FEDERAL COURT OF AUSTRALIA Kumar v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 339 PREM KUMAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N339 of 2003 JACOBSON J 22 MARCH 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 339 of 2003 BETWEEN: PREM KUMAR APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: JACOBSON J DATE OF ORDER: 22 MARCH 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be 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 339 of 2003 BETWEEN: PREM KUMAR APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: JACOBSON J DATE: 22 MARCH 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Minister under s 501(2) of the Migration Act 1958 (Cth) ("the Act") to cancel the applicant's permanent residency visa. The Minister cancelled the visa on 15 October 2002. He did so having considered that the applicant did not pass the character test referred to in s 501(6) of the Act. 2 Mr Killalea of counsel, who appeared for the applicant, filed in Court this morning an amended application. The amended application abandoned all previous grounds relied upon in the earlier application. Only one ground was put to me this morning which was that the applicant had been denied procedural fairness because it was said that he had not been given an opportunity to comment on material set out in sentencing remarks made by Judge Goldring on 27 April 2001. His Honour sentenced the applicant to a term of imprisonment for the offence of aggravated robbery, although the charge was described as robbery in company. The applicant had pleaded guilty to the offence before the Magistrate. He adhered to his plea before Judge Goldring and asked the Judge to take into account certain matters in sentencing the applicant, as his Honour did. 3 The present case is different from many of the visa cancellation cases which come before this Court because a statement of reasons, separate from the usual issues paper, was provided by the Minister on 29 August 2003. Mr Killalea focuses in particular upon the reference to Judge Goldring's remarks in the statement of reasons. The substance of the argument which was put before me turns upon what the Minister said in [17] of the statement of reasons which I will set out in full as follows: "I note that (sic) comments made by Judge Goldring which attribute Mr Kumar's offences to his substance abuse. I also note that Mr Kumar has expressed his desire to remain drug free". 4 Mr Killalea submits that Judge Goldring did not, in his sentencing remarks, attribute the applicant's offence to substance abuse. He says that the attribution of the offences to substance abuse was an error because in a pre-sentence report which was before the Minister when he made his decision in 2002, a different explanation was given. The report states that the behaviour was contributed to by attempts to secure money for the applicant's heroin dependent friends rather than for the applicant's own heroin addiction. 5 Mr Killalea submitted that the applicant was not provided with Judge Goldring's remarks and that he was therefore not given an opportunity to comment on them. 6 The relevant background facts may be stated briefly. The applicant is a citizen of Fiji. He was born in Suva on 7 May 1981. He arrived in Australia on 29 June 1996 and was the holder of a permanent residency visa on secondary dependent spouse grounds. On 2 April 2001, the applicant was sentenced by Judge Goldring at Campbelltown District Court for the offence of robbery in company to a term of imprisonment of 3 years, thereby bringing the sentence within the provisions of s 501(7)(c) of the Act. Judge Goldring sentenced the applicant to three years imprisonment with a non-parole period of 18 months. 7 On 3 May 2001 the applicant was sentenced at Liverpool Local Court for two further offences which each carried a term of imprisonment of 12 months. These were driving while disqualified and breaking and entering a building with intent to commit a serious crime. Both of those sentences were to be served concurrently with each other and concurrently with the sentence for aggravated robbery. 8 On 1 August 2002 the Department wrote to the applicant who was then in detention in Silverwater Correctional Centre notifying him that his visa may be liable for cancellation under s 501 of the Act. The relevant grounds were stated to be the applicant's substantial criminal record and his past and present criminal conduct. Reference was made to subparagraphs 501(6)(a) and 501(6)(c)(i) of the Act. 9 The applicant was advised in the letter that the Minister would be making the decision personally and he was informed that before the Minister considered whether to cancel the visa he was provided with an opportunity to comment. The matters to be taken into account by the Minister were said to include the following: · Your criminal record. A copy is attached for your information. · The Judge's comments. 10 A copy of the applicant's criminal record was attached. It comprised a number of convictions in the Children's Court and Local Courts. It is unnecessary to set out the details. It also includes the charge of robbery in company for which the applicant was sentenced by Judge Goldring. The record also refers to the applicant's appeal from Judge Goldring to the Court of Criminal Appeal. It appears from the document that on 20 March 2002 the Court of Criminal Appeal ordered that the time for lodging an application for leave to appeal be extended but that leave to appeal against the severity of the sentence was refused. 11 On 1 August 2002 the applicant signed a confirmation of receipt of the documents sent to him by the Department on that date. The signed acknowledgment includes an acknowledgment of receipt of the applicant's criminal record. 12 The applicant responded to the Department's letter by completing a questionnaire which was received by the Department on 6 August 2002. The applicant, in answer to a question as to whether he agreed that he had a substantial criminal history agreed that he did have such a record. The following question and answer appear on page 5 of the questionnaire: "What is your current offence and the circumstances? Robbery in Company. Within the company of a group of youths that stole a mobile phone. What other offences do you have, and the reasons for them? Driving while disqualified – Work commitments Malicious damage – family dispute Aggravated Robbery – Alcoholic influenced actions." 13 The applicant was in no doubt as to what his current offence was because he stated, correctly, that it was "robbery in company". It also referred to the theft of the mobile phone. In his answer to the question about other offences the applicant again included reference to the offence of aggravated robbery which seems to be a further reference to the offence to which he was sentenced by Judge Goldring. I note that in his answer he says that alcohol influenced his actions rather than drugs or substance abuse. 14 In his sentencing remarks Judge Goldring made the following observations: "Mr Kumar, who is now twenty, nearly twenty one, was born in Fiji and came to Australia in 1996. He finished his schooling here. He has been working but he has also developed a fairly heavy drug habit. At first, he did not admit to the Probation Officer that he used drugs but he has now admitted that and he is seeking to do something about it, partly as a result, I should say of the birth of his child earlier this year. He now feels that there are added responsibilities and he has got to do something about his child. It is not unusual for people who become parents to suddenly realise that their life has got to change." 15 His Honour accepted that the applicant pleaded guilty at the earliest opportunity. 16 His Honour observed that the victims of the robbery were two young teenage boys who were on their way home from school and that their wallets and mobile phones were taken. His Honour said that the offence was a serious one and that the victims were put in fear. 17 His Honour said that while he did not regard the offence as being the most serious of its type and that the applicant's previous record of offences was as a juvenile, he did have to look carefully at the expectation of the community that aggravated robberies of this type would be dealt with properly. His Honour also referred to: "… the fact that he seems to have come to terms with his drug problem, at the prospects of his rehabilitation." 18 His Honour said that the prospects of rehabilitation were matters that affect only the length of the non-parole period but he said that he was satisfied there was no alternative to a sentence of full-time custody for the offence. As I have said his Honour then sentenced the applicant to three years imprisonment and he fixed an 18 month non-parole period. 19 Mr Killalea relied upon the statement of principle made by a Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592. The passage on which he relied was referred to with approval by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 77 ALJR 1829 ("Palme") at 22: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question." 20 It seems that the remarks which Judge Goldring made in sentencing the applicants were based upon what was put to his Honour on the question of mitigation and that that was predicated upon the assumption that the explanation for the offence was the applicant's addiction to drugs. This seems to me to be plain from the passage of Judge Goldring's remarks which I have set out at [14]. It also seems to be clear from the remarks that I have set out at [17] in the shorter quote from his Honour's judgment in which he referred to the fact that he had to take into account that the applicant seemed to have come to terms with his drug problem. That was a matter to which his Honour referred on the question of the prospects of the applicant's rehabilitation. 21 I do not see how it could reasonably be said that the matters referred to in [14] and [17] were put to his Honour other than upon the footing that the explanation for the offence was the applicant's addiction to drugs. His Honour took that into account because he referred to the fact that it was not unusual for a person such as the applicant, when the person becomes a parent, to realise that it was necessary to change their previous attitudes; that is to say, to overcome drug addiction. 22 I think it is clear enough that the remarks on sentencing were not provided to the applicant by the Department. I would draw that inference from the fact that the letter of 1 August 2002 did not state that a copy was attached. By contrast the letter stated that the criminal record was attached. Nevertheless, in my opinion in the circumstances of this case procedural fairness did not require Judge Goldring's remarks to be provided to the applicant. 23 It is well established by cases such as Kioa v West (1985) 159 CLR 550 that the Minister was required to bring to the applicant's attention the critical factors on which he relied and to give the applicant an opportunity to comment. 24 In my view, it is clear that the critical factor was provided to the applicant in the letter of 1 August 2002 and that the applicant was given an opportunity to comment on the Judge's remarks. Mr Killalea submitted that it was not plain from the letter that the reference to "the Judge's comments" was to Judge Goldring's remarks. However, the applicant's criminal record which was attached to the letter indicated that the only judge before whom the applicant appeared was Judge Goldring and of course also before the Court of Criminal Appeal on the appeal on the issue of severity of sentence. All the other appearances were before Magistrates. 25 I have taken into account the fact that the applicant was in Silverwater Correctional Centre when he received and responded to the letter and I have also taken into account, as Mr Killalea says I should, the applicant's level of education and ability to deal with the letter. However, it seems to me that the answer to the questionnaire which I have set out above indicates that the applicant plainly understood that the relevant offence was that of robbery in company and he must therefore have been aware that what was to be taken into account by the Minister was Judge Goldring's comments on that offence. 26 Moreover, the applicant was present when Judge Goldring's remarks were made and must have known what was said. In any event, an appeal was taken, as I have said, to the Court of Criminal Appeal on the question of severity of sentence. In my view it would not have been possible for the appeal to have been conducted without the applicant being aware of the sentencing remarks. Indeed, it would not have been possible for the appeal to have been conducted without the sentencing remarks being put before the Court. 27 In any event, it was perfectly open to the applicant to ask for a copy of the Judge's comments if he was not clear what the Judge's comments were to which reference was made in the letter of 1 August 2002. 28 The first occasion on which the point has been taken that the Judge's comments were not supplied was in Mr Killalea's submissions this morning. I do not in any way criticise him or his legal advisers for this but the reasons for decision of the Minister were given on 29 August 2003. The failure to make the point prior to today that the applicant had not been supplied with the Judge's sentencing remarks indicates that it was one which did not previously appeal to the applicant or his legal advisers and it is a matter which I think I am entitled to take into account. 29 In any event, even if I am wrong, it seems to me that the reasons indicated by the Minister at [17] of his statement of reasons were, if Mr Killalea is correct, based on a more favourable position than would otherwise be warranted. This is because there are only two possibilities. Either the applicant put forward before Judge Goldring mitigating circumstances consisting of substance abuse or he did not. If he did not put forward substance abuse as an explanation for the offence then the approach taken by the Minister was one which was more favourable to him than that which he now wishes to be able to address in response to the remarks made by Judge Goldring. As Gleeson CJ observed in the decision in Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 77 ALJR 699, natural justice is essentially practical justice. The approach which is put to me today does not in my view amount to a practical approach to the issue of procedural fairness. 30 Mr Killalea relied on a recent decision of a Full Court in Dagli v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCAFC 298. In that case one of the issues before the Full Court (Lee, Goldberg and Weinberg JJ) was that there was a breach of natural justice because the appellant had not been supplied with adverse material identified before the primary judge and taken into account by the Minister. 31 Their Honours allowed an appeal from the primary judge but the appeal was allowed on other grounds identified in particular at [42] of the judgment of the Full Court. Those issues turned upon whether the primary judge had erred in holding that the Minister had not relied upon certain adverse material contained in the issues paper. Although, one of the issues identified at [42] is the assessment about the risk of recidivism of the applicant, that is a different issue from the issue which arises in the present proceedings. 32 At [74] of the judgment of the Full Court, their Honours stated that there was no doubt that the issues paper contained some material that was extremely prejudicial to the appellant and their Honours observed that, as the primary judge concluded, he was given no real opportunity to comment on that material. That is not the case here and in my view the observations of the Full Court in Dagli are not pertinent to the present application. 33 For those reasons the orders I make are that the application is dismissed with costs. 34 Mr Killalea submitted that the appropriate order was that there be no order as to costs. He referred to s 501G(1)(e) and submitted that the Minister had failed to provide reasons with the decision in accordance with the section. 35 He pointed out, quite correctly, that the consequences of removal are extremely serious for an applicant because the effect of an order, as a practical matter, is that the applicant will not be able to return to Australia. He says that it was incumbent upon the applicant to test the reasons after they were provided. However, it does seem to me that what was incumbent upon the applicant was to challenge the Minister's decision, not the reasons. The High Court has made it plain in Palme that failure to give reasons for cancellation of a visa does not amount to jurisdictional error and does not taint the decision. 36 In my view, the applicant, having failed in his challenge to the Minister's decision, the appropriate order is that costs follow the event and the applicant should pay the costs of the application. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 25 March 2004 Counsel for the Applicant: R Killalea Solicitor for the Applicant: Rob Makin & Associates Counsel for the Respondent: R Bromwich Solicitor for the Respondent: Clayton Utz Date of Hearing: 22 March 2004 Date of Judgment: 22 March 2004