FEDERAL COURT OF AUSTRALIA Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 CHARLES EDWARD SALES v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NSD 2128 OF 2006 ALLSOP J 20 DECEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2128 OF 2006 BETWEEN: CHARLES EDWARD SALES Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: ALLSOP J DATE OF ORDER: 21 DECEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Time be extended under section 477A of the Migration Act 1958 (Cth) for the filing and serving of the application by the applicant, initiating these proceedings, on 31 October 2006. 2. A writ of certiorari issue in respect of the decision of the Respondent made on 23 August 2006 purporting to cancel the Applicant's visas, namely an absorbed person's visa and a transitional (permanent) visa. 3. The Respondent pay the Applicant'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 NSD 2128 OF 2006 BETWEEN: CHARLES EDWARD SALES Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: ALLSOP J DATE: 20 DECEMBER 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant seeks relief under an amended application filed in Court on 6 December 2006. Some of the claims made in that amended application are clearly misconceived. It seeks, for instance, an order that the Court reinstate the applicant's visa and the Court substitute its decision that the discretion be exercised in favour of the applicant remaining in Australia. With respect to the drafter of the document, those matters are clearly ones not open to the Court on judicial review. 2 The primary claim of the applicant, however, is relief in relation to a decision of the Minister of Immigration and Multicultural Affairs made on 23 August of this year in circumstances which I will relate in detail in a moment. The decision was one to cancel the visas of the applicant who is said to be an alien. The visas cancelled were cancelled under section 501(2) of the Migration Act 1958 (Cth), (the Act). The terms of s 501 of the Act are as follows: (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. (2) 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. (3) The Minister may: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; if: (c) the Minister reasonably suspects that the person does not pass the character test; and (d) the Minister is satisfied that the refusal or cancellation is in the national interest. (4) The power under subsection(3) may only be exercised by the Minister personally. (5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection(3). (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 (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test . (7) For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution. (8) For the purposes of the character test, if a person has been sentenced to periodic detention, the person's term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention. Residential schemes or programs (9) For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in: (a) a residential drug rehabilitation scheme; or (b) a residential program for the mentally ill; the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program. (10) For the purposes of the character test, a sentence imposed on a person is to be disregarded if: (a) the conviction concerned has been quashed or otherwise nullified; or (b) the person has been pardoned in relation to the conviction concerned. (11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though: (a) it does not involve violence, or threatened violence, to the person; or (b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person. (12) In this section: "court" includes a court martial or similar military tribunal. "imprisonment" includes any form of punitive detention in a facility or institution. "sentence" includes any form of determination of the punishment for an offence. 3 The applicant had a permanent visa and an absorbed person's visa allowing him to remain in this country until its cancellation. The failure of the applicant to pass what is called the "character test" in s 501 is made manifest by understanding the crime for which he was convicted in 1988. The applicant murdered a man by beating him to death with a piece of wood, while the victim lay asleep in his residence. Setting the matter so baldly highlights the gravity of what occurred. The applicant was convicted after standing his trial in the Supreme Court of New South Wales and was sentenced to a mandatory term of life imprisonment by Mr Justice Studdert. The material that was before the Minister makes clear that the applicant's sentence was re-set during the 1990s and after some parole he was returned to prison for breaching the terms of his parole. Nothing set out later in these reasons should be understood to detract from the recognition of the gravity of the offence. This hardly needs stating. 4 On 8 August 2006, the applicant was some weeks away from release. He had spent the best part of 18 years in prison for his crime. The applicant can for present purposes be regarded as an alien within the meaning of the Constitution, and a non-citizen for the purposes of the Act. It may be open to debate precisely what the applicant's status is in terms of the Constitutional framework of aliens, and the statutory framework of "citizens" and "non-citizens". But for the present purposes I will work on the hypothesis which I think founds the purported exercise of power of the Executive in relation to him that he is a non-citizen. 5 In my view, for the reasons that I propose to give, I do not think that the applicant was accorded procedural fairness in connection with the decision that was made on 23 August 2006. To understand why I have come to that view one needs to understand in detail the applicant's position. 6 I have taken the view, after consideration of the matter, and after hearing counsel, that it is appropriate to deal with the matter extempore, coming to the view, as I have, about the fundamental issue of a lack of procedural fairness. No doubt with the passage of some time into January, my reasons could be made more felicitous, but I think the applicant's position requires immediate attention given that I have come to the view that I have. My view as to the primary issue of procedural fairness makes it unnecessary to deal with the other arguments carefully developed by Dr Scutt in her written submissions. 7 The facts I am about to recount are taken from the material that was before the Minister and which were reflected in the material prepared by the Department or provided to her by the Department, that material having been provided by the applicant or those connected with him. 8 The applicant was born in Scarborough in England in 1951. He came to this country three years later. He has spent his life since then in Australia. He does not appear to have left the country. The applicant's early years are described in the documentation provided to the Department by his mother and by others. It would appear that from an early age the applicant experienced a troubled home life. His father appears to have been affected often by drink and there appear to have been incidents of violence. 9 In any event, it would appear from the material that in his early years, still a child, the applicant became familiar with alcohol and from his early years as a teenager spent time in institutions. His criminal record began in his teenage years, involving crimes such as stealing. It is unnecessary to deal with these issues other than to say that the applicant had an alcohol addiction from an early age and a criminal record from that early age. It would appear also that from about the age 30 the applicant began to have a heroin addiction. The applicant was 37 when he committed the murder in 1988. The sentencing judge, Justice Studdert, referred to these addictions and other surrounding circumstances, but they were inadequate, on the authorities, to affect what the Crimes Act called for at that time by way of a mandatory life sentence. 10 The applicant's time in prison does not appear to have led to serious crime having been committed by him against other prisoners or those charged with his custody. However there was material before the Minister to indicate a not entirely blameless existence in prison. 11 In 1998, the Department wrote to the applicant advising him, while he was serving his term of imprisonment, of the risk he faced of the cancellation of his visas under s 501. No step appears to have been taken then or in the immediately following years to put into effect any steps in that direction. In 2001, consequent on the decision in the High Court in Re Patterson, the Department notified the applicant of the ruling in Re Patterson and informed the applicant that the Department would no longer be considering him for visa cancellation. 12 In 2003 (one can safely assume unknown to the applicant) the High Court changed its view about the question of alienage and citizenship in Shaw v Minister for Immigration in December 2003. A relevant legal officer of the Department in the following year concluded that the effect of Shaw was to place the applicant back in the position he was in when informed in 1998 that he was liable to deportation. So it came about that hand-delivered to the applicant on Tuesday, 8 August 2006 was a letter of seven pages together with annexures which informed the applicant that he was liable to the possibility of visa cancellation and deportation. The letter dealt with the character test and whether his visas would be cancelled. On page 3 of the letter the applicant was advised of the considerations that would be taken into account if the decision was made by a delegate or if made by a Minister. It was not clear to the applicant who would make the decision, but in either case direction number 21 was said to be relevant. If the decision were to be made by a delegate it was mandatory and if it were to be made by the Minister it would be a direction to which the Minister could have regard. Thus direction number 21 was a document which was highly relevant to any applicant and this applicant to consider in relation to the position that such a person and this person would face under s 501. 13 The letter included a number of other documents including extracts from the Act, the applicant's criminal history, pre-release reports of various dates, parole reports and a copy of the sentencing judge's remarks. Page 7 of the letter sets out in detail the documents which the applicant recognised receiving. The letter urged the applicant to read fully and carefully the contents of the Minister's direction. It urged him to address each and every topic that he felt applied to him or that was relevant to his circumstances and to provide any other information which he thought was relevant. 14 The direction is a comprehensive and careful document of 11 pages. It makes clear in the preamble that the exercise of the discretion whether or not to cancel the visas will take into account a wide range of factors including the protection and the expectations of the Australian community, the nature of the crimes committed, the non-citizen's links to Australia and any relevant international law obligations of Australia. The preamble went on to say that the purpose of refusing or cancelling a visa under s 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community. The task to prepare material for a consideration of such matters, objectively understood, is wide-reaching and significant. 15 Part 1 of the direction dealt with the character test. As I have already said, the applicant's criminal record made clear on any reading of s 501 that he failed that character test. There is no discretion involved in that. The exercise of the discretion, however, was referred to in part 2 of the direction where it was stated that: If a non-citizen does not pass the character test, decision makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. 16 I repeat at this point, given the Minister herself made the decision, this mandatory language should be read as permissive as to her decision. 17 The primary considerations which the applicant would have understood and that can be understood upon reading this document were three: first, the protection of the Australian community; secondly, the expectations of the Australian community; and thirdly, in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children. The direction then went on to deal with these three primary considerations in more detail. 18 First it dealt with the protection of the Australian community. The first matter dealt with under that heading was the seriousness and nature of the conduct. The second was the likelihood that the conduct may be repeated, including any risk of recidivism. The third was general deterrence, the likelihood that visa refusal or visa cancellation would prevent or inhibit the commission of like offences by other persons. There was then a section on the expectations of the Australian community. Paragraph 2.12 included the following: The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere it may be appropriate to refuse the visa application or cancel the visa held by such a person. 19 I stop at this point to reflect that the trust of the community in the applicant began when he was brought to this country aged three and began, in all practical terms, to live his life in this country. 20 The best interests of children are dealt with from paragraph 2.13. It makes clear that the children to which reference is made are under 18 but such children are not limited to direct issue of the person concerned. That is relevant here because of the extended family of the applicant, including nephews and nieces. 21 Under "other considerations" various international covenants are referred to. 22 Before turning to how the applicant responded to the document a number of things need to be said. First, the letter gave him until 22 August to provide all relevant information: 14 days. Secondly, one needs to stop for a moment and reflect on this man's position. What I am about to say is not said with any intended disrespect to the applicant or to those of his family who are here. I put the matter in the way I have, and the way I am about to, to posit the starkness of the decision and the gravity of the decision which the Minister was called upon to make and which the applicant was called upon to provide material about. 23 The applicant had committed the most serious crime possible in a way, at least from the material before the Minister, which reflected a degree of callousness and brutality unameliorated by his addictions. He had, however, served 18 years in prison for that act. He was coming to the end of a long prison term. He had been on parole for a short period but had, by and large, spent a significant part of his adult life in a penal institution answering to prison discipline during that time. He had spent a significant part of his youth in an institution. He had or had had heroin and alcohol addictions. Though writing with some clarity one can infer from his background that it would be fair to say that he was not a well-educated man. From the material before the Minister it could be inferred that his family were not people of wide or deep resources, or otherwise of significant education. The contents of the letters provided to the Department for the Minister make these fairly general propositions plain. 24 It was also objectively clear that the task at hand for the applicant and those concerned with his welfare was a likely difficult one because of the seriousness of the crime. As can be seen from direction number 21 Mr Sales was required to face the task of putting forward all that he could in the most persuasive coherent fashion to illuminate his life, his present circumstances and the future. By reference to the kinds of criteria set out in direction number 21, he was faced with the need to bring forward material to persuade the Minister that the expectations of the Australian community and the protection of that community did not require him to be taken or sent from this country (where he had lived the whole of his remembered life) forever. 25 On 8 August, the Departmental officer provided the applicant with the documents that I have identified. She then proceeded to conduct an interview with the applicant. The typed notes of that interview are almost a page and a half and were later acknowledged by the applicant as a correct record of the interview. They reflect, as Mr Johnson perfectly properly submitted, a tolerably lucid outline of some relevant material about the applicant. On the following day the applicant rang the Department saying he had further information. Five days later the applicant's mother rang the Department and gave information. On the same day the applicant's mother rang again and gave some further information. On the same day the applicant himself rang, gave some further information and apparently mentioned that he had not been given enough time to respond. The Departmental officer asked how long he would need and what he wanted to do in that time. The applicant replied that he thought it would be good to provide copies of his trade certificates to show his rehabilitation. It was suggested that they could be sent in by the family. He was reminded that he had more than one week to provide additional comments. 26 The record indicates that the officer asked him whether he needed longer time to list out the training courses and good works he had done over the years in gaol. He said he did not really need extra time, but he thought two weeks seemed to be a short time. However, he said that he would make good use of the time and provide additional comments. 27 On that same day a one and a half page close-typed document was sent to the department by the applicant. On 21 August another letter was sent by the applicant together with a list of his trade certificates. On 16 August another document was sent to the Department by the applicant again dealing with his trade courses. On 21 August a two-page letter was sent to the Department by the applicant's sister setting out aspects of his background and family life. On 22 August handwritten documents were sent by Brenda and John Teitzel about their relationship and knowledge of the applicant. On 16 August there had also been sent to the Department a handwritten letter from the applicant's son. On 14 August, a handwritten document had been sent to the Department by the applicant's mother. Ms Teitzel had also sent a letter to the Department on 14 August. 28 All these letters set out aspects of the applicant's personal history and also set out his ties to Australia, his extended family and reasons why the Department or the Minister should not take the step that had been identified as possible; that is, cancelling his visas and deporting him. 29 The applicant did not say to the Department, "I need to obtain legal advice." The applicant did not say to the Department, "I need professional assistance to put together the equivalent of a pre-sentence report." The applicant did not say to the Department, "I need independent expert assistance dealing with the protection of the community and the expectations of the community." He did what he could, having raised the question of time, but accepting in conversation with the Departmental officer that he would deal with the matter in two weeks. 30 The conclusions I reach about this I should preface with these comments, that they are not intended to be a personal criticism of the Departmental officer, nor are they intended to be any form of criticism of the Minister. 31 I fully accept, as it unnecessary to state because it not my place to do other than accept, the existence of the power under a law of the Parliament to cancel his visa. However, objectively speaking, looking at the matter from the perspective of the nature of the power, its consequences and the personal circumstances of the applicant, procedural fairness required an objectively adequate opportunity for the applicant to deal with the task before him. The task was a considerable one. It was, objectively, one, at least, to address all aspects of direction number 21. 32 Whether or not the applicant took advantage of the time given to him or whether he would have taken advantage of any longer period of time given to him is not the point. As I have sought to identify, this man was faced with the task of persuasion of the Department or the Minister as to why he should not be deported in circumstances through the lens of the protection of the Australian community, the lens of the expectations of the Australian community and any relevant international obligations of Australia, including those dealing with children and family. He had been in prison for much of his adult life. He was still in prison. The 14 day period was, in my view, plainly inadequate for him to address the task before him. 33 I do not identify any rule that requires any particular length of time. However, in my view, to give a person in this man's position 14 days to put such material as he wanted to put before such a decision was made by reference to such criteria was not fair; it was not a fair opportunity for him and those with whom he might consult, being his family, not only to prepare the kinds of personal reflections that they did, but to consider whether that material should not be supplemented by professional assistance. 34 I cannot imagine many courts in Australia sentencing anyone without a careful pre-sentence report for a serious crime. It should not be thought that, by saying that, I am stating that I think this is punishment. This is not punishment; it is protection of the Australian public and an administrative decision in conformity with the expectations of the Australian community. But the consequences to the applicant and to his family are of such character and of such gravity that the notion of protection of the Australian public and the expectations of the Australian community clearly require a person in the applicant's position to be given sufficient time to marshall all appropriate information which would include, in my view, at least the temporal opportunity to obtain outside assistance. Fourteen days for this man, in prison, with a background of incarceration, drug and alcohol addiction and otherwise of the background revealed by the papers was manifestly inadequate to undertake and complete the task before him. 35 The answer to this is not that this man, who had spent the best part of his adult life at least since his thirties in prison, did not demand an extension of time to obtain that material. He was in effect told by the Department that he had two weeks. He was asked in the conversation, having said that he thought it was too short, whether he needed more time. For someone of his background the time given by the Department could be seen to be conformable with the task at hand. It was not. In my view, when one takes the whole of the circumstances including this man's background, with the greatest of respect to the Department - and I add again that I do not personally criticise the Departmental officer - in my view, it is not open to debate that two weeks was an inadequate opportunity to meet a task of such gravity as set out in the Direction and otherwise; and at the risk of repetition, it was a task to persuade the Department or the Minister not to banish him from these shores forever. 36 In my view, 14 days for this man, in those circumstances, was not fair and was not procedural fairness. In my view, the decision of the respondent made on 23 August 2006 was made without providing the applicant with an adequate opportunity to be heard. I certify that the preceding thirty-sixsix (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 22 December 2006 Counsel for the Applicant: Dr J Scutt Solicitor for the Applicant: Michael Croke & Co Solicitors Counsel for the Respondent: Mr G Johnson Solicitor for the Respondent: Phillips Fox Date of Hearing: 20 December 2006 Date of Judgment: 20 December 2006