FEDERAL COURT OF AUSTRALIA

Misiura v Minister for Immigration & Multicultural Affairs [2001] FCA 133

IMMIGRATION – application for review of a decision of the Minister to cancel a visa – whether the Minister is bound by his own direction issued pursuant to s 499(1) of the Migration Act 1958 (Cth)– Minister is required to engage in a genuine weighing of the relevant factors in exercising discretion – adequacy of the Minister’s reasons to cancel the visa.

Migration Act 1958 (Cth) ss 476(1)(e), 476(1)(g), 499, 501(2), 501G(1)(e), 501G(4)

Halmi v Minister for Immigration & Multicultural Affairs [1999] FCA 1438 referred to

Rokobatini v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 583 referred to

Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567 cited

Nikac v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 65, referred to

Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189, cited

Gerah Imports Pty Ltd v Minister for Industry, Technology & Commerce (1987) 17 FCR 1, cited

Ooi v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 133, referred to

ANDREW MISIURA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N442 of 2000

MADGWICK J

23 FEBRUARY 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondents’ costs.

REASONS FOR JUDGMENT

HIS HONOUR:

1                     In this matter, the applicant seeks judicial review of the decision made personally by the respondent Minister, on 8 February 2000 that the applicant’s permanent visa be cancelled under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

Factual Background

2                     In 1963 the applicant arrived in Australia from England at the age of nine.  He returned to England in 1969, but then came back to Australia in 1974.  He has continued to reside in Australia until the present.

3                     In 1974 the applicant commenced employment as a chef in the hospitality industry in Australia.  In 1989, he set up his own catering business which he ran until 1990, when the business fell into financial difficulties.  Apparently as a result of these financial difficulties, the applicant began to gamble and use drugs.

4                     Between 1991 and 1994, the applicant was convicted on a number of charges of possession of amphetamines, self-administration of amphetamines and living off the earnings of prostitution.  He was fined on each occasion.  In November 1995, the applicant was convicted of supplying not less than a commercial quantity of cocaine and sentenced to a minimum term of four years imprisonment with an additional term of two years.  He was eligible for parole on 18 December 1998.

5                     On 19 November 1998, shortly before the applicant was released on parole, he was interviewed by an officer of the Department at Long Bay gaol, in relation to consideration by Departmental officers of the respondent of whether his permanent residency visa should be cancelled.

6                     On 24 January 2000, a case officer within the Department prepared a submission for consideration by the respondent regarding the possible cancellation of the applicant’s visa, but made no recommendation to the respondent.  On the basis of the information contained in the submission, the respondent cancelled the applicant’s visa on 8 February 2000. On 7 July 2000, the respondent provided written reasons for his decision. 

7                     The respondent noted that it would be in the best interests of the applicant’s children for the applicant to remain in Australia.  He also noted that the applicant had been a permanent resident in Australia since 1974 and that a return to the United Kingdom after such a long period of time and the prospect of separation from his family would cause the applicant hardship.  The respondent also considered the excellent conduct of the applicant in prison, his excellent work record in prison, his efforts to improve himself by undertaking various courses and his earlier contribution to the Australian community through his employment.  However, after noting all these factors, the respondent said:

“In reaching this conclusion I had regard to all of the factors that I have identified as pointing towards cancellation or against cancellation and I considered all of them both together and in isolation, guided by the Direction to which I have referred. With respect to my conclusion that the protection of the Australian community, and the expectation of the Australian community that it will be protected, outweighed in this particular case the interests of Mr Misiura and his defacto spouse and children. I formed the view that the need to protect the Australian community was serious in relation to Mr Misiura. I found that these needs outweighed in this case the significant hardship to him having regard to his length of residence in this country and the significant hardship to his defacto spouse and children.”

8                     It is this decision which the applicant now seeks to have reviewed.

Relevant Legislation

9                     The decision to cancel the applicant’s visa was made pursuant to s 501 of the Act which provides:

"Decision of Minister or delegate—natural justice applies"

(1)…

(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.

…

"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

(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".”

10                  As to exercising the powers to cancel a visa under s 501 of the Act, the Minister issued a direction entitled, Direction – Visa refusal and Cancellation under s 501 – No. 17 (“the Direction”) pursuant tos 499 of the Act, which provides:

“(1)     The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)               the performance of those functions; or

(b)               the exercise of those powers.

(1A)     For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)               Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)     A person or body must comply with a direction under subsection (1).”

Is the Minister bound by his or her own Direction?

11                  The submissions of the applicant rely on supposed failures on the part of the respondent to comply with the Direction issued unders 499(1).  This raises the issue whether a Minister is bound by his or her own direction.  The Direction in its preamble states:

“[t]his Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act).

…

For the purposes of this Direction the term decision-maker includes both the Minister’s delegates for the purposes of section 501 of the Act, and members of the Administrative Appeals Tribunal when conducting a review of a decision made under section 501 of the Act.”

The Direction does not explicitly include the Minister in the class of people that fall within the term “decision-maker”.

12                  The question whether, in such circumstances, a Minister is bound by his own direction has been considered in this Court.  In Nikac v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 65 Wilcox J drew a distinction between failure by the Minister to have regard to, or to properly interpret, Ministerial policy and a similar failure by a delegate.  However, Wilcox J continued at 78:

“In a situation where the Minister is free deliberately to depart from his own policy, it is difficult to see that a decision by the Minister could be rendered invalid because, in making it, he misinterpreted the policy and thus accidentally departed from it.”

13                  In Halmi v Minister for Immigration & Multicultural Affairs [1999] FCA 1438 at [54], Hill J said:

“I do not think that it can be said that the Minister is himself bound by directions he makes unders 499, although no doubt it would be appropriate for the Minister to conform to matters which he had directed others to comply with.”

A similar view was expressed by Katz J in Rokobatini v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 583:

“It is unlikely either that Parliament intended that the Minister should use subs 499(1) of the Act to give general directions to himself or that the Minister was seeking to do so in the direction.   However, it is likely that Parliament intended both that the Minister should be capable of using subs 499(1) of the Act to give general directions to those persons to whom he had delegated powers such as that unders 200 of the Act and that the Minister was seeking to do so in the direction.”

14                  I respectfully agree with these interpretations of the section.  As submitted by counsel for the applicant,s 499 allows the Minister to issue directions which structure the exercise of discretion under the Act and promote consistency in decision making.  However, there is nothing in the Act to suggest that the Minister is bound to follow that direction when personally making a decision under s 501 of the Act.  Nevertheless, it would seem just and fair that the Minister should in general do so and that, if the Minister should choose not to follow the same criteria he had directed others to observe, he would indicate his intention, in advance, to depart from the direction.  In other words, considerations of “procedural fairness” or “natural justice” may apply.

15                  It would appear that here the Minister did in any case intend to follow the Direction.  The Minister indicated in his Statement of Reasons:

“I still consider that the Direction properly indicates how I consider the powers and functions of the kind here under consideration should be exercised.

…

In accordance with the Direction I treated, as primary considerations, the protection of the Australian community; the expectations of the Australian community and the best interests of the child.”

16                  In my opinion, any error by the Minister in interpreting his own direction or in inadvertently failing to observe it is not judicially reviewable in this Court.  This Court can only intervene on a ground referred to in s 476(1).  If the Minister was not legally bound to observe the direction he had given to others, then none of paras (a) – (e) (being the only possibly relevant grounds) could apply unless the Minister’s decision involved a breach of the rules of natural justice (which it possibly did) or was a legally unreasonable exercise of his power.  But a want of natural justice and unreasonableness are specifically put beyond the purview of this Court:  s 476(2).  I should add that, although there is authority that a misconstruction of a non-binding document by a decision-maker may amount to legal error, (see Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189; Gerah Imports Pty Ltd v Minister for Industry, Technology & Commerce (1987) 17 FCR 1) that is because it may involve failing to take into account relevant material or taking into account irrelevant material, grounds made unavailable for review by ss 426(3)(d) and (e):  Gray at 208, Gerah Imports at 15, J A Pye (Oxford) Estates Ltd v West Oxfordshire District Council and the Secretary of State for the Environment [1982] JPL 557 at 579.  The s 476(1)(e) concept of “error of law” is limited only to misinterpretation of “the applicable law” or a wrong “application of the law to the facts as found” by the decision-maker.  In my view such errors of law do not encompass mistaken interpretations of non-binding written criteria voluntarily resorted to by the decision-maker.  At least the position seems clear in relation to a Minister referring to his/her own policy.

17                  This finding makes it unnecessary to deal with the submissions of the applicant that deal with the alleged failures on the part of the respondent to comply with various parts of the Direction.

18                  Nevertheless, although the respondent was not bound by the Direction, there was still a requirement that there be a genuine weighing of relevant factors.  The Minister is given a discretion under s 501 in effect to see to the expulsion of someone from Australia.  This is apt to be of profound importance to the life of that person and to the lives of his or her family.  Such a decision cannot be made without a consideration of relevant factors on pain of a court concluding that there has been a misunderstanding of the law or a constructive failure to exercise jurisdiction, either way leading to an unauthorised decision; see Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567.  Among the pre-eminent, plainly relevant factors, binding direction or no, is the extent of hardship for the visa-holder and for members of his or her family.

19                  On a fair reading of the respondent’s Statement of Reasons, it seems to me that it is not shown that the respondent failed to engage in a balancing exercise of the kind required.  I refer to the summary of the Minister’s reasons given at para 7 above.  Although the decision to cancel the applicant’s visa may seem harsh, given the outstanding progress the applicant had made since his release on parole and the fact that the respondent had open to him the alternative of deferring his decision to see how the applicant’s rehabilitation proceeded, this would at best go to questions of the reasonableness of the respondents’ decision.  That is not within the jurisdiction of this court to determine:  s 476(2)(b).  Therefore, this ground of review is not made out by the applicant.

Was there evidence to support the Minister’s conclusion?

20                  It was submitted for the applicant that the decision of the respondent was reviewable under s 476(1)(g) (as explained by subs 4(b)) of the Act, as based on the existence of a particular fact which was not supported by any evidence.  The respondent determined that the conduct of the applicant may be likely to be repeated and therefore the applicant represented an ongoing threat to the Australian community.  In his Statement of Reasons the respondent said:

“I note that Mr Misiura was released into the community on 18 December 1998, has honoured his parole commitments and has not come to the notice of the authorities for any illegal activities since that time.

…

I further note that at the time of my decision Mr Misiura had only been free in the community for a period of a little over 13 months. In my view that is not sufficient time to effectively demonstrate his commitment to any program of rehabilitation.”

It was not disputed that the applicant’s date of release, in the sense of being when the applicant was returned to the community from prison, is a “particular fact” within the meaning of s 476(4)(b), as it is a factual link in the chain of reasoning that led the respondent to the decision that the applicant’s visa should be cancelled.

21                  The applicant began a work release program in September 1997, which continued until his release on parole on 18 December 1998.  During this work release program, the applicant worked as a chef in a restaurant from Wednesday till Sunday.  Under this program, the applicant left gaol at 10am and would return to gaol at approximately one o’clock the next morning, when he had finished working at the restaurant.  It was submitted that the period of time the applicant was on work release amounted to his having being released into the community, so that the respondent had erred in taking the applicant to have been released into the community on 18 December 1998.

22                  In my view, there was material to justify the Minister’s view.  It cannot be said that the supposed fact, namely that “the applicant was released into the community on 18 December 1998”, did not exist.  I do not accept that being on a work release program necessarily constitutes being released into the community and being “free in the community”.  The nature of work release is that the offender goes to his/her workplace, to that place only and then must return to the gaol every evening.  There is a constant threat that if the offender does not meet the guidelines of his/her release, the program may be summarily terminated and release on parole, as soon as would be otherwise possible may be jeopardised.  There is, under the work release arrangements, compared with release on parole, minimal opportunity for an offender to re-offend.  It was therefore open to the respondent to look only at the period from 18 December 1998 as the time during which the applicant was “free in the community” and to base his decision on that fact.  It follows that the ground of review envisaged by s 476(1)(g) is not made out.

Adequacy of reasons on material questions of fact

23                  Counsel for the applicant submitted that in the Statement of Reasons, the respondent stated that there was a “real risk” that the applicant might re-offend, but that he did not refer to the evidence or other material on which this finding was based.  This was said to constitute a failure to comply with s 501G(1)(e) of the Act, which required the Minister to give to the applicant a “written notice that … sets out the reasons … for the decision”.

24                  In the Statement of Reasons, the respondent said:

“I note that Mr Misiura was released into the community on 18 December 1998, has honoured his parole commitments and has not come to the notice of the authorities for any illegal activities since that time. I note that Mr Misiura has the support of his de facto spouse and family who have helped him to readjust in the community. He also has had employment during the work release program and has continued in employment since the time of his release. I note also that whilst in prison Mr Misiura was of good behaviour and also undertook a number of courses and participated in the work release program. It is also noted in his Parole report that he remained drug free during his incarceration. However I give those matters little weight, as a factor in the commission of Mr Misiura’s offence was clearly financial pressure and I consider that there is a real risk that he will again be tempted to involve himself in the illicit drug trade, particularly if he is placed under other financial pressures.

…

I further note that at the time of my decision Mr Misiura had only been free in the community for a period of a little over 13 months. In my view, that is not sufficient time to effectively demonstrate his commitment to any program of rehabilitation.

…

For the reasons I have referred to above, I find that there is a risk of recidivism which agitates against Mr Misiura being of good character.”

25                  In my view this sufficiently indicates why the respondent took the view, despite all the positive factors in the applicant’s favour, that there remained a “real risk” that the applicant would re-offend.  It is quite apparent that the respondent’s reasons were:

(1)               the applicant’s crimes had been financially motivated and such motivation could well re-occur; and

(2)               his crime-free time back in the community was not long enough to dispel the respondent’s fear to which reason (1) gave rise.

26                  The policy considerations as to why administrative decision-makers are required to give reasons are analogous to those believed are the common law requirement that judges give reasons.  Relevantly, those considerations are (as I summarised other judges’ views in Ooi v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 133 at [7]):

“… 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.”

The Minister’s reasons were sufficient to satisfy any concern based on such criteria.  The adequacy of reasons depends on the circumstances of the particular case:  see e.g. Fry v McGufficke [1998] FCA 1499.  The “reasons” were, in my view “set out” within the meaning of s 501G(1)(e).  The reasonableness, far less the merits, of the respondent’s conclusions cannot be reviewed in this Court.  To that extent, I find that the submission that the respondent did not set out his reasons on this finding of fact is not made out.

27                  In any case, the applicant’s claim for judicial relief is, in my view, answered by s 501G(4) which provides:

“A failure to comply with this section in relation to a decision does not affect the validity of the decision.”

28                  There is no warrant to take an artificially narrow view of this subsection.  The intention was plainly to prevent a decision such as the present being undone for failure, among other things, to set out the reasons for it.  The provision is of a piece with others in the Act that put aliens, as compared with citizens, in a position of a serious relative disadvantage as to legal redress in relation to government action, c.f. Wu v Minister for Immigration & Multicultural Affairs [2001] FCA 89.

Disposition

29                  The decision made by the respondent to cancel the visa of the applicant rather than to defer a decision on the matter may appear on the evidence to have been harsh.  That is not for me to decide.  However, it is a decision which does not contain any error of law that is remediable within the jurisdiction of this Court. 

30                  Accordingly, the application for review is dismissed.  The applicant is to pay the respondent’s costs.

Associate:

Dated:              23 February 2001