FEDERAL COURT OF AUSTRALIA

Ooi v Minister for Immigration & Multicultural Affairs [2000] FCA 514

IMMIGRATION – application for judicial review of decision to cancel permanent residency visa – obligation to give reasons under s 501(2) – content of such obligation – interim relief to secure release from custody sought – power of Court to order release from immigration detention in circumstances where Minister’s decision had been stayed – meaning of “effectiveness of the hearing and determination” includes – discretion to exercise such power

Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713, followed

Halmi v Minister for Immigration and Multicultural Affairs [1999] FCA 1438, followed

Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567, followed

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, followed

Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, followed

Migration Act 1958 (Cth), s 189, 196(1) & (3), 482, 499, 501(2), 501G(1) & (4)

CHIN LYE OOI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1360 of 1999

MADGWICK J

11 FEBRUARY 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The respondent is to provide reasons for his decision to cancel the applicant’s permanent residency visa made on 14 October 1999 within 21 days.

2.                  The costs of the proceedings are reserved.

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1                     In this matter the applicant, Mr Chin Lye Ooi, seeks judicial review of a decision made personally by the respondent, the Minister for Immigration and Multicultural Affairs on 14 October 1999 to cancel his permanent resident visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

Factual background

2                     The applicant arrived in Australia on 18 February 1976 and was granted permanent residency in 1981.  In 1994 he pleaded guilty in the District Court of New South Wales to two counts of supplying heroin and was subsequently sentenced to a minimum term of seven years imprisonment.

3                     On 14 October 1999 the respondent decided pursuant to s 501(2) of the Act that the applicant did not pass the character test, that the applicant had been unable to satisfy the respondent that he did pass the test, and that his visa should be cancelled.  On 26 October 1999 a letter issued from the Department of Immigration and Multicultural Affairs advising the applicant of the visa cancellation.  The applicant claims that he did not receive this letter.

4                     Section 501G(1) of the Act relevantly provides:

“If a decision is made under subsection 501(1) or (2)…to:

(a)       refuse to grant a visa to a person; or

(b)       cancel a visa that has been granted to a person;

the Minister must give the person a written notice that:

(c)        sets out the decision; and

(d)               specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)               sets out the reasons (other than non-disclosable information) for the decision”.

5                     The applicant claimed that the respondent had failed to notify him as required by s 501G and that there had been a failure to comply with the General Direction issued under s 499 of the Act.

6                     As the hearing proceeded it became apparent that the best course was to adjourn the hearing and to order that the respondent comply with s 501G of the Act.

Obligation to give reasons

7                     It is manifest from the terms of s 501G(1) that the respondent is obliged to furnish the applicant with reasons for his decision.  The requisite content of those reasons is to be gleaned from the relevant statutory context, but also from the rationale underlying such a statutory duty.  Summarising the cases referred to by Sackville J in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414 - 415, that rationale may be said to include the following considerations:  first, reasons should be such that the disappointed party may understand why the decision went against him or her; second, that party must be put in a position such that he or she may decide whether there is any error in the reasoning worth challenging; third, reasons ensure public confidence that decisions are appropriately and fairly made; fourth, and in aid of the third consideration, the provision of reasons imposes an intellectual discipline on the decision-maker to ensure that close attention is given to the matter, that extraneous matters do not cloud the decision and that, in accordance with the statutory function in question, the power is properly discharged. 

8                     There is nothing in the relevant statutory context which would indicate that any of those aspects of the rationale are to be regarded as diminished.  Indeed, on the contrary, since the inevitable consequence of this decision is that a man, who was lawfully resident (and who was with a trivial exception a law-abiding resident) in Australia for sixteen years, would lose his liberty, pending deportation, without any prospect of conditional release no matter how small the interim risk that he might pose to the Australian community may be.  It is trite that the sufficiency of reasons can only be judged in the context of the facts and circumstances of the particular matter at hand. 

9                     The real question here was why a number of factors should be thought not to outweigh the very serious single crime committed by the applicant against the Australian people.  Those factors can be summarised in this way:  firstly, the applicant's long history of crime-free and apparently productive residence in Australia before the commission of the serious crime to which I have referred;  secondly, his history after the commission of that crime as, apparently, a model prisoner and the uncontradicted opinions that he is both unlikely to offend again and is a remarkably good worker;  thirdly, the hardship that would be caused to his conspicuously loyal, loving and blameless de facto wife, herself an Australian citizen;  fourthly, the very real hardship that would be occasioned to him by deporting him at the age of 50 to a country where he last permanently resided nearly a quarter of a century ago and a country with a standard of living considerably inferior to that of Australia.  That question is not answered by simply saying, in effect, that “in my discretion those factors do not outweigh the applicant's commission of that crime”.

10                  The Minister's attention was specifically invited by his departmental advisers to a direction which he had purportedly issued pursuant to s 499 of the Act.  Another important matter left unanswered, except I think by a somewhat uncertain inference from the materials presently available to the applicant, is whether the Minister did consider that that direction bound him in the sense that he had to follow the weightings attributed to various factors outlined by it regardless of the particular circumstances of the case.  In Halmi v Minister for Immigration and Multicultural Affairs [1999] FCA 1438, Hill J expressed a view that the Minister would not be so bound, although he referred to the propriety of the Minister, in general, applying to himself the same standards as he would expect his officers to apply. 

11                  A further and perhaps more important matter is how the Minister interpreted that document.  In this regard guidance has been given as to the interpretation of such directions by members of this Court, explicitly in Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238 and in Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567, and implicitly in Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713.

12                  The rationale of the duty to give reasons and those important questions are not met by the course of action taken by the Minister of merely responding to what might be best described as a multiple choice shorthand form of decision prepared for him by his departmental officers.  The form of the submission to the Minister encouraged him not to give further reasons.  Having regard to s 501G(1)(e) and to the well known, indeed one may fairly say perennial, discussion in this Court of what is needed to discharge statutory obligations to give reasons, this is somewhat unfortunate.

Power to order a stay

13                  The applicant made an interim application that the Minister’s order be stayed and that he be released from immigration detention pending the provision of reasons.  In relation to the power to order a stay s 482 relevantly provides:

“(2)     If an application is made to the Federal Court under section 476 or 477 in relation to a judicially-reviewable decision, the Federal Court or a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.

(3)              The orders that may be made under subsection (2) are orders staying, or otherwise affecting the operation or implementation of the judicially-reviewable decision, or a part of that decision.

(4)              The Federal Court or a Judge of that Court may, by order, vary or revoke an order in force under subsection (2) (including an order that has previously been varied under this subsection).

(5)       An order in force under subsection (2):

            (a)        is subject to such conditions as are specified in the order; and

            (b)        has effect until:

(i)                 if a period for the operation of the order is specified in the order - the end of that period or, if a decision is given on the appeal before the end of that period, the giving of the decision; or

(ii)               if no period is so specified - the giving of a decision on the appeal.”

14                  In Halmi Hill J concluded that there is power to order a stay notwithstanding s 196(3) of the Act, which provides in a case such as this:

“To avoid doubt subsection (1) [which provides that an unlawful non-citizen who has been detained must be kept in immigration detention pending removal, deportation or the grant of a visa] prevents the release, even by a court, of an unlawful non-citizen by detention (otherwise than for removal or deportation) unless a non-citizen has been granted a visa.”

At para 36, Hill J said: 

“There is no doubt that s 196(3) was intended to preclude an application being made to the Court to release an unlawful non-citizen who has been detained under s 189 of the Act.  Mr Halmi was detained under that section.  Absent the decision to revoke his visa being set at naught, or suspended, the Court would clearly have no power to make an order releasing him.  However, it is likewise true that if the Court were to set aside the decision to revoke the visa, the detention would be unlawful and to continue to detain an applicant would render the Minister liable to damages.  It would be strange that the Court could not, in such circumstance make an order for a release, merely because the original detention came about under s 189.  If the Court’s decision operated ab initio to revoke the decision, then it may be argued that the matter is dealt with in s 196(2) which provides:

‘To avoid doubt, subsection (1) does not prevent the release from immigration detention of a lawful non-citizen.’

However subs (2) is merely to avoid doubt – I would think that the result would have followed for the reason I have already given.”

15                  I respectfully agree with this.  If the Court stays the operation of the decision to cancel the visa then the applicant, to that extent, would be reinstated to his former position in law as a “lawful non-citizen” under the Act.  As such neither s 189, nor anything else, would authorise his continued detention while the stay of the legal effect of the operation of the cancellation decision remained in effect.

16                  The other aspect debated was whether in circumstances like those of this case an interim order staying the operation of the decision to cancel the visa could be for the purpose, as set out in s 482(2), “of securing the effectiveness of the hearing and determination of the appeal”.  It is true that there are passages in Halmi which, if read alone, could support the view that the “effectiveness” referred to is limited to what might be called due accomplishment of the actual processes of hearing and determination.  However, reading Hill J's decision in that case as a whole, it seems to me that that is not what his Honour meant.  In any case, such an interpretation is not what I think is meant by s 482(2).  The word “effectiveness” can be understood, in this context, to have as its ordinary meaning “the capacity to achieve an intended purpose”.  There is no reason to interpret the word more narrowly than that, especially in the context of a grant of power to a superior court and, as the present case shows, in a context where the exercise of the Court's jurisdiction and of the possible power concerned might affect the actual liberty of a long time lawful resident in this country.

17                  Applying such a meaning, one of the intended purposes of a hearing and determination of a case such as the present is the ascertainment of the rights and liabilities of the parties.  Another is to grant remedies which, so far as is lawful and possible, can put the parties in the position in which they ought to have been, had those rights and liabilities been correctly observed.  If Mr Ooi should succeed in impugning the lawful authority of the cancellation decision then a necessary consequence, and a principal consequence sought by him, will be his release from administrative detention.  If it should take the Court some time, as might normally be expected, to arrive at a decision, and if the decision should ultimately be in his favour, then to the extent that he remains in custody pending the further hearing of the matter and the period until a decision is reached, one of the purposes of the hearing and determination would to that extent have been frustrated.  Hence it may well be that, to secure the, “effectiveness of the hearing and determination”, the Court should grant a stay.

18                  Assuming the power to stay exists, the question remains whether there is any occasion for its exercise.  Section 501G(4) states that:  “A failure to comply with this section in relation to a decision does not affect the validity of the decision.”  There is in my opinion an arguable case that s 501G(4) only goes to save the validity of a decision made under s 501G until the Court determines the lawfulness of the matter.  In that sense there is a real question to be tried and the occasion for a consideration as to whether the Court should exercise its discretion is enlivened.

19                  In my view the discretion should be exercised against the interim relief sought for the following reasons.  The point ingeniously argued by Mr Johnson, counsel for Mr Ooi, does not appear to me as presently advised, to have real strength.  I say as presently advised because I have not had the advantage of the full development of the argument by either counsel.  Second, whereas there is some reason to think that the prisoner's case might improve upon the furnishing to him of the reasons for the Minister's decision, that is only a speculative matter.  Third, while an unwarranted loss of liberty truly is a most serious matter, because of the applicant's previous period in prison the fact is that he is likely to endure that loss of liberty better than many other people.  Fourth, the Act manifests in s 189 and s 196(1) and (3) what appears to be truly a draconic policy against unlawful non citizens having their liberty in this country.  However, those provisions appear to be constitutional at least in their operation in the circumstances of the present case.  My preliminary impression is that the respondent appears to have the better of the ultimate argument, and therefore it seems to me that I should be extremely cautious about permitting a possible infringement of such an uncompromising legislative policy.

Disposition

20                  In this matter I will order that the respondent Minister provide reasons for his decision in pursuance of his obligation under s 501G(1)(e) of the Act within 21 days.  In relation to the application for orders which would have the effect of staying the operation of the decision to cancel the visa I have come to the conclusion that I would have power to make such an order.  As a matter of discretion, I decline to do so, at least at this stage.  The cost of the proceedings to date will be reserved.

Associate:

Dated:              11 February 2000