the Judiciary Act 1903 (Cth). Two grounds were pursued before the primary judge. The first was that the Minister did not take into account the best interests of the child as a primary consideration, and "in doing so without notifying the appellant failed to afford him procedural fairness". His Honour rejected this ground. The ground of appeal relating to this issue is not pursued, and accordingly we need not record the manner in which his Honour dealt with it.

14 The second ground was that the Minister relied on adverse material without giving the appellant an opportunity to respond, and thus failed to accord him natural justice. The adverse material is in par 47 of the Issues Paper set out at [11]. It was put to the primary judge that this extract suggests that the appellant and Ms Peters were no longer a de facto couple committed to living together to look after their child. The Community Correction Officer’s report was not provided to the appellant, and he was not given the opportunity to explain the temporary circumstances that gave rise to the information that he was living with his parents. It was said there had been a separation for two months while the couple found suitable accommodation. The question raised by the report was said to be an important factor in any consideration of the best interests of the child.

15 The primary judge set out the whole of the relevant statement, a summary of which appeared in par 47 of the Issues Paper:

"Berryman has been in a steady relationship for the past five years. He and his girlfriend have a four year old daughter together. He says this relationship is very supportive and he is very close to his daughter. Berryman currently lives with his parents, eleven year old sister and a six year old nephew. The relationship between Berryman and his parents is seen as being very supportive, a claim which has been confirmed by his mother."

16 The primary judge noted that no natural justice issue arose as to the contents of par 47 of the Issues Paper, and that what had to be considered was the text of the evidentiary document placed before the Minister, namely the report. His Honour continued:

"In my opinion, the adverse inferences for which counsel for Mr Berryman contends, do not exist. The terms of the paragraph quoted directly from the Community Correction Officer’s report are overwhelmingly favourable to Mr Berryman. In my opinion there was no practical unfairness arising from that matter which was in any sense likely to have affected the Minister’s decision."

17 The only ground of appeal that is pursued is that the primary judge

"erred in fact and in law in determining that the statement quoted at par 47 of the Issues Paper was favourable to the [appellant] (and the Community Correction Officer’s Report Annex G dated 6 September 2001 from which it was taken) when it contained the statement that the applicant was living with his parents and therefore by implication no longer living in a de facto relationship with the mother of his child or living with his child and that accordingly there was no practical unfairness to the applicant in failing to provide him with the Issues Paper or the Community Correction Officer’s Report Annex G dated 6 September 2001."

18 The appellant’s submission can be summarised as follows:

(a) the matters potentially favourable to the appellant which the Minister was likely to have taken into account in coming to his decision were, in order of importance, the relationship between the appellant and the child, his relationship with Ms Peters, the length of time he had been in Australia, and that his relations were all in Australia;
(b) the nature of the appellant’s relationship with Ms Peters, and whether they were merely boyfriend and girlfriend, or were indeed in a de facto relationship, was highly relevant;
(c) the information in the report was used in the Issues Paper to throw doubt on the claim that the parties were living together in a de facto relationship;
(d) the material was "adverse in the context and for the purpose that it was used", and natural justice required that the appellant have an opportunity to answer it.

19 The Issues Paper passage complained about must be viewed in context. The Issues Paper contains numerous references to the relationship between the appellant and Ms Peters. They include:

• extracts from Ms Peters’ letter in which she said that she and the appellant "have been together almost 6 years and we have a beautiful 5 year old daughter"
• a statement in the same letter that the appellant makes it possible for Ms Peters to go out to work because he takes care of everything at home
• a passage from Ms Peters’ mother’s letter that she has known the appellant for over six years, that he "was always there for me and my daughter and grand daughter", and if he were to leave it would break her and the child’s heart
• a statement that the appellant has been in a relationship for the past six years, and has a close relationship with his five year old daughter of that relationship
• a further extract from Ms Peters’ letter that she had worked for most of the child’s young childhood, and the appellant "has pretty much been the one to bring Liana up", and they have a very special bond
• in the consideration of "disruption", it is said that the appellant has been in a relationship with Ms Peters for approximately six years, that they intend to marry in the future and have another child
• in the same connection, a passage from the appellant’s submission is recorded, namely that he and Ms Peters "have been together 6 years this November", that they have a great relationship together, and he is lucky that she hasn’t left him "when the going gets tough"
• the statement in the Correction Officer’s report that the appellant has been in a "steady relationship for the past five years"
• the statement that the appellant claims that significant compassionate circumstances for remaining in Australia "are centred on the fact that he has spent nearly all his life in Australia, and that he has a long-standing relationship, a child and other family members as outlined above"
• several references to the appellant’s "girlfriend/de facto and child".

20 The unmistakeable message conveyed by the foregoing is that the relationship between the appellant and Ms Peters is a subsisting relationship. Indeed the Issues Paper concludes (as per the last dot point above) with the statement that "he has a long-standing relationship". All the passages summarised above are cast in the present tense. As against this, the appellant extracts one sentence from the Correction Officer’s report, ignores the context of the sentence in par 47 of the Issues Paper and, more importantly, the controlling context of the whole document. The claim that the information in the Correction Officer’s report was "used ... to throw doubt" on the assertion that the appellant and Ms Peters were living together in a de facto married relationship, is insupportable. A fair reading of par 47 does not convey the impression that the appellant and Ms Peters were not still together. In the light of the Issues Paper as a whole, especially the references collected in [19], it would be quite unreasonable to read par 47 in the manner for which the appellant contends. Assuming the viability of steps (a) and (b) of the summary of the appellant’s argument in [18], steps (c) and (d) are not made out. There is accordingly no factual basis for the claimed denial of natural justice.

21 The appeal must be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Sundberg and Stone.

Associate:

Dated: 22 February 2005

Counsel for the Appellant:	H Christie
Solicitors for the Appellant:	Christie & Strbac
Counsel for the Respondent:	LB Price
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 February 2005
Date of Judgment:	22 February 2005