FEDERAL COURT OF AUSTRALIA Howells v Minister for Immigration & Multicultural Affairs [2004] FCA 530 MIGRATION – cancellation of visa for failure to pass the character test – no reasons for decision provided – such failure not a failure to observe procedures – decision not shown to be fettered by policy concerning weight to placed on certain factors in preference to others – delay giving rise to prejudice – mandamus not granted Migration Act 1958 (Cth) ss 476(1)(a), 476(1)(e), 499, 501, 501(2), 501(6)(a), 501(7), 501G(1)(e) Andary v Minister for Immigration & Multicultural Affairs [2001] FCA 1544 cited Awa v Minister for Immigration & Multicultural Affairs (2002) 189 ALR 328 cited Jahnke v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 268 cited Javillonar v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 311 cited Madafferi v Minister for Immigration & Multicultural Affairs (2002) 118 FCR 326 cited Minister for Immigration & Multicultural & Indigenous Affairs, Re; Ex parte Palme (2003) 201 ALR 327 considered Minister for Immigration & Multicultural Affairs v W157/00A (2002) 125 FCR 433 cited Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 applied Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2003) 203 ALR 33 considered Ruhl v Minister for Immigration & Multicultural Affairs (2001) 184 ALR 401 cited W157/00A v Minister for Immigration & Multicultural Affairs (2001) 190 ALR 55 cited GARY HOWELLS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W422 of 2001 RD NICHOLSON J 30 APRIL 2004 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W422 OF 2001 BETWEEN: GARY HOWELLS APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 30 APRIL 2004 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The further amended application for review be dismissed. 2. The applicant 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 W422 OF 2001 BETWEEN: GARY HOWELLS APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE: 30 APRIL 2004 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant applies to review a decision of the respondent to cancel the transitional (permanent) BF visa held by him. The respondent made that decision on 7 August 2001 and in doing so purported to exercise powers under s 501(2) of the Migration Act 1958 (Cth) ('the Act'). It is not in contention that the applicant did not pass the character test referred to in s 501(6)(a) and s 501(7) of the Act, in that he had a substantial criminal record. 2 By way of the further amended application as now pressed two grounds are raised. The first is whether the respondent's decision involved reviewable error in that he failed to give to the applicant a written notice that set out the reasons for the decision as required by s 501G(1)(e) of the Act so that procedures that were required by the Act to observed in connection with the making of the decision were not observed, contrary to s 476(1)(a) of the Act. The second is that the decision involved an error of law, for the purposes of s 476(1)(e) of the Act in that the respondent applied the provisions of Direction No. 17 (Direction – visa refusal and cancellation under s 501 – No. 17) promulgated under s 499 of the Act and thereby erroneously and unlawfully fettered his discretion under s 501 of the Act. Alternatively, in the event that neither of these grounds succeed, the applicant's cases raises an issue whether the applicant should be entitled to mandamus to compel the respondent now to provide reasons. relative legislative provisions 3 Because the decision to cancel the applicant's visa was made prior to the introduction of the amendments to the Act effective from 2 October 2001, the provisions of s 476 as it stood prior to that amendment are applicable to the present application. 4 Section 476(1)(a) then relevantly read: '476 (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; … (e) that decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; …' 5 Section 501 relevantly reads: '501 (1) … (2) The Minister may cancel a visa that has been granted to a person if: (b) the Minister reasonably suspects that the person does not pass the character test; and (c) the person does not satisfy the Minister that the person passes the character test. … (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7); or …' 6 Section 501G(1)(e) reads: '501G (1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to: (a) … (b) cancel a visa that has been granted to a person; the Minister must give the person a written notice that: … (e) sets out the reasons (other than non-disclosable information of the decision; and …' minister's direction 7 The Minister's Direction promulgated under s 499 relating to visa refusal and cancellation under s 501 of the Act is described as Direction No 17. In Pt 1 it addresses the application of the character test and nothing relevantly arises in connection with that in the present application. In Pt 2 it addresses the exercising of the discretion in the event a non-citizen does not pass the character test. In relation to what it describes under the heading as 'Weight of considerations' the Direction states: '2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 – 2.16 and other considerations are set out at paragraphs 2.17 – 2.23. Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.' 8 The Direction lists as 'Primary Considerations' the protection of the Australian community and members of the community; the expectations of the Australian community; and the best interests of the child or children where there is a parental relationship for consideration. 9 In relation to 'Other Considerations' it is said that 'It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations'. Considerations identified by the Direction as coming within this description of 'other considerations' include the extent of disruption to the non-citizen's family, business and other ties to the Australian community; the degree of hardship which would be caused to immediate family residents lawfully resident in Australia (including Australian citizens); the family composition of the non-citizen's family, both in Australia and overseas; and the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability. background circumstances 10 The evidence before the Court appears in an affidavit filed on behalf of the respondent. The following account of the circumstances is taken from exhibits to that affidavit. notice of cancellation 11 By a letter dated 12 June 2001 the Department of Immigration and Multicultural Affairs ('the Department') gave to the applicant notice of intention to consider cancellation of his visa under s 501(2) of the Act. He was advised that his visa may be liable for cancellation by the respondent under s 501 of the Act and in particular s 501(6)(a). His substantial criminal record was described as a matter in relation to which he was provided with an opportunity to comment. The letter then continued: '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 17 titled 'Direction under Section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958'. In preparing your comments please read fully and carefully the contents of the Minister's Direction. You should address each and every topic that you feel applies to you or is relevant to your circumstances. You may also provide any further information, apart from those considerations listed in the Minister's Direction, that you feel the Minister ought to be aware of take into account.' Minute provided to respondent 12 The respondent was provided with a Minute by the Department. It appears to be undated. 13 In the Minute the personal particulars of the applicant described that he was born in England on 18 May 1969; holds British citizenship and has never married. His immigration history was stated to be that on 6 June 1982 he entered Australia on the transitional (permanent) BF visa. The period of his stay being indefinite. His previous absences from Australia had been from 1985 – 1986 and for a period in 1987, 1993 and 1994. 14 The grounds available under s 501 in relation to the visa cancellation including, in particular, s 501(6)(a), were set out in the Minute together with the evidence of the applicant's official criminal history and a description of the character test. The Minister was advised that 'it is open for you to find that [the applicant] does not pass the character test due to the fact that he has been sentenced to 12 months or more imprisonment'. 15 The Minute then turned to the issue of 'Discretion'. 16 Paragraph [6] of the Minute read as follows: '[6] If you are satisfied that Mr HOWELLS does not pass the character test you must consider the exercise of your discretion to decide whether Mr HOWELLS should be permitted to remain in Australia. s.501 of the Migration Act 1958 provides you with a discretion to cancel a visa. You have issued Directions under s.499 to guide delegates and the AAT in the exercise of that discretion. It is clear from a number of decisions of the Federal Court that, when you decide a case personally, you are not bound by your s.499 Directions. In making a decision on this case it is open to you to be guided by the factors set out in the Direction. However, in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors.' 17 Under the heading 'Primary Considerations' the document considered firstly, '(a) seriousness and nature of conduct'. Under that heading par [15] read: '[15] Mr HOWELLS [through his Migration Agent, Patrick Hogan] put forward the following factors by way of mitigation in his submission to the department: "Mr HOWELLS accepts that each of the offences he has committed are serious. However, they were committed in circumstances where Mr HOWELLS was suffering from a long term drug addiction. The most recent offence, possession of a prohibited import, was committed in circumstances where he was not the primary offender.' 18 Under the heading '(b) likelihood that the conduct may be repeated (including any risk of recidivism)' the Minute recorded sentencing remarks by Blaxell DCJ on 21 March 1996 which included the comment that prior to becoming addicted to heroin the applicant was substantially a law-abiding person. It also recorded sentencing remarks by Wisbey DCJ to the effect that a lot of his criminal behaviour had, as one of its sources, his addiction to drugs. It quoted, also, a submission made in his favour in response to the notice from the Department that he did not have a long history of criminality; his previous general conduct, outside of offending, was good; he came from a supportive family; he was educated to year 10; and when not imprisoned had always been employed. Additionally it referred to a letter of support from his mother indicating that, after spending considerable time in prison, he had had time to escape from his drug dependency and was putting efforts into studies. The Minute stated in par [17] that in consideration of these and other matters there set out, it was open to the respondent to find that the applicant 'is at a medium risk of recidivism'. 19 The Minute then referred to matters under the heading '(c) General deterrence'. It stated that it was open to the respondent to find that the cancellation of the applicant's visa would serve as a deterrence factor against others committing offences, a matter in which the Government had a strong interest. 20 Under the heading 'The Expectations of the Australian Community', a matter referred to in par 2.12 of the Direction, it was stated that it was open to the respondent to find that the character concerns or offences were such that the Australian community may expect the applicant to be removed from Australia. 21 Under the heading 'Other Considerations', a matter considered derivatively from par 2.17 of the Direction, reference was made to the submission on behalf of the applicant that he had lived in Australia since arriving in 1982 so that his only ties were with members of his family and friends in Australia. Further, it was said that the family home had always been his principal place of residence. Additionally, it was submitted there would be a degree of emotional hardship caused to the applicant's mother and other family members should he be removed. Reference was again made to him pursuing a bachelor degree in tertiary studies. 22 This section of the Minute made no specific recommendation but concluded in the following terms: '[31] Mr HOWELLS arrived in Australia on 06.06.1982 with his family and has resided in Australia since. His father returned to the U.K. in 1988. He has maintained the family home as his principal place of residence. His claims of significant compassionate circumstances for remaining [sic] Australia are based on the emotional hardship which would be caused to his mother and other family members.' 23 The Minute stated that the document had addressed all matters in line with the Direction and that these included other matters raised by or on behalf of the applicant. Respondent's decision 24 The respondent's decision commenced with the following opening words: '[35] I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of the Act and Mr Gary Howell's comments, and have decided that: …' 25 The respondent then had four options set out before him and these were preceded by the words 'please delete whichever is NOT applicable:'. The first three options were deleted. 26 The respondent in choosing the fourth option and signing the decision stated as follows: '(d) I reasonably suspect that Mr Gary Howells does not pass the character test and Mr Gary Howells 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' failure to observe procedures: s 476(1)(a) whether failure to provide reasons 27 There is a preliminary question arising under this ground. This is a question of fact. Here it is accepted for the respondent that, apart from contents in the covering letter, the Minute read together with the decision of the respondent does not set out the reasons for the decision as required by s 501G(1)(e). In particular it is accepted for the respondent that the Minute did not 'point all in one direction' or make an overall recommendation for cancellation. The covering letter in which the applicant was advised of the decision, which was dated 10 August 2001, stated that the decision record sets out the reasons for the decision. In the circumstances accepted on behalf of the respondent, however, it is not open to find as a question of fact that such assertion can properly support a finding of fact that reasons for decision were provided to the applicant. Accordingly it is not necessary to examine other decisions in which different formulations of minutes have been examined. whether failure to observe procedures 28 However the question which also arises is whether the failure to provide such reasons gives rise to a ground of review pursuant to s 476(1)(a) of the Act. 29 In Minister for Immigration & Multicultural Affairs v W157/00A (2002) 125 FCR 433 Branson J at 450 – 451, at [56] – [63], Goldberg J at 456, at [87] and Allsop J at 456 – 458, at [91] – [98] were of the opinion that failure to provide reasons would not provide a ground of review pursuant to s 476(1)(a) of the Act. 30 However, in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 at 336, Gleeson CJ, Gummow and Heydon JJsaid: '[43] It was decided by Lee J in W157/00A v Minister for Immigration & Multicultural Affairs23 that the failure by the respondent to give a written notice setting out the reasons for the decision as required by s 501G(1)(e) attracted review by the Federal Court under what was then s 476 of the Act. This was because there had been a failure to observe "procedures that were required by [the] Act … to be observed in connection with the making of the decision"24 (emphasis added). That may be conceded, but it does not address the submission that such a failure also taints that decision with jurisdictional error so as to attract s 75(v) of the Constitution.' (footnotes omitted) Footnote 23 to this passage read: '(2001) 190 ALR 55 at 66-7. His Honour's treatment of the subject was not challenged on appeal: Minister for Immigration and Multicultural Affairs v W157/00A (2002) 72 ALD 49 at 56.' 31 The footnote is referring to a report of the Full Court decision. Reference to 57 of that report (443 of the FCR) at [32] shows that the second and alternative ground of appeal was that the primary judge 'erred in deciding that the failure by the appellant to provide constituted the ground of review established by s 476(1)(a) of the Act'. 32 The issue which arises is whether the majority of the High Court in Palme at [43] are to be understood as agreeing with Lee J's decision in W157/00A at first instance in preference to the decision of the Full Court on the issue. The case for the applicant contends that the decision of the majority in Palme is authoritative on the point. The case for the respondent asserts to the contrary. For the respondent it is contended that when the majority in the High Court in Palme stated in [43] that the view of Lee J 'may be conceded', all that was intended was to state 'this may be conceded but it does not address the case which we now have'. 33 In Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2003) 203 ALR 33 French J (at [32]) referred to the reasoning by Lee J in W157/00A at [63] and said: 'In their recent joint judgment in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 at [43], Gleeson CJ, Gummow and Heydon JJ, accepted the characterisation advanced by Lee J that the obligation to provide reasons was a procedure required by the Act to be observed in connection with the making of the decision. Their Honours also observed in a footnote to their judgment (fn 23) that Lee J's treatment of the subject was not challenged on the appeal from his decision - Minister for Immigration and Multicultural and Indigenous Affairs v W157/00A (2002) 72 ALD 49 at 56.' He continued at [33]: 'The issue before the High Court in Palme was whether a failure to provide reasons as required by s 501G constituted a jurisdictional error which would vitiate the cancellation in respect of which the reasons were required. Their Honours held that not to be the case.' 34 As appears above, it is not the case that Lee J's view that a failure to provide reasons was a non-observance of procedures in connection with the making of the decision was not challenged on the appeal from his decision. On one view, the High Court's reference to the absence of a ground of appeal directed to that issue in footnote 23 would appear to be in error. 35 Whether or not that is the case, I cannot accept that in construing the reasoning of the majority of the High Court in Palme it should be assumed in the use of the words 'that much may be conceded' that their Honours thereby intended to overrule the ratio in the Full Court decision in W157/00A. In my view the absence of an express reference to the Full Court reasoning strongly favours the reading of the words 'that much may be conceded' as simply referring to a matter that may be assumed for the purposes of the argument without it being deciding whether or not it was correct in law. I therefore do not agree that it was part of the ratio of the High Court in Palme that Lee J's treatment of the subject in W157/00A was correct. 36 In any event, I do not consider the ratio of the majority in Palme was dependent upon the view it took on the applicability of s 476(1)(a). Their view appears at 337, at [48]: 'The visa cancellation decision may be reviewed in this court for jurisdictional error. Such error may be found from what is disclosed by reasons provided under s 501G(1)(e). Failure to provide reasons may also be reviewed in this court and compliance by the minister with the statutory duty may be ordered. The reasons then provided may furnish grounds for prohibition under s 75(v) in respect of the visa cancellation decision. But what is not provided for is for a prosecutor, as in this case, to bypass that earlier step utilising mandamus, and to impeach the visa cancellation decision itself for want of discharge of the duty to provide reasons. There is, as was pointed out in argument, a critical distinction between failure to comply with s 501G(1)(e) and using that failure to conclude that the visa cancellation decision is flawed by jurisdictional error.' This ratio was reached on circumstances not involving the possible application of s 476(1)(a). That reinforces my view that the correct reading of par [43] in the reasons of the majority in Palme is one which assumed the correctness of Lee J's view in W157/00A for the purposes of the argument without deciding it. 37 Like Goldberg J in the Full Court in W157/00A, I consider that as a matter of principle a procedure to be observed 'in connection with the making' of a decision may, as a matter of logic, include a procedure both antecedent to, as well as subsequent to, the making of a decision. However, his Honour's view, with which I agree, namely, the weight of authority in relation to the construction of s 476(1)(a) of the Act does not allow that conclusion to be reached: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [77] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed at [1], per Callinan J at [205]) (see Gaudron J at [30] – [31] to the contrary). 38 Nevertheless, I consider that the law as it presently stands does not permit the Court to find in the circumstances that the ground of review is made out. fettering of discretion: s 476(1)(e) 39 It has earlier been set out in these reasons that par [6] of the Minute referring to the issue of discretion advised the Minister that in balancing the relevant factors in the case he was free to place whatever weight he regarded as appropriate on those factors. I agree with the submission for the respondent that it cannot, in those circumstances, be inferred that the respondent in this case misunderstood or fettered his discretion by regarding primary factors to be given weight outweighing other factors or failure to give weight to other factors. He was very clearly instructed that he was free to place whatever weight he regarded as appropriate on the factors which he regarded as relevant. 40 Furthermore, as a question of fact the notice to the applicant of intention to cancel his visa, while referring to Direction No 17, clearly advised the applicant that he could provide any further information, apart from information addressing considerations listed in the Direction, which the applicant felt the respondent ought to be aware of and take into account. 41 In light of these factual considerations it is unnecessary to examine the decisions in other matters: cf Madafferi v Minister for Immigration & Multicultural Affairs (2002) 118 FCR 326; Awa v Minister for Immigration & Multicultural Affairs (2002) 189 ALR 328, being decisions of the Full Court and Andary v Minister for Immigration & Multicultural Affairs [2001] FCA 1544; Ruhl v Minister for Immigration & Multicultural Affairs (2001) 184 ALR 401; and Jahnke v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 268. See also the Full Court decision in Javillonar v Minister for Immigration & Multicultural Affairs (2001) 114 FCAFC 311. mANDAMUS 42 In the original application filed on 6 September 2001 general relief was sought. In the amended application filed on 14 April 2003 an order was sought for the respondent to provide reasons for decision. The further amended application filed on 27 February 2004 repeats the claim for an order for the delivery of reasons. 43 It is common ground that mandamus is a discretionary remedy. For the respondent it is asserted that certain factors in particular should occasion the Court to exercise the discretion against the grant of mandamus. The first is the fact that the application for such relief was first made in the amended application filed on 14 April 2003 so that there is a considerable delay, it is submitted, of about 20 months. Secondly, it is said that necessarily an order directed to that end at this time would be seeking ex-post-facto reasons and these would be a reconstruction. The applicant seeks to preserve the right to object to any reasons resulting from an order of mandamus on the ground they are a reconstruction. 44 In Nezovic at [59] it was said by French J that the person who must verify the reasons is the person who actually made the decision as the Minister and not his successor in that office. That person must be also be available for cross-examination if the reasons are to be received in evidence. There French J declined to admit reasons for decision exhibited to a solicitor's affidavit. 45 Here, the argument for the applicant is that in a situation where there is a statutory obligation to provide reasons and that obligation has not been fulfilled, the discretion should be exercised in favour of ordering production of reasons. That necessarily would, conformably with the approach in Nezovic, require them to be the reasons of the person who was the Minister on 7 August 2001 when the decision under review was made. As stated in Nezovic by French J at [59] the availability of that person for cross-examination would be a condition of the admissibility of the reasons so that cross-examination could occur if sought. It is not in dispute that the present respondent was not the Minister when the decision was made. 46 The existence of a statutory obligation on the respondent's predecessor to provide reasons is an important factor favouring discretionary relief. However, delay here has made it next to impossible for the respondent's predecessor to provide any reason other than those by way of reconstruction. He has been severely prejudiced in respect of providing actual reasons by the passage of time. It is more probable than not that any reasons now reconstructed by him will be objected to on behalf of the applicant. In these circumstances I consider the factors against the grant of the remedy outweigh those favouring it so that the discretion must be exercised against such grant. conclusion 47 For these reasons the further amended application for review should be dismissed. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 30 April 2004 Counsel for the Applicant: Mr AO Karstaedt Solicitor for the Applicant: Summerslegal Counsel for the Respondent: Mr JD Allanson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5 March 2004 Date of Judgment: 30 April 2004