Ferguson v Minister for Immigration & Multicultural Affairs [2001] FCA 1055

FEDERAL COURT OF AUSTRALIA

Ferguson v Minister for Immigration & Multicultural Affairs [2001] FCA 1055 MIGRATION – refusal of visa on character grounds – whether Minister had regard to all additional relevant information given by visa applicant. Migration Act 1958, ss 54(1)(2), 55(1)

Neil ferguson v minister for immigration & multicultural affairs N 851 of 2000 WHITLAM J 6 AUGUST 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 851 of 2000

BETWEEN: Neil Ferguson

APPLICANT

AND: Minister for Immigration

and Multicultural Affairs

RESPONDENT

JUDGE: Whitlam J

DATE OF ORDER: 6 AUGUST 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's 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 851 of 2000

BETWEEN: Neil Ferguson

APPLICANT

AND: Minister for Immigration

and Multicultural Affairs

RESPONDENT

JUDGE: Whitlam J

DATE: 6 AUGUST 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 21 June 2000 the respondent, the Minister for Immigration and Multicultural Affairs, made a decision under s 501(1) of the Migration Act 1958 ("the Act") to refuse to grant a visa to the applicant, Neil Ferguson. This is an application by Mr Ferguson under s 476(1) of the Act to review the Minister's decision. 2 The visa in question was a spouse class visa, the application for which was made on 26 May 1999 in England. Mr Ferguson is a British national. He claimed to be in a de facto relationship with Jacqueline Sharmalee Pereira. Ms Pereira was at the time an Australian permanent resident. She has since become an Australian citizen. 3 Mr Ferguson's visa application was received at the Australian Consulate in Manchester under cover of an eleven-page letter dated 11 May 1999 from Matthew Zagor, a migration agent from a Sydney firm called Playfair Immigration. The application itself was completed with the help of Petra Playfair, a migration agent from the same firm. Mr Zagor enclosed with his letter a considerable volume of "documentation" in support of Mr Ferguson's visa application. 4 One of the enclosures was a sixteen-page submission by Mr Zagor relating to Mr Ferguson's character. This addressed public interest criterion 4001 in the light of Mr Ferguson's conviction for an offence committed in 1993 under the Drug Misuse and Trafficking Act 1985 (NSW). 5 Correspondence ensued between Mr Ferguson's case officer at the Consulate, Playfair Immigration and Mr Ferguson himself. This touched on police clearances from the Netherlands and Canada, where he had previously lived. In a letter to his case officer dated 16 November 1999, Mr Ferguson wrote about having just spent six weeks in Europe with Ms Pereira and her son. 6 Mr Ferguson's visa application was then transferred to the Australian High Commission in London for further processing. Ms Pereira sent to that address a four-page handwritten letter dated 2 December 1999 in support of the application. On 20 December 1999 Mr Ferguson also wrote to Australia House, referring to the fact that he completed his medical report on 2 December 1999 and "broach[ing] personally the obvious consideration as regards my character." Mr Ferguson and Ms Pereira were married on 27 January 2000 in Indonesia according to the rites of the Protestant Christian Church in Bali. 7 On 19 April 2000 the Australian High Commission wrote to Mr Ferguson and Playfair Immigration providing an opportunity to comment before the Minister or his delegate considered whether to refuse Mr Ferguson's visa application under s 501(1) of the Act. In the letter it was pointed out that Mr Ferguson was required to satisfy public interest criterion 4001. The full text of s 501 was attached together with a copy of Direction No. 17 given by the Minister under s 499 of the Act. 8 Ray Turner, a solicitor from Sydney, responded on behalf of Mr Ferguson. His response was divided into six parts: (1) an eight-page letter dated 19 May 2000 described as legal submissions, (2) copies of marriage certificates, (3) wedding photographs, (4) a bundle of "references and supporting documents", (5) copies of pieces of Mr Ferguson's correspondence with Ms Pereira or her son, and (6) the judge's sentencing remarks on Mr Ferguson's conviction. 9 A minute was prepared for the Minister seeking his decision on possible refusal under s 501 of the Act. This minute was signed by an Assistant Secretary of the Department of Immigration and Multicultural Affairs ("the Department") on 2 June 2000 and submitted to the Minister through a First Assistant Secretary of the Department on 13 June 2000. The Department's papers attached to the minute were divided into five parts. Part A set out certain personal and visa details for Mr Ferguson. Part C dealt with the character test defined by s 501(6) of the Act. It stated that it was open to the Minister to find that Mr Ferguson had not satisfied him that he passed the character test because he had a substantial criminal record as defined by s 501(7) of the Act. Part D dealt with the exercise of the Minister's discretion under s 501(1) to refuse to grant the visa. (This part contained no recommendation.) Part E provided for the Minister to give his decision by indicating whether or not he agreed with certain results. Attached to the Departmental papers were all six parts of Mr Turner's response together with copies of Ms Pereira's handwritten letter dated 2 December 1999 and Mr Ferguson's letter dated 20 December 1999. The minute appears to have been sent to the Minister's office on 20 June 2000, and the next day the Minister indicated in Part E that Mr Ferguson had been unable to satisfy him that he passed the character test and that the visa should be refused. The Australian High Commission wrote to Mr Ferguson on 6 July 2000 to inform him of the Minister's decision. 10 Mr Ferguson's present application to the Court rests on the ground specified in par (a) of s 476(1) of the Act. His counsel submit that the Minister did not observe the requirement in s 54(1) of the Act. Section 54 was recently described in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889 as a "key provision" by Gaudron J (at 905) which, according to McHugh J (at 911), imposes "a mandatory duty on the Minister". Relevantly, ss 54 and 55 of the Act provide: "54 (1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. (2) For the purposes of subsection (1), information is in an application if the information is: (a) set out in the application; or (b) in a document attached to the application when it is made; or (c) given under section 55. (3) … 55 (1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. (2) …" 11 It is common ground that Mr Zagor's letter dated 11 May 1999 and certain of its enclosures were not attached to the Departmental minute submitted to the Minister. The documents, copies of which were not given to the Minister, included Mr Ferguson's visa application, Ms Pereira's sponsorship, statutory declarations made by each of them on 12 April 1999 and Mr Zagor's character submission. Counsel for Mr Ferguson rely on the fact that this material was not put before the Minister to establish that he did not have regard to "all of the information in the application" for the purposes of s 54(1) of the Act. 12 I may say at once that, with the exception of the approved form of sponsorship, I do not think any of the documents so relied on were "attached to the application" within the meaning of s 54(2)(b). The word "application" refers to the approved form of application: see ss 45(2) and 495 of the Act, reg 2.07 of the Migration Regulations 1994 ("the Regulations") and items 1129 and 1220A of Schedule 1 thereto. The kind of documents that may be "attached" to the application is dictated by the approved form itself. It is not open to a visa applicant to attach any document he or she wishes. The documents relied on in the present case may contain written information given under s 55, but that section requires such information to be "additional relevant information". 13 In their submissions, counsel for Mr Ferguson identify their client's "major claims" as relating to "his relationship with Ms Pereira and her son, the circumstances of the offence in question, his rehabilitation, and the very positive esteem in which he was held by members of his local community." It is said that these claims were set out in some detail in the material that was not placed before the Minister. Counsel were, however, not so forthcoming in identifying with any precision the "relevant information" to which the Minister thus allegedly failed to have regard. Mr Zagor's letter and submission were said to be important because it presented Mr Ferguson's case for a visa in a "coherent and cogent form". In particular, it was said that information in Ms Pereira's statutory declaration explained a reference by Mr Turner to "trauma which she has experienced". Both statutory declarations, it was submitted, contained information about the deponents' relationship that was merely "updated" in their letters of December 1999 which were put before the Minister. 14 The relevance of information may be determined by the criteria for the visa which is the subject of an application. In the present case Mr Zagor's representations related to only two criteria: the spouse criterion and the character criterion. A brief chronology of events will suffice to show that both criteria presented problems for his client. 15 Mr Ferguson entered Australia on a visitor's visa on 9 January 1993. He had previously visited Australia in 1990, 1991 and 1992 and had stayed in each of those years for about three months. On 18 June 1993 Mr Ferguson was arrested and charged in connexion with the supply of a prohibited drug, lysergide, which is commonly known as LSD. He allegedly made telephone calls from Brunswick Heads to contacts in Amsterdam, where he has previously lived, in order to arrange the supply of the drugs. Mr Ferguson was allowed bail. At the time he was 41 years old and married to Stacey Ferguson, from whom he apparently separated shortly after his arrest. Mr Ferguson took up residence in the Byron Bay area, where he worked as a film-maker. 16 In August 1996 Mr Ferguson met Ms Pereira, who also lived in Byron Bay. Ms Pereira was separated from her husband and was living with their seven-year old son. Mr Ferguson and Ms Pereira commenced to live together in February 1997. 17 Mr Ferguson's trial on the drug charge was eventually fixed to commence on 2 February 1998. However, when arraigned on that day, he pleaded guilty. On 27 February 1998 he was convicted and sentenced to two years' imprisonment with a minimum term of one year. During Mr Ferguson's incarceration the prison authorities accorded Ms Pereira de facto status. He was released on parole on 26 February 1999 and left Australia on 17 April 1999. 18 When Mr Zagor wrote his letter dated 11 May 1999, both Mr Ferguson and Ms Pereira were still legally married to other persons and they had cohabited for only a year before being obliged to live apart the next year whilst Mr Ferguson was in prison. Not unsurprisingly, therefore, Mr Zagor submitted a large number of statutory declarations in the Department's approved form from acquaintances of the couple giving reasons for their belief that the relationship was genuine and continuing. These declarations were made a month or so before Mr Ferguson's release from prison. Also enclosed with Mr Zagor's letter were copies of correspondence exchanged during his imprisonment which, as I have mentioned above, was later included in Mr Turner's response. 19 The character requirements of public interest criterion 4001 presented a different problem in the light of Mr Ferguson's past criminal conduct. This issue was addressed in Mr Zagor's separate submission, which was also supported by references from a number of individuals. These references were prepared in March and April 1999 and were specifically directed to the question of Mr Ferguson's conviction. In addition, Mr Zagor submitted a selection of the character references which had been prepared in February 1998 and submitted to the sentencing judge prior to conviction. On the character issue, Mr Zagor specifically made a cross-reference to his representations on the spouse criterion in support of the proposition that Mr Ferguson was a "loving and responsible step-father and de facto husband". 20 Much of Mr Zagor's character submission addressed the law as it then stood. Mr Zagor acknowledged that the law would change on 1 June 1999, and he assumed that the then existing policy would continue in respect of the exercise of discretion following a negative character finding. The law did change on 1 June 1999. The amendments made by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 came into effect, and a new character criterion was substituted in clause 4001 of Part 1 of Schedule 4 to the Regulations. Most importantly, on 16 June 1999 the Minister gave Direction No. 17, which laid down a new policy. 21 Under the Act's new s 501 there was no question of Mr Ferguson passing the character test. Mr Turner accepted that position and, in his submission of 18 May 2000, addressed only what he described as the "residual discretion" by reference to Direction No. 17. This was also the approach adopted in Part D of the Departmental papers submitted to the Minister. (At this stage satisfaction of the spouse criterion was simply not a live issue. Mr Ferguson and Ms Pereira were legally married. Further, in the time since Mr Ferguson had been obliged to leave Australia so as to pursue his visa application, Ms Pereira and her son had spent six weeks with him in Europe and three weeks with him in Bali.) 22 Direction No. 17 required that, in considering the issue of visa refusal, the compassionate claims of Ms Pereira and any hardship which would be caused to her by such a refusal be taken into account. Accordingly, in my opinion, the Minister was obliged under s 54(1) of the Act to have regard to all of the relevant information given by Mr Ferguson on these topics. 23 Counsel for Mr Ferguson submit that Mr Zagor's "story" on the nature of the relationship needed to be "re-told" in order to understand the emotional vulnerability of Ms Pereira. In particular, it is said that the statutory declarations by Mr Ferguson and Ms Pereira were needed to explain the course of their relationship during his imprisonment, including her "trauma" to which Mr Turner made reference. The relevant information was, they contend, not extracted or summarized in the Departmental papers. 24 In fact, the Departmental papers extract what Mr Turner actually said about Ms Pereira's "emotional circumstances", namely, that they were "set out in the attached references, statements and other documents". Those attachments to Mr Turner's letter were, as I have earlier mentioned, put before the Minister. They included a report dated 11 February 1999 from two general practitioners in Byron Bay giving details of Ms Pereira's mental and emotional decompensation following Mr Ferguson's imprisonment and of her admission to hospital following a suicide attempt on 14 May 1998. One of the referees, John Vidyasagar Dass, also gives details of this episode. These documents give much more information on this topic than Ms Pereira's statutory declaration. 25 There was also put before the Minister the correspondence in the fifth part of Mr Turner's response. This comprised over 50 pages of letters exchanged during Mr Ferguson's imprisonment. Mr Ferguson's letters are labelled as letters of support. He has signed them "Praghosh". (This may be an attempt to render phonetically the Hindi word for "light": see The Oxford Hindi-English Dictionary, ed RS McGregor, OUP (1993), p 652.) In her letters to Mr Ferguson, Ms Pereira has addressed him simply as "P". I have read all this material. (I may assume that the Minister did too. A contrary conclusion is certainly not to be inferred from the unfavourable exercise of the discretion. Ms Pereira's compassionate claims are only one of the considerations to be weighed in what must have been a very difficult balancing exercise.) There is, in any event, no more relevant information to be gathered about this period in Ms Pereira's life from Mr Zagor's letter or her own statutory declaration. 26 Counsel for the Minister carefully traced the information on all the "claims", identified by their opponents. I am grateful for their assistance. Ultimately, however, the issues were posed for the Minister's exercise of discretion in accordance with Direction No. 17. On those issues I am satisfied that the Minister had regard to all of the relevant information given by Mr Ferguson. 27 The alleged ground of review is thus not made out. The application will be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.