FEDERAL COURT OF AUSTRALIA Nguyen v Minister for Immigration and Citizenship [2008] FCA 199 MIGRATION – cancellation of visa – decision by Minister personally – whether Minister obliged to afford visa holder an oral hearing Constitution, s 75(v) Federal Court Rules, O 62 r 5(a), r 40C(4),(5), Schedule 2, item 43H Migration Act 1958 (Cth), ss 425(1), 474(1),(2),(3)(b), 476(1), 499, 500(1)(b), 501(2), (3),(6),(7), 501G(1) Nystrom v Minister for Immigration (2005) 143 FCR 420 cited Minister for Immigration v Nystrom (2006) 230 ALR 370 cited Sales v Minister for Immigration [2006] FCA 1807 cited Plaintiff S157/2002 v Commonwealth (2003) 162 CLR 476 referred to Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 referred to Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 referred to M238/2002 v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 936 discussed Minister for Immigration and Multicultural Affairs v Jia (2000) 205 CLR 507 referred to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 cited NGOC TONGUYEN v MINISTER FOR IMMIGRATION AND CITIZENSHIP NSD2319 OF 2007 SACKVILLE J 6 MARCH 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD2319 OF 2007 BETWEEN: NGOC TO NGUYEN APPLICANT AND: MINISTER FOR IMMIGRATION AND CITZENSHIP RESPONDENT JUDGE: SACKVILLE J DATE OF ORDER: 6 MARCH 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs fixed in the sum of $4,500. 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 NSD2319 OF 2007 BETWEEN: ngoc to nguyen applicant AND: MINISTER FOR IMMIGRATION AND CITZENSHIP RESPONDENT JUDGE: SACKVILLE J DATE: 3 MARCH 2008 PLACE: SYDNEY REASONS FOR JUDGMENT THE APPLICATION 1 This is an application seeking review of a decision made personally by the then Minister for Immigration and Citizenship ('Minister') to cancel the applicant's visa. The Minister decided to exercise his discretion under s 501(2) of the Migration Act 1958 (Cth) ('Migration Act') to cancel the applicant's Transitional (Permanent) BF-C visa. The Minister took into account, among other things, the fact that the applicant, a Vietnamese citizen, had been convicted of murder and attempted murder on 15 December 1989 and had been sentenced to penal servitude for life. 2 Generally speaking, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution: Migration Act, s 476(1). However, the Federal Magistrates Court has no jurisdiction in relation to a 'privative clause decision' or 'purported privative clause decision' made personally by the Minister under s 501 of the Migration Act: s 476(2)(c). Since the challenged decision of the Minister was made personally by him under s 501(2) and was a privative clause decision (s 474(2), (3)(b)), the Federal Magistrates Court lacks jurisdiction in relation to it. THE LEGISLATION 3 Section 501(2) of the Migration Act provides as follows: '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.' 4 Section 501(6) provides that a person does not pass the 'character test' if the person has a 'substantial criminal record' as defined in s 501(7). The latter sub-section states that a person has a 'substantial criminal record' if: '(a) … (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 …'. 5 If the Minister cancels a visa pursuant to s 501(2) of the Migration Act, he or she must give the visa holder a written notice setting out the decision and the reasons for the decision: s 501G(1). While a revocation decision made by a delegate of the Minister is reviewable by the Administrative Appeals Tribunal (s 500(1)(b)), a decision by the Minister is not so reviewable. BACKGROUND 6 The applicant was born in Vietnam in 1960 and is a Vietnamese citizen. In November 1977, he escaped by boat from Vietnam to Thailand, accompanied by one of his brothers and a sister. He arrived in Australia with his two siblings on 31 March 1978, under the Offshore Refugee Program. 7 Upon his arrival in Australia, the applicant was granted permanent residency. His permanent resident status was deemed to continue in effect on and after 1 September 1984 under the Migration Reform (Transitional Provisions) Regulations, by way of a Transitional (Permanent) (BF-C) visa. In addition, on 14 November 2005, it was determined that the applicant was the holder of an Absorbed Person visa. This visa allows a holder to remain in Australia indefinitely. 8 The applicant has a very extensive criminal record, commencing shortly after his arrival in Australia at the age of 17 years. On 1 August 1979, for example, he was convicted in the District Court of New South Wales of malicious wounding and sentenced to twelve months periodic detention. In September 1981, the applicant was convicted in Wallsend Court of Petty Sessions of assault and of carrying a fire arm under the influence of alcohol. On this occasion he was sentenced to three months imprisonment and fined. 9 In 1981, the applicant commenced a de facto relationship with his future wife. In 1982, a daughter was born and in 1986 the couple had a son. 10 On 8 December 1987 the applicant was involved in a shooting in a restaurant. He was arrested in June 1988 and taken into custody. Shortly thereafter, while in Long Bay Prison, the applicant married his de facto partner. 11 On 15 December 1989, the applicant was convicted in the Supreme Court of New South Wales of murder and of wounding with intent to murder. He was sentenced to life imprisonment. 12 Between 1989 and 1998, the applicant was incarcerated in a series of correctional institutions. He completed various courses, including English, although he is apparently not fluent in the language. In addition, he undertook some vocational training. 13 In 1998, the applicant applied to the Supreme Court of New South Wales for a redetermination of his life sentence. On 13 August 1998, Studdert J ordered that the applicant should be sentenced to 21 years imprisonment in respect of his conviction for murder, with a minimum term of 16 years. 14 Between August 1998 and a grant of parole in October 2005, the applicant completed a number of additional vocational and general courses while in prison. In 2002, during his term of imprisonment, his sister died of cancer. 15 On 22 July 2004, the then Minister decided to cancel the applicant's visa. In view of the Minister's decision, the applicant was taken into immigration detention when his parole took effect on 7 October 2005. 16 On 14 November 2005, the applicant was released from immigration detention by reason of his status as an 'Absorbed Person', in conformity with the decision of the Full Federal Court in Nystrom v Minister for Immigration (2005) 143 FCR 420. 17 On 8 November 2006, the High Court allowed an appeal from the judgment of the Full Federal Court: Minister for Immigration v Nystrom (2006) 230 ALR 370. In consequence of the High Court's decision, on 28 November 2006 the applicant was again taken into immigration detention. 18 On 1 December 2006, the applicant was interviewed by a Departmental officer while in detention at Villawood. On 20 December 2006, the Department of Immigration advised the applicant that the previous cancellation of his visa was being reviewed. 19 On 23 January 2006, the applicant was released from immigration detention following the decision in Sales v Minister for Immigration [2006] FCA 1807. This decision apparently was taken to suggest that there may have been a failure to accord the applicant procedural fairness in relation to the earlier cancellation of his visa. THE CANCELLATION DECISION Applicant's Submissions 20 On 3 April 2007, the Department wrote to the applicant (who was then not in custody) advising that it was giving fresh consideration as to whether his Transitional (Permanent) (BF-C) visa should be cancelled under s 501 of the Migration Act. The letter encouraged the applicant to provide the Department with all information that he wished the Minister, or a delegate, to consider in making the decision. 21 On 5 April 2007, the Department sent the applicant a 'NOTICE OF INTENTION TO CONSIDER CANCELLATION OF YOUR VISA UNDER SUB-SECTION 501(2) OF THE MIGRATION ACT 1958'. The Notice informed the applicant that the information to be relied upon would include his convictions for murder and attempted murder, the sentences imposed in respect of those offences and the redetermination of the sentence for murder that was made on 13 August 1998. The letter advised that the information that might be taken into account included the transcript of proceedings of a number of criminal proceedings involving the applicant, as well as other material specified in the letter. The applicant was further advised that all information that he had previously provided would be taken into account in making the decision. However, he was invited to provide information and comments in relation to the application of the character test and to address any matters that he considered that the Minister should take into account when exercising the statutory discretion. 22 The applicant engaged a firm of solicitors to act on his behalf. The solicitors wrote to the Department on 23 April 2007 seeking further documentation to assist in preparing a submission on behalf of the applicant. The information requested appears to have been provided on 9 May 2007. 23 On 16 May 2007, the solicitors provided the Department with a submission in writing, apparently prepared by a barrister, on behalf of the applicant. The submission was accompanied by statutory declarations from the applicant and two of his brothers. In addition, the solicitors attached records relating to the applicant that had been obtained from the Parole Board of New South Wales, the Department of Correctional Services and the Serious Offenders Council. Issues Paper 24 On 24 August 2007, the Department provided an Issues Paper to the Minister relating to the possible cancellation of the applicant's visa pursuant to s 501(2) of the Migration Act. The Issues Paper provided detailed background information and presented a number of issues for the Minister's consideration. It was accompanied by a draft Statement of Reasons that the Minister could adopt if he decided to cancel the applicant's visa. 25 Under the heading 'Protection of the Australian Community', the Issues Paper addressed the seriousness and nature of the applicant's criminal conduct. This part of the Issues Paper reproduced sentencing remarks made by Studdert J on the redetermination application. It also set out extracts from the submission prepared by the applicant's solicitors. 26 The Issues Paper pointed out that the relevant Direction made pursuant to s 499 of the Migration Act expressed the view that a person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of recidivism. In this context, the Issues Paper acknowledged that the applicant had not previously been warned about the risk of visa cancellation or removal. However, he had been interviewed in September 1981 by Departmental Officers while he was in prison, and had been advised that he was liable for deportation by reason of convictions recorded against him in August 1979. 27 The Issues Paper set out extracts from reports of the authorities indicating that the applicant had presented no problems during his incarceration, had attended various courses and programs while in prison, and was thought to represent a low/moderate risk of re-offending violently in the community. Extracts from the applicant's own statutory declaration were also provided, together with a letter of support from his employer. 28 Under the heading 'Expectations of the Australian Community', the Issues Paper noted that the Australian community might have some sympathy for the applicant, who had arrived in Australia aged 17 as the holder of a refugee visa and who might have difficulty regaining a close relationship with his two Australian-born children with whom he had apparently lost contact. However, the Issues Paper noted that the applicant had no children under the age of 18 whose interests might be affected by his removal from the country. 29 The Issues Paper recorded that, although the applicant had been married, the marriage had not survived his incarceration. Accordingly, he was not in a marital or interdependent relationship with any Australian citizen. It noted that the applicant had relatives in Sydney and other siblings in Vietnam. However, he had asserted that he was not close to his family in Vietnam, since he had never left Australia since arriving in this country in 1978. On the question of hardship, the Issues Paper extracted material from the applicant's submission and from his statutory declaration. Minister's Decision 30 On 20 September 2007 the Minister cancelled the applicant's visa. The Minister signed the Statement of Reasons submitted to him with the Issues Paper on 23 September 2007. According to the Statement of Reasons, the Minister gave primary consideration to the protection of the Australian community, taking into account the seriousness and nature of the applicant's conduct, the likelihood that such conduct might be repeated and general deterrence. The Minister considered that several of the applicant's convictions pre-dating the convictions of December 1989 added to the serious concerns raised by the convictions for murder and attempted murder. 31 The Minister recorded that he took into account the mitigating factors put forward by the applicant, in particular his lack of formal education and his arrival in Australia as a refugee. However, he found that, on balance: 'the seriousness of his offences and the number of offences he has committed over a long period which involve violence outweigh the mitigating factors put forward. I find that the information relevant to this consideration weighs in favour of cancelling [the applicant's] visa and I give this consideration great weight'. 32 The Minister noted that the applicant had not previously been warned about the risk of visa cancellation or deportation, but had been made aware that his visa could be cancelled during the 1981 interview. The Minister found that the information relevant to the risk of recidivism weighed against cancelling the applicant's visa. He gave this consideration moderate weight. 33 Since there was no evidence to suggest that the cancellation of the applicant's visa and his removal from Australia would deter others in the community, the Minister gave this consideration no weight. However, although accepting that the Australian community might have some sympathy for the applicant, on balance he took the view that the Australian community, having regard to the serious offences committed by the applicant, would expect his visa to be cancelled and for him to be removed from the country. The Minister gave this consideration substantial weight. 34 The Minister said that he took into account other considerations, in particular the extent of the disruption that would be caused to the applicant and his family in Australia by his removal to Vietnam. The Minister also took into account the fact that the applicant had two adult children in Australia and that he had attempted to make contact with them. However, the applicant had not succeeded in making contact and did not know their whereabouts. These considerations, together with the applicant's relationship with his two brothers in Australia, weighed against cancellation of the visa. The Minister gave these matters moderate weight. 35 The Minister expressed his conclusions as follows: '23. In reaching my decision I concluded that the seriousness of [the applicant's] offences and, to a lesser extent, the expectations of the Australian community outweighed all other considerations above. 24. Having given full consideration to all these matters, I decided to exercise my discretion to cancel [the applicant's] visa under s 501(2).' THIS APPLICATION 36 Although the applicant was represented by solicitors for the purpose of making representations to the Minister, he was unrepresented in these proceedings. His application relies on four grounds, as follows: '1. That the respondent exceeded its jurisdiction in making the decision that the applicant was indeed of bad character when the respondent sought to cancel the applicant's Transitional (Permanent) (BF-C) visa under subsection 501(2) of the Migration Act 1958. 2. The respondent unreasonably established that the applicant has a substantial criminal record owing to the fact that he had previously been sentenced to a term of 12 months or more of criminal incarceration. The respondent failed to adequately consider and give reasonable weight to the fact that the applicant has indeed rehabilitated significantly and is no longer the man he was once said to be by the court of law. 3. The respondent denied the applicant procedural fairness owing to disallowing the applicant from attending a hearing before the respondent in order to give oral (or documented) evidence in support of his claimed rehabilitation. 4. The respondent failed to consider the fact that the applicant has two children, both Australian-born citizens resident in Australia on a permanent basis. According to the United Nations Convention on the Rights of the Child, children ought to be given primary consideration when undertaking such proceedings as the cancellation of an applicant's visa. The respondent ought to have given more consideration to the potential hardship the applicant's children would certainly face if the applicant's permanent visa was cancelled and the applicant removed from Australia. This aspect of the respondent's decision-making points to the fact that it failed to afford the applicant natural justice.' 37 The applicant did not file any written submissions in support of his application. Not surprisingly, his oral submissions did not address the grounds identified in the application, but were limited to matters concerning his rehabilitation, family ties and lack of familiarity with Vietnam. REASONING 38 The decision by the Minister to cancel the applicant's visa was a 'privative clause decision': Migration Act s 474(2), (3)(b). Accordingly, the applicant is entitled to the relief he claims, or some variation thereof, only if he can establish that the Minister has committed jurisdictional error: Migration Act s 474(1); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In my opinion, none of the grounds identified by the applicant establishes jurisdictional error by the Minister in connection with the making of the visa cancellation decision. 39 The first ground merely asserts the existence of jurisdictional error, without providing particulars or any basis for the assertion. 40 The second ground seems to challenge the Minister's conclusion that the applicant had a substantial criminal record for the purposes of s 501(7) of the Migration Act. It is clear, however, that the applicant satisfied the definition. He was initially sentenced to life imprisonment following his conviction for murder and, subsequently, to a redetermined sentence of 21 years, with a minimum custodial term of 16 years. 41 The third ground identified by the applicant seems to suggest that the Minister was bound to afford the applicant an oral hearing before cancelling his visa. The Migration Act expressly excludes the 'rules of natural justice' in relation to visa cancellation decisions made personally by the Minister pursuant to s 501(3) of the Migration Act: s 501(5). However, the rules are not excluded in relation to a visa cancellation decision made pursuant to s 501(2), even if made by the Minister personally. 42 While the rules of natural justice (or procedural fairness) apply to the decision in this case, they do not necessarily mean that the Minister was bound to afford the appellant an oral hearing: Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, at 516, per Aickin J; Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591, at 597, per curiam. Whether there is such an obligation will depend on the circumstances including the terms of the legislation, the nature of the decision, the characteristics of the decision-maker and the factual matters, if any, in dispute: cf M Aronson, B Dyer and M Groves, Judicial Review of Administrative Actions (3rd ed 2004), at 493-494. 43 Section 501(2) of the Migration Act does not impose any express obligation on the Minister to afford a visa holder an oral hearing. By contrast, other provisions in the Migration Act do impose such an express obligation on a decision-maker: see, for example, s 425(1). Although not determinative, the contrast suggests that an oral hearing is not required before the Minister can exercise the power to cancel a visa under s 501(2) of the Migration Act. 44 In M238/2002 v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 936, Kenny J made some helpful observations on the requirements of procedural fairness in relation to a Ministerial visa cancellation decision under s 501(2). Her Honour noted (at [41]) that: 'Procedural fairness required that, before any decision was made, the Minister afford the applicant a fair opportunity to present information and argument against the cancellation of his visa. Precisely what constituted a fair opportunity depended on all the circumstances of the case, including the nature of the statutory power in question and the interests promoted by it, the interests of persons affected by the decision, and what was relevantly known by the decision-maker at the time the decision was made.' 45 Kenny J acknowledged (at [43]) that any visa cancellation decision made by the Minister has great importance to the person affected. However, her Honour also pointed out that: the power is conferred in order that the Minister can act in the public interest to protect of the Australian community. Under this provision, the legislature has entrusted to the Minister the responsibility for deciding whether the public interest should prevail over the private interest of a visa holder.' As Gleeson CJ and Gummow J stated in Minister for Immigration and Multicultural Affairs v Jia (2000) 205 CLR 507, at 539, the statutory power in s 501 is reposed in a political official, who is a member of the Executive and accountable to Parliament and the electorate. It is therefore unlikely that Parliament contemplated that every visa cancellation decision would require the Minister, as a pre-condition to the exercise of his or her powers, to afford an oral hearing to the visa holder. 46 Of course, the requirements of procedural fairness may be onerous, even without an obligation to provide an oral hearing. Procedural fairness requires the visa holder to be given an opportunity 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.' Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, at 592, per curiam, cited by Kenny J in M238/2002 v Minister, at [44]. 47 It is not necessary to decide whether there might be some circumstances in which the Minister is obliged to afford a visa holder an oral hearing before deciding to cancel that person's visa. In the circumstances of the present case, there was no such obligation. The applicant was given an opportunity to make submissions in writing and to draw relevant material to the Minister's attention. He took full advantage of that opportunity by engaging solicitors to prepare a well-presented submission on his behalf. The Minister, through his representatives, made known to the applicant the matters he needed to address. There were no substantial factual issues in dispute. The question before the Minister was whether he should exercise his discretion to cancel the applicant's visa, having regard to the uncontentious factual material before him. This was no doubt a difficult and important decision, but it was not one requiring an oral hearing. Indeed, the applicant's representatives never suggested that such a hearing was necessary or desirable. 48 The fourth ground advanced by the applicant is without substance. The Minister clearly took into account the applicant's relationship (or hoped for relationship) with his two adult children, but decided that this consideration was outweighed by others. Since the applicant's children are adults, the United Nations Convention on the Rights of the Child is of no relevance to this case. ADJOURNMENT APPLICATION 49 Although the applicant did not apply for an adjournment at the outset of the hearing, in the course of the hearing he asked for more time to engage a private solicitor. The applicant had private solicitors acting on his behalf in connection with his submission to the Minister, but they apparently no longer act for him. 50 The applicant was present at the directions hearing on 20 December 2007, when this matter was set down for final hearing on 27 February 2008. No material was presented to the Court to suggest that the engagement of a private solicitor was imminent. In these circumstances, I declined to grant an adjournment. CONCLUSION 51 The application must be dismissed. The applicant must pay the Minister's costs. 52 The Minister read an affidavit in support of his claim to a costs order, pursuant to Federal Court Rules ('FCR'), O 62 r 5(a), fixing a sum of $5,500 as the amount of the costs to be allowed. The amount of $5,500 is specified in Item 43H in Schedule 2 to the FCR as the maximum amount that may be claimed in a short form bill as costs of the proceedings in a 'migration appeal case that is finalised after a final hearing': FCR, O 62 r 40C(4), (5). The present case is not a migration appeal case, as it invokes the original jurisdiction of the Court. 53 I think it appropriate to make a costs order for a fixed amount. I consider that the applicant should pay costs fixed in the sum of $4,500. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 6 March 2008 The applicant appeared in person Counsel for the Respondent: M Cleary Solicitor for the Respondent: Clayton Utz Lawyers Date of Hearing: 27 February 2008 Date of Judgment: 6 March 2008