FEDERAL COURT OF AUSTRALIA George v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 431 Migration Act 1958 (Cth) ss 501, 501(2), 501(3), 501(5) Osborne v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1113 Wang v Minister for Immigration & Multicultural Affairs [2002] FCA 167 NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 GAVIN SEAN GEORGE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W321 of 2002 RD NICHOLSON J 29 APRIL 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W321 OF 2002 BETWEEN: GAVIN SEAN GEORGE APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 29 APRIL 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. Upon the applicant's undertaking dated 28 April 2003 and his thereafter complying with the terms of such undertaking, the respondent whether by his servants, agents or howsoever otherwise, be restrained from continuing to detain the applicant in immigration detention under the Migration Act pending the hearing of this application or until further order. 2. The respondent be restrained from removing the applicant from Australia pending the hearing of this appeal or until further order. 3. Costs be reserved. 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 W321 of 2002 BETWEEN: GAVIN SEAN GEORGE APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE: 29 APRIL 2003 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant brings a notice of motion seeking to restrain the respondent from continuing to detain the applicant in immigration detention pending the hearing of his application, or until further order, and further from restraining the respondent from removing the applicant from Australia pending the hearing of that application or until further order. The jurisdiction of the Court to make the orders sought is not challenged for the respondent and is accepted as being within jurisdiction on prior authority. 2 The evidence before the Court on the interlocutory application are firstly two affidavits from the applicant, the first one sworn on 7 March 2003 and the second sworn on 27 April 2003. Additionally, evidence brought on behalf of the respondent comprises the affidavit of Ms McPherson sworn on 2 January 2003 and the affidavit of Mr Blade sworn on 28 April 2003. The case for the applicant places reliance also on that affidavit material led on behalf of the respondent. 3 The applicant has provided a revised undertaking that in the event of the interim relief being granted he would reside with his parents and that he would undertake reporting conditions to the departmental office and that his parents would deposit a bond in the sum of $2000 subject to forfeiture. 4 It is not disputed, and it is common ground, that the matter of the motion is to be determined by reference to the well-established tests of, firstly, whether there is an arguable case and, secondly, where the balance of convenience lies. 5 The factual circumstances which appear from the affidavit material are basically as follows. On 23 March 2001 the Department of Immigration and Multicultural Affairs ('the Department') sent a facsimile message to a senior constable in the Western Australian Police Department seeking a full criminal history in relation to the applicant. On 1 May 2001 that facsimile message was faxed back to the Department with the criminal record attached to it. Written on the front of the fax were the addition of a number next to the name of the applicant and at the side of the letter an address, being 9 Sykes Cove, Clarkson. The criminal record which was attached disclosed the fact that on 10 April 2001 the applicant had been sentenced for a series of offences involving a global sentence of 8 months. 6 On 2 October 2001, that being accepted as a date on which the applicant was released from his sentence of imprisonment, the Department sent a letter to the applicant at the address of 9 Sykes Cove, Clarkson. That letter was a notice of intention to consider cancelling his visa under subs 501(2) of the Migration Act 1958 (Cth) ('the Act'). The letter indicated that matters to be taken into account in considering the cancellation included his substantial criminal record and/or his past and present criminal conduct and his past and present general conduct. That letter was returned to the department on 30 November as 'Unclaimed mail.' The letter had been sent by registered post. 7 On 9 February 2002 the Western Australian Police responded to a departmental telephone conversation of 8 February 2002 in relation to the applicant. In that memo it was stated that the applicant was then residing at 42 Eucumbene Crescent in Joondalup and his contact phone numbers, being a mobile number and a home number, were provided. On 18 February 2002 the department sent a letter, not apparently by registered or certified means, to the applicant at 42 Eucumbene Crescent, Joondalup. That letter again was a letter stating the notice of intention to consider cancellation of the applicant's visa pursuant to subs 501(2) of the Act. The prior matters that were to be taken into account as previously stated, were repeated. 8 In his first affidavit the applicant states that as and from about March 2002 he resumed his former close relationship with a lady called Lynn and it was at that time that he went to live at the house of a long‑term friend and acquaintance at 42 Eucumbene Crescent, Joondalup, where he has continued to live until he was detained in November 2002. His evidence also is that he has never lived at 9 Sykes Cove, Clarkson, although he understands that Lynn lived there whilst he was in prison. He states further that as a result of a conviction for a breach of restraining order in July 2002 he was made subject to a 12‑month intensive supervision order which involved regular attendances at Relationships Australia under the supervision of the Western Australian Department of Justice. As a consequence he was regularly attending on a weekly basis at that place. 9 The applicant's evidence also states the position in relation to his two children, the mother of whom is Nikola Costar. He states that he cannot bear the thought of being permanently separated from them. While he has been in detention it has been difficult for her to bring them to him. He cannot imagine his life without his children. If his visa is cancelled and he is removed from Australia he states that will mean permanent separation. Nikola supports him wishing to remain in Australia. He says that his son Alex in particular is having difficulty in coping with his absence and has had problems at school. Further he states that the thought of being away from his children has made him feel depressed and suicidal and there was an incident where he threatened to commit suicide. He continues to feel depressed and strongly suicidal. 10 Additionally he states that on one occasion he was granted bail by a Magistrate, however, being unsure of his legal status he made inquiries of his solicitor and following receipt of advice to the effect that the Magistrate could not have released him from immigration detention the applicant contacted the respondent's department and arranged for them to collect him and to return him to detention where he now remains. 11 In his affidavit he again states, with reference to the affidavit of Ms McPherson, he has never lived at the address of 9 Sykes Cove and was not aware of that notice and was unable to respond to it. He similarly states that he commenced living at 42 Eucumbene Crescent in Joondalup in about March 2002 and continued living there until he was detained in November 2002. He states that he is now aware that the respondent is alleged to have sent him a notice dated 18 February 2002 at that address but he did not receive that notice and was not aware of it and so was unable to respond to it. He states that he did not receive any notice of intention to cancel from the respondent nor was he aware that such notice had been sent to him. He was therefore in a position where he was not required by the respondent to notify him of his current address and it did not occur to the applicant to do so. However, as a condition of his intensive supervision order he did notify the Western Australian Ministry of Justice of his address and any changes in his address and as previously stated had weekly meetings with his supervising case officer between July and November 2002. Additionally his parents have lived at the same address for 12 or 13 years. 12 In his second affidavit the applicant primarily provides evidence of the difficulties which his son Alex is having in relation to his school and sleeping and general behavioural problems. He attaches such evidence as is presently available in support of those matters. 13 Section 501(2) of the Act provides that the Minister may cancel a visa that has been granted to a person if (a) the Minister reasonably suspects that the person does not pass the character test and (b) the person does not satisfy the Minister that the person passes the character test. That subsection appears in a section which also provides in subs (5) that the rules of natural justice and the code of procedures set out in subdivision AB of Div 3 of Pt 2 do not apply to a decision under subs (3). Subsection (3) provides that the Minister may refuse to grant a visa or cancel a visa if he reasonably suspects that a person does not pass the character test and is satisfied that the refusal or cancellation is in the national interest. That statutory provision in subs (5) has no application to subs (2) and it is subs (2) which is the operative provision here. 14 The Department has issued instructions in the Migration Series ('MSIs') numbered as MSI-254 entitled 'The Character Requirement: Visa Refusal and Cancellation under Section 501(1)'. In clause 7.2.1 it is provided that when considering a decision to cancel a visa the code of procedure does not apply. This is because the code of procedure only applies to visa applications. It continues by stating that, in the absence of codified procedures, care should be taken to ensure that natural justice requirements are met. Policy guidance in relation to procedures to ensure that the visa holder receives natural justice is set out in 7.7 to 7.15 of the MSI-254. 15 Turning to 7.7.1 it is stated there that in general a notice of intention to cancel a visa under s 501 is to be given to a visa holder in writing and served on the visa holder personally by a departmental officer where possible. The clause continues by providing that where this is not possible it should be given either orally to the visa holder or sent by certified mail. In cl 7.7.2 three circumstances are stated in which a notice of intention to cancel may be given orally; namely, where the visa holder is overseas, has an immigration clearance, or has been located by compliance in the field. None of those are said to be applicable here. Clause 7.7.3 provides that normally the person should be given a written notice of intention to cancel. That clause also states that where notice is not served personally, a record must be kept as to the manner of service, eg. certified mail, and an acknowledgment of the receipt should be obtained. This is said to be because at a later date the department may need to show evidence that the notice was actually received. Further, it is stated that a visa cancellation decision is at risk of being declared invalid by a review authority or the courts if such evidence is not available. 16 Here it is contended for the applicant that it is arguable that there has been a breach of the requirements of natural justice because his visa has been cancelled and he has been detained in circumstances where he received no notice of the proposed cancellation and in consequence of which he was unable to have a fair opportunity of making submissions in regard to the cancellation. The consequence in particular which is said to be particularly pertinent is that the applicant thereby lacked any opportunity to make submissions to the Minister concerning his children so that the Minister could take those circumstances into account in exercising the power of cancellation. 17 For the respondent it is said, however, that on the authority of Osborne v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1113 that argument is simply not open. That was a decision of French J given on 9 September 2002. Mr Osborne's circumstances were that on 27 July 2000 he was interviewed at Canning Vale Prison by an officer of the Department. In the course of that interview he told the officer his mother resided at a certain address and that on his release on parole, he intended to move in with his mother. On 23 July 2001 an officer of the Cancellation and Detention Centre of the Department had sent a letter to him at that address. A further letter dated 4 September was sent by registered mail to the same address. In each, Mr Osborne was invited to make written comments by a certain date. No response was received to the letters. He was told by friends in September 2001 that a registered letter had been sent to him but he did not ask his mother for the letter because he was unaware that she had it. On 13 February 2002 the Minister decided to cancel Mr Osborne's visa. The cancellation decision was based upon a departmental submission in that the Minister was informed that Mr Osborne had been notified by mail at his residential address on 23 July 2001 and further notified on 4 September and had not responded. Reference was made in Mr Osborne's case to his criminal record and to sentencing remarks and to considerations relating to Mr Osborne's children. A notice of cancellation was then served on him and he was taken into immigration custody. 18 Mr Osborne lodged an application for review in which it was argued in the alternative that the decision of the Minister should be set aside on the ground that in deciding to cancel the visa, the Minister had failed to have regard in subs 501(2)(b) to the fact that there had not been afforded to Mr Osborne the opportunity to satisfy him that he passed the character test because there had been a failure to serve notice upon the applicant. 19 In his reasons at par 16, French J recounted that reliance was placed upon the decision of Mansfield J in Wang v Minister for Immigration & Multicultural Affairs [2002] FCA 167 which was one of a group of five cases heard on appeal under the heading of NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 on 15 August 2002. Wang's case involved the issue of revocation of a cancellation and the application of provisions in ss 129 to 131 of the Act. It was distinguished by French J on the basis that the case before him concerning Mr Osborne raised a different issue. In Mr Osborne's case the notices were sent to an address which the applicant had stated would be his address. Indeed, it was his address for three months after release. The difficulty in Mr Osborne's case arose because of the delay in sending the notice. When it was sent Mr Osborne was out of prison for some 10 months and had moved on. There did not appear to have been any attempt by any officer of the Department to ascertain his whereabouts. 20 In par 19 of his reasons French J stated that unlike the provisions in ss 129 and 131 considered in Wang, there is no express provision in the Act requiring notice to be given to a visa holder as a condition of the exercise of the Minister's power to cancel the visa under s 501. Nevertheless, prior notice to the visa holder, said French J, is to be implied as a necessary condition of the power because it could not be exercised under s 501(2)(b) unless the person does not satisfy the minister that the person passes the character test. French J said that it is not to be supposed that Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister's intention to cancel. Some process of notification is therefore contemplated, he said, even though the Act does not set it out. He was of the view that the regulations seemed to assume as much. In par 20 he continued by stating: 'The implied condition of notification is not absolute. It could not be. For otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires only that reasonable steps be taken to notify the visa holder. To send a notice of intended cancellation to his last known address is a reasonable step. When that last known address is the address of a close relative of the visa holder, in this case his mother, and with whom he had expressed his intention to resume living, then it is plainly a reasonable process.' In the concluding paragraph of his reasons French J stated that as a matter of law, the implied condition having been satisfied in Mr Osborne's case, there was no error of law on the part of the Minister in proceeding to make the cancellation decision. He concluded: 'There is therefore no occasion for the operation of the privative clause. Had there been, contrary to my finding, a failure to meet the implied condition of reasonable notification, then it is doubtful that the privative clause would have protected that decision against review. For such a case would be analogous to that in Wang in which notification was an integral part of the statutory scheme.' 21 It is on the authority of Osborne's case that the respondent says no arguable case can arise in relation to the present applicant. 22 The applicant's case makes three rejoinders to that. The first is that there are factual differences between the circumstances in which Mr Osborne appeared and those circumstances in which the applicant appears. Fundamentally in the case of the applicant it is submitted there is an entire absence of notice, whereas in the case of Mr Osborne there were communications between him and the Department. There are other factual differences, but those are the essence of them. 23 Secondly, it is said that the decision in NAAV has now been affected on appeal by the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. There it was held that the privative clause in the Act, s 474, did not attempt to oust the jurisdiction conferred on the High Court by s 75(5) of the Constitution and therefore was not invalid. Being valid, it is nevertheless necessary to consider whether it applies to the particular proceedings. It does not preclude consideration of whether there has been a failure to exercise jurisdiction or an excessive jurisdiction. In particular, it was held that a decision flawed for reasons of a failure to comply with the principles of natural justice is not a 'privative clause decision' within s 474(2) of the Act, that is, and the applicant's case relies substantially on it, it is now possible, as it was not when the matter was before French J, open to an applicant to fully argue issues of natural justice. 24 The third matter on which the applicant's case relies is the fact that it is arguable, it is contended, that MSI-254 gives rise to a legitimate expectation that the Act would be administered in the way set out in the MSI, that is, that the notice to the applicant would have been dealt with in accordance with the clauses of that matter in the way to which I have referred them. I accept the submissions for the respondent that those clauses, 7.7.1 and subsequent clauses, are not absolute in their formulation but they do not need to be absolute in order to enable such an argument to possibly arise in relation to them. 25 In response to each of the first two matters it is arguable as the respondent stated that the ratio of French J's reasoning, namely, the implication of a condition, is such that it would preclude the natural justice argument arising. If it is correct that the implied condition is part of the statutory environment then natural justice may be precluded. Secondly, I should say that the respondent submits in relation to the concluding paragraph of French J that it is clear from that that he was not influenced in reaching the view which he did by NAAV and that the view of the High Court expressed in S157 does not change the ratio in relation to the matters raised in that paragraph. 26 This matter is not clear-cut. I have to bear in mind what the test is that I must apply. The test that I must apply on the first limb of the motion is whether there is a serious issue to be tried in the sense of an arguable case. In my view there is an arguable case on the facts and in relation to the MSI and as to the effect, if any, of S157. I reach that view in no way being of the opinion that the decision of French J is plainly wrong and should be set aside. I reach no view to that effect. It is sufficient that I reach the view that the case for the applicant is arguable, that is how the test is formulated. Whether or not Osborne endures in the face of S157 in the facts of this case or in the face of the MSI-254 is a matter in my view to be argued more fully and it is open to argument. 27 I then turn to the balance of convenience. For the applicant it is said that I should have in mind that the applicant has been held in detention for some time particularly arising from the fact that there have not been reasons provided to enable his case to advance despite that having been the subject of an order on 27 February 2003. I am asked to take into account that much of his criminal record involves breach of restraining orders, that the mother of his children does not want him removed, and to weigh the evidence relating to the present difficulties of his son Alex and his other child in particular. I am also asked to weigh the fact that he voluntarily, as it were, returned to immigration detention having been wrongly released and accepting the wrongfulness of that release and to take into account the terms of the undertaking which is given. 28 The case for the respondent of course takes the view that the balance of convenience is not reached because of the effect of Osborne's case, but I have already stated my view on that matter. I am, by the respondent, urged to take into account the prior breach of court orders, the history of that, the fact that the mother's evidence is not in an affidavit form in particular, and to those matters I give some weight. 29 I do not consider that the arguability of the case is so strong that it can count in the balance of convenience. For the reasons I have previously given on the question of arguability, I consider that an issue arrived at on balance and I do not give it further weight in the balance of convenience. 30 I consider the balance of convenience is nevertheless satisfied and that therefore that requirement in support of the motion is met. 31 For those reasons I would accede to the motion on the basis of the undertaking as revised and I would also seek to make directions to advance the hearing of the applicant's case, the matter having suffered some delay, as I have previously recounted. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 8 May 2003 Counsel for the Applicant: Mr HNH Christie Solicitor for the Applicant: Christie & Strbac Counsel for the Respondent: MR MT Ritter Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 April 2003 Date of Judgment: 29 April 2003