FEDERAL COURT OF AUSTRALIA
“W157/00A” v Minister for Immigration & Multicultural Affairs [2001] FCA 1536
MIGRATION – review of decision by Minister to cancel visa-whether Minister provided reasons for decision-whether decision involved jurisdictional error.
Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998
Migration Act 1958, s 501(2)
Administrative Decisions Judicial Review Act 1977 (Cth), s501G(1)(e)
Acts Interpretation Act 1901 (Cth), 225D
Administrative Review Council Report to the Attorney‑General (Report No 33)
De Smith, Woolf and Jowell, (5th ed), Judicial Review of Administrative Action
PP Craig “The Common Law, Reasons and Administrative Justice” (1994) CLJ 282
R. A. Macdonald and D. Lametti “Reasons for Decision in Administrative Law” 3 C.J. A.L.P. 123.
J M Evans, et al, Administrative Law – cases, text and materials (4th ed)
Re Patterson; Ex parte Taylor [2001] HCA 51 applied
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 applied
Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1 at [42] referred to
Misiura v Minister for Immigration and Multicultural Affairs [2001] FCA 133 at [26]‑[28] referred to
Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 referred to
Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 applied
Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648 applied
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 [30]‑[31] applied
Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387 referred to
Truong; Ex parte Ruddock, HCA 22 March 2001 distinguished
Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648 referred to
Vitaiki v Minister for Immigration and Multicultural Affairs [1998] 150 ALR 608 referred to
Minister for Immigration and Multicultural Affairs v Teoh [1995] 183 CLR 273 applied
Wan v Minister for Immigration and Multicultural Affairs [2001] 107 FCR 133 (FC) referred to
Suleyman, Zakariya Harun (FarahO v Minister for Immigration and Multicultural Affairs [2000] FCA 610 referred to
“W157/00A”v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W 157 OF 2000
LEE J
PERTH
31 OCTOBER 2001
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IN THE FEDERAL COURT OF AUSTRALIA |
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W157 OF 2000 |
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BETWEEN: |
“W157/00A” APPLICANT
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AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The application for review of the decision of the Respondent made on 3 July 2000 be granted.
2. The decision of the Respondent be set aside and the matter returned to the Respondent for determination according to law.
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.
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IN THE FEDERAL COURT OF AUSTRALIA |
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W157 OF 2000 |
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BETWEEN: |
APPLICANT
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AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision made on 3 July 2000 by the respondent (“the Minister”) under s 501(2) of the Act that a visa granted to the applicant in 1994 be cancelled.
2 Section 501(2) provides as follows:
“(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 Subsections 501(6) and (7) state, inter alia, that a person does not pass the “character test” if that person has been sentenced to a term of imprisonment of 12 months or more.
4 It was not in issue that by reason of s 501(6), (7) the applicant did not pass the “character test” and that s 501(2)(b) had no application to the applicant’s circumstances. (See: Re Patterson; Ex parte: Taylor [2001] HCA 51 per Gaudron J at [71]). Therefore, the Minister obtained power under the Act to cancel the visa held by the applicant.
5 The applicant, his wife, two sons and “X”, a female cousin of the wife who ordinarily resided in the household of the applicant and his wife, migrated to Australia from Burma in June 1994. At the time of emigration the applicant was 44 and the two children of the marriage were 10 and 6. In June 1995 the applicant was charged on five counts of sexual penetration of “X”, being a person who at material times was over sixteen years but under eighteen years, and under the care, supervision or authority of the applicant. “X” gave birth to a child in July 1995.
6 On 4 November 1997, after trial, the applicant was convicted of the above offences. Counsel for the applicant stated that the evidence at trial was that “X” was about 17½ at the time the offences were committed. The applicant was sentenced to two years imprisonment on each charge. The terms of imprisonment were concurrent and the applicant was eligible for parole.
7 On 1 June 1998 a deportation order made by the Minister pursuant to s 200 of the Act, was served on the applicant. Service of that order caused consideration of the parole of the applicant to be deferred. The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the Minister’s decision to order deportation of the applicant. On 5 November 1998 the order was set aside by the Tribunal. The Tribunal determined that there was little or no risk of the applicant re-offending and having regard to the interests of the children of the family there was a clear balance in favour of a decision not to deport the applicant. The applicant was released on parole on 23 November 1998.
8 On 17 December 1998 the Minister gave notice under s 501 of the Act of an intention to cancel the applicant’s visa on character grounds. Legal Aid WA, on behalf of the applicant, replied to the Minister in respect of that notice. On 10 April 1999 the Minister issued another notice of intention to act under s 501 of the Act. Again, Legal Aid WA responded to that notice. On 2 July 1999 the Minister issued yet another notice of intention to act under s 501 to which Legal Aid WA again responded on behalf of the applicant in August 1999 and December 1999.
9 On 3 May 2000 the Minister invited the applicant to comment on the proposition that Australia did not owe protection obligations to the applicant. Legal Aid WA provided a response to that invitation on 23 May 2000.
10 On 3 July 2000 the Minister cancelled the applicant’s visa. By a letter dated 7 August 2000, served on the applicant on 21 August 2000, the applicant was advised that the Minister had cancelled the visa on “7 July 2000”.
11 The grounds for review of the Minister’s decision relied upon by the applicant were first, that the decision involved an error of law in that the Minister had not taken into account a relevant consideration, namely, the entitlement of the children of the applicant “to have support from and contact with their father except where the interests of the State, or of the family, prevail over that right” (s 476(1)(e)); and second, that by failing to provide the applicant with the reasons for the decision, as required by s 501G(1)(e) of the Act, the Minister did not observe a procedure required by the Act to be observed (s 476(1)(a)).
12 As a preliminary point the Minister submitted that by reason of the terms of s 501G(4) of the Act, a decision to cancel a visa made by the Minister under s 501(2), is not subject to review on the ground of review provided by s 476(1)(a) of the Act.
13 In relevant respects s 501G provides as follows:
“(1). If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F 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; …
(3) A notice under subsection (1) must be given in the prescribed manner.
(4) A failure to comply with this section in relation to a decision does not affect the validity of the decision.”
14 According to its terms it may be thought that s 501G(4) reflected the intention of Parliament that a decision not complying with the requirements of s 501G be regarded as voidable and not void ab initio. The Explanatory Memorandum distributed with the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998, the measure which introduced s 501G, confirmed that view. Paragraph 93 of the Memorandum stated:
“New subsection 501G(4) ensures that failure to comply with the notification provisions described above does not invalidate the decision”.
15 Like provisions, albeit differently expressed, are set out in other sections of the Act which deal with decisions to cancel a visa (ss 127(3); 129(3); 500A(10)). Where the Act provides that the validity of a decision is not affected by “[f]ailure to give notification” (ss127(3), 129(3)); “failure to comply with this section in relation to a decision” (s 501G(4)); or “failure to (notify)” (s 500A(10)), it is to be noted that ss 127(3) and 129(3) apply to decisions to cancel a visa whilst s 501G(4) and 500A(10) apply to a decision to refuse a visa as well as to a decision to cancel a visa.
16 The cancellation of a visa effects an immediate change of status on the person whose visa has been cancelled. That person becomes an unlawful non-citizen, (s 15), who must be detained forthwith, (s 189), and removed from Australia as soon as practicable, (s 198). The apparent object of s 501G(4) is to ensure that any act taken pursuant to a decision made under s 501(2) is an act that is authorized by the Act notwithstanding that the requirements of s 501G may not have been complied with.
17 There is no consistency in the Act in the various provisions therein dealing with the requirements for, and effects of, decisions that cancel visas.
18 In some instances it is expressly provided that the detention of a person effected before a decision to cancel a visa has been set aside by, inter alia, a court order, or by revocation by the decision, is lawful.
19 For example, s 114 provides that if the Federal Court sets aside a decision made under s 109 of the Act to cancel a visa, the visa is taken “never to have been cancelled” but any detention of the visa holder between the “purported cancellation” and the decision to set aside the decision to cancel the visa is lawful. There is no requirement in the Act in respect of a decision to cancel a visa to which s 109 applies that written notice of the decision be given or that reasons for the decision be set out in writing and given to the visa holder.
20 A similar provision for the lawfulness of detention is found in s 501C(7) which applies if the Minister revokes a decision to cancel a visa, a decision made by the Minister under s 501(3) or s 501A(3) of the Act, being satisfied that it was in the national interest to do so. It may be noted that pursuant to ss 501(5) and 501A(4) the rules of natural justice do not apply to decisions made by the Minister under ss 501(3) and 501A(3). The provisions of s 501C(3) appear to be a statutory statement of the degree of fairness to be observed in the procedure undertaken in cancelling a visa under ss 501(3) and 501A(3). Section 501C(3) provides for disclosure of the information that provides the reason for the Minister’s decision and stipulates that the Minister receive submissions thereon and consider whether the decision to cancel the visa should be revoked.
21 There are no express provisions in the Act as to the lawfulness of the detention of a person effected pursuant to a decision to cancel a visa made under s 116 of the Act, although, as noted earlier, there is an obligation on the Minister to notify the visa holder of the decision and of the ground of the cancellation (ss 127(2)(a); 129(1)(a)). If a “business visa” is cancelled by the Minister under s 134 of the Act the Minister must give to the visa holder “the Minister’s reason for the cancellation” (s 134(7)). If that decision is set aside by the Administrative Appeals Tribunal the Minister is taken not to have cancelled the visa, (s 134(6)), but the Act is silent on the lawfulness of detention effected pursuant to the decision set aside.
22 Under s 500A of the Act, if the Minister cancels a “temporary safe haven visa” the Minister must table in the Parliament a statement that sets out the reasons for the decision. Section 500A(10), which states that the validity of a decision of the Minister to cancel a visa under ss 500A(1) or (3) is not affected by the failure of the Minister to notify the visa holder of the decision, does not require the Minister to provide written reasons for the decision, s 500A(7) having already required the Minister to table those reasons in the Parliament.
23 Section 69(1) of the Act serves a similar purpose by protecting any rights obtained, or steps taken, under the Act pursuant to a decision of the Minister to grant, or refuse to grant, a visa where that decision fails to comply with the requirements and procedures of the Act relating to the consideration and determination by the Minister of applications for visas by non-citizens. At the relevant time s 69(1) read as follows:
“Non-compliance by the Minister with Subdivision AA or AB in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.”
The explanatory words used in s 69(1), of course, illuminate the plain meaning of the subsection.
24 In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22, it was submitted to the High Court that s 69(1) was a provision that removed the entitlement to judicial review. That submission was rejected by Gaudron J who said as follows (at [104]):
“The purpose of s 69 of the Act is to ensure that an applicant’s rights are to be ascertained by reference to the Minister’s decision unless and until set aside. It says nothing as to an applicant’s statutory or constitutional rights to have a decision reviewed. Still less does it purport to excuse non-compliance with the Act or the rules of natural justice.”
McHugh J expressly agreed with Gaudron J (at [144]). The reasons of the other member of the majority, Kirby J, did not address the point. The joint reasons of Gleeson CJ and Hayne J, in dissent, did not raise any contrary construction.
25 If Parliament intended that provisions contained in s 69(1) (non-compliance with procedures for dealing with visa applications); s 127(3) (failure to notify a decision to cancel visa); s 129(3) (failure to notify a person outside Australia of a decision to cancel a visa); s 500A(10) (failure to notify a decision) and s 501G(4) (failure to comply with the section in relation to a decision), constricted or removed rights of judicial review provided under the Act, or at law, express words appropriate for that purpose would have been used.
26 Section 476, which specifies the grounds on which the Court may review a “judicially-reviewable decision” as defined in s 475 of the Act, is not affected, in terms, by s 501G(4). Section 501G(4) does not remove a decision to which the subsection refers from the class of decisions defined in s 475 as “judicially-reviewable decisions” and the subsection does not state that any ground for review provided by the Act in respect of decisions made under the Act has been removed.
27 There is no reason why the comments of Gaudron J in Ex parte Miah on the construction of s 69(1) should not apply with equal force to the construction of s 501G(4). The Minister’s submissions to this Court were made before the decision of the High Court in Ex parte Miah was delivered. The submissions relied upon decisions of several Judges of this Court (Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1 at [42]; Misiura v Minister for Immigration and Multicultural Affairs [2001] FCA 133 at [26]-[28]) which had expressed a contrary view on the construction of s 501G. The decision in Ex parte Miah dictates that reasoning different from that followed in the foregoing decisions, is to be preferred.
28 Whether, however, the failure to provide reasons for a decision as required by s 501G(1)(e), constitutes the ground for review provided by s 476(1)(a) of the Act is another question.
29 Section 476(1)(a) provides as follows:
“(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;”
30 As noted above s 501G(1) required the Minister to give to the applicant a written notice that, inter alia, set out the reasons for the decision.
31 On 21 August 2000, the applicant received a letter from an officer of the Minister’s Department in which he was informed that his visa had been cancelled under s 501(2) of the Act. The letter also stated:
“A copy of the decision record concerning the refusal of your visa application is attached for your information.”
32 The document attached, erroneously described in the covering letter as “the decision record concerning the refusal of your visa application,” was a Minute addressed to the Minister, dated 20 June 2000, prepared by an officer of the Minister’s Department. It was headed “Consideration of Possible Visa Cancellation Under s 501 of the Migration Act 1958.” Attached to the Minute was a document of 13 pages headed “Issues for Consideration for Possible Visa Cancellation Under Section 501(2) of the Migration Act 1958” (the “issues document”).
33 The “issues document” addressed the discretion exercisable by the Minister under s 501(2) of the Act and informed the Minister of relevant matters. No decision was recommended to the Minister. The “issues document” concluded as follows:
“PART E: MINISTER’S DECISION
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67. I have considered all relevant matters including an assessment of the character test within the meaning of s 501 Migration Act 1958 and the non citizen’s comments and have decided that: |
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[The applicant] passes the character test and the visa should not be cancelled. |
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[The applicant] does not pass the character test and does not satisfy me that he does pass the character test. |
Agreed/ |
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I exercise my discretion to not cancel the visa. |
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[The applicant’s] visa should be cancelled. |
Agreed/ |
34 The striking out of the printed alternatives was effected by hand and the signature of the Minister appeared immediately below.
35 It may be noted that the alternatives put before the Minister by the “issues document” appeared to misstate the discretion exercisable by the Minister under s 501(2). The visa was not cancelled by operation of the Act subject to the Minister exercising a discretion that the visa not be cancelled. Pursuant to s 501(2) the visa continued in force notwithstanding that the applicant did not pass the character test, unless the Minister decided to cancel the visa.
36 The reasons relied upon by the Minister for making the decision to cancel the visa were not identified by the Minister in a separate document. The Minister contends that the “issues document” set out the reasons for his decision.
37 It is necessary, therefore, to consider the content of the “issues document”. Under the heading “Discretion” the document set out, under various subheadings, material to be considered by the Minister.
38 Under the subheading “Protection of the Australian Community”, in a paragraph headed “(a) seriousness and nature of conduct”, some relevant facts were stated, together with extracts from the remarks made by the judge upon sentencing the applicant to a term of imprisonment.
39 Other matters considered under that subheading were “(b) likelihood that conduct may be repeated (including any risk of recidivism)” and “(c) general deterrence”. The “issues document” referred to information that suggested that the risk of re-offending was insignificant. No contrary information was put before the Minister. With regard to “general deterrence” it was suggested in the “issues document” that cancellation of the visa held by the applicant “may result in others being deterred from committing similar offences”. No information was provided as to how many visa holders constituted the class of persons considered to be at risk of committing a like offence nor whether the risk was significant. Nor did the “issues document” speculate how such persons would be informed of the cancellation of the applicant’s visa. It may be taken to be unlikely that the Minister based his decision upon this consideration.
40 The “issues document” then set out the following under the subheading “The expectation of the Australian community”:
“34. The Australian community expects non-citizens to obey Australian laws while in Australia. Crimes against children and crimes involving a breach of trust such as the one [the Applicant] had in relation to [“X”] are particularly abhorrent to the Australian community. Given the nature of [the Applicant’s] offence, the Australian community may expect [“X’s”] visa to be cancelled. The Departmental advocate at the AAT hearing made the following point:
‘Now, these offences were very serious abuse of his position of authority over [“X”] at the time. The nature of the offences makes them fall in the category of those which are so offensive to the Australian community that people who commit them are not acceptable as members of the Australian community.’ ”
41 To the extent that the foregoing paragraph appeared to advise the Minister that the facts on which the applicant had been convicted of a crime, namely, an offence against s 322 of the Criminal Code of Western Australia, would have resulted in a conviction of a like offence elsewhere in Australia, as a crime “particularly abhorrent to the Australian community”, it may be said that the “issues document” may have misled the Minister in a serious respect. Insofar as the criminal laws of the Australian States and Territories reflect the attitude of the Australian community to the offence in respect of which the applicant was convicted in Western Australia, counsel for the Minister, when asked which States, or Territories, provided for a like offence under their laws, advised that due research indicated that the applicant could have been convicted of an offence in Victoria, and possibly South Australia, but in no other State or Territory. The applicant was convicted of the crime of sexual penetration of a person between 16 years and 18 years, not of a person under 16 years, and although the offence committed by the applicant was serious, it was not the crime that the “Departmental advocate” appeared to have in mind when submissions were made by that advocate on behalf of the Minister to the Administrative Appeals Tribunal.
42 Under the subheading “The best interests of the children”, the “issues document” set out a summary of submissions made on behalf of the applicant as to the importance of the applicant’s relationship with his children. Also referred to was a report by a clinical psychologist who had assessed the applicant’s sons. That report expressed the opinion that it was clearly in the best interests of the children that the applicant not be deported. No material referred to under that subheading suggested that it was other than in the best interests of the two sons that the close relationship they had with their father be maintained.
43 Other material referred to in the “issues document” under subheadings “Other considerations”, “Refugee obligations”, “Other International obligations”, “Additional considerations and comment provided by [the applicant]” was of a general nature, neutral in content, providing no ground for cancellation of the visa.
44 The only statements in the “issues document” which could have been taken to support a decision to cancel the applicant’s visa occurred in the passage recited above under the subheading “The expectation of the Australian community” and, perhaps, a further statement that the applicant had received “government benefits for approximately forty‑four of the seventy‑two months he (had) been in the country”. The latter statement was not accompanied by any further consideration of the applicant’s circumstances. Although the applicant had a degree from Rangoon University and had taught English in Burma for twenty‑five years, as noted in the report of the psychologist attached to the “issues document”, the conviction of the applicant had made it difficult for the applicant to obtain employment. That circumstance, of course, applied to the major part of the period of seventy‑two months referred to in the “issues document”.
45 As noted above the “issues document” did not make any recommendation to the Minister and therefore, did not present to the Minister a suggested conclusion supported by appropriate reasons. The document informed the Minister of the matters to be addressed. No analysis of that material was set out to assist the Minister as to what decision should be made. It followed that if the Minister was obliged by the Act to provide reasons for his decision if he decided to cancel the visa, those reasons remained to be identified.
46 On its face, the “issues document” did not satisfy the requirements of s 501G(1)(e) of the Act. It was not possible for the applicant to refer to that document and learn how the Minister had reasoned that the visa granted to the applicant should be cancelled. Perusal of the “issues document” conveyed to a reader only that the Minister had decided that the visa should be cancelled. Perhaps the Minister put to one side the misleading material contained in the “issues document” and, after having regard to relevant considerations only, concluded that the offence committed by the applicant was so serious that that fact outweighed all other considerations, including the primary consideration of the best interests of the children of the applicant. That is not what the Minister has said, however.
47 The obligation to set out reasons, imposed by Parliament on the Minister in s 501G(1)(e), occurred some years after administrative decision‑makers were required by the Administrative Decisions (Judicial Review) Act 1977 (Cth) to provide reasons for their decisions. Parliament imposed that obligation on the Minister with knowledge of the purpose served, and expectations raised, by a duty to provide reasons which explained why a decision had been made. (See Administrative Review Council Report to the Attorney‑General (Report No 33) “Review of the Administrative Decisions (Judicial Review) Act: Statements of Reasons for Decision” at pars [5]-[23]). It may be concluded that Parliament directed the Minister to set out the reasons for the decision to provide for transparency in, and community acceptance of, the exercise of an important power vested in the Minister by the Parliament.
48 The purpose served by imposing an obligation on an administrative decision‑maker to give reasons for the decision has been described as follows:
“The beneficial effects of a duty to give reasons are many. To have to provide an explanation of the basis for their decision is a salutary discipline for those who have to decide anything that adversely affects others. (‘Having to give reasons concentrates the mind wonderfully’ per Donaldson J. (who has been a leading judicial proponent of extending the legal duty to give reasons) in Tramountana Armadora S.A. v Atlantic Shipping Co SA [1978] 2 All ER 870, 872.) The giving of reasons is widely regarded as one of the principles of good administration (See, for example, R Gregory and P Hutchinson, The Parliamentary Ombudsman (1975) p 288 (failure to give reasons can constitute maladministration). Compare G Richardson, ‘The Duty to Give Reasons: Potential and Practice’ [1986] P L 437) in that it encourages a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision‑making. Moreover, if published, reasons can provide guidance to others on the body’s likely future decisions, and so deter applications which would be unsuccessful. Further, the giving of reasons may protect the body from unjustified challenges, because those adversely affected are more likely to accept a decision if they know why it has been taken. (See, e.g. R v Secretary of State for the Home Department, ex p. Singh, The Times, June 8, (1987) QBDwhere Woolf LJ explained that it was highly undesirable for the Home Office not to give written notification of a decision on an application for asylum, not only because of the potential unfairness to the applicant, but because without notice, an applicant would be likely to receive leave to move for judicial review, whatever the real merits of his case, if he indicated that as far as he was aware no decision had been taken on his case.) In addition, basic fairness and respect for the individual often requires that those in authority over others should tell them why they are subject to some liability or have been refused some benefit. (De Smith, Woolf and Jowell, (5th ed), “Judicial Review of Administrative Action”, p 459.
49 Similar views were expressed by PP Craig “The Common Law, Reasons and Administrative Justice” (1994) CLJ 282 at 283-284:
“First, reasons can assist the courts in performing their supervisory function. This supervisory function is often based on criteria such as whether the agency took account of relevant considerations or acted for improper purposes, and these criteria are much easier to apply if the agency’s reasons are actually made evident.
Secondly, an obligation to provide reasons will often help to ensure that the decision has been thought through by the agency. This is particularly so where the agency in question deals with a large number of applications, or where the decision in question is of generalised importance for the functioning of that administrative system.
Thirdly, the provision of reasons can be of real significance in ensuring that other objectives of administrative law are not frustrated. If, for example, we decide to grant consultation rights in certain areas, then a duty to furnish reasons will make it more difficult for the decision-maker merely to go through the motions of hearing interested parties without actually taking their views into account.
Finally, a duty to give reasons can also perform a more general function. As Rabin (3) has stated, the ‘very essence of arbitrariness is to have one’s status redefined by the state without an adequate explanation of its reasons for doing so’. By way of contrast the provision of reasons can increase public confidence in, and the legitimacy of, the administrative process.
A duty to provide reasons can, therefore, help to attain both the instrumental and non-instrumental objectives which underly (sic) process rights. (4) The instrumental justification is based upon a causal connection between the presence of process rights and the accuracy of the outcome on the substance of the case: the substantive rule which is being applied will, it is thought, be more likely to be applied correctly if the individual is afforded the opportunity of being heard. The non-instrumental rationale for procedural rights has a rather different orientation. One basic aspect of this rationale is that it is part of what is owed to one as a person that one should be told what one is thought to have done and have some opportunity to respond. The Kafkaesque world is so nightmarish and dehumanising precisely because this is absent: the power of the state is brought to bear without the individual having any idea of what he or she is alleged to have done, and without any real possibility of responding to the ‘charges’. (Footnotes omitted). ”
50 Whilst administrative decision making may involve considerations that will not be revealed necessarily by an obligation to provide reasons (See: J M Evans, “et al, “Administrative Law – Cases, Text and Materials”(4th ed 1995) at 482), Parliament has determined that a duty to provide reasons that state why a decision has been made is necessary to protect the community against the arbitrary exercise of power:
‘The very essence of arbitrariness is to have one’s status redefined by the State without an adequate explanation of its reasons for doing so’ (Evans at 480). ”
51 As to the required content of such reasons, the following remarks in the Administrative Review Council Report to the Attorney‑General ([76]-[79]) are pertinent:
“The statement must be sufficiently explicit to enable the recipient to determine whether the making of the decision was an improper exercise of the power conferred by the enactment, the decision involved an error of law, the decision maker took into account an irrelevant consideration or failed to take into account a relevant consideration and like matters referred to in sections 5 and 6 of the Act: Hatfield v Health Insurance Commission (1987) 77 ALR 103, 105-6. A statement will be deficient if it states conclusions without particulars or explanations for those conclusions: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No.1) (1987) 77 ALR 577, 594-6.
A statement may state a finding by reference to some other document (for example a summary of the facts in an earlier report) but it must explain to the reader the reasons why the particular decision was taken: Maitan v Minister for Immigration and Ethnic Affairs (1987)14 ALD 307. Where recommendation are considered in making a decision the statement should incorporate those recommendations: Palmer and Minister for the Capital Territory (1978) 1 ALD 183.
The statutory obligation in this respect is on the decision maker personally. It is up to decision makers themselves to formulate in their statements the conclusions they reached on material questions of fact and the reasons for their decisions. It is not appropriate for a submission of a Departmental officer made to the decision maker before the decision maker has made the decision concerned to purport to set out findings on material questions of fact at a time before the decision is made. It is for the decision maker not the Departmental officer to set out the findings on which the decision is based. The submission should be in the form of recommendations to the decision maker and should include a summary of factual material which the person making the recommendations considers relevant to the making of the decision by the decision maker. Items in this material can then be accepted by the decision maker as relevant to his or her decision or can be rejected: Palko v Minister for Immigration and Ethnic Affairs (1987) 12 ALD 480; Maitan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 307.
Although it may be convenient in the departmental context for the pre-decisional submission to be in a form which can simply be ‘adopted’ by the decision maker should a request for a statement of reasons be received, there are, as the Federal Court said in the Palko case, ‘obvious difficulties in drafting a document intended to fulfil that function before the decision has been made’.”
52 Similar observations on the requirements of Canadian administrative law may be found in R. A. Macdonald and D. Lametti “Reasons for Decision in Administrative Law” 3 C.J. A.L.P. 123.
53 In the instant case there are no reasons which explain how the Minister made the decision to cancel the visa. It is uncertain whether the Minister had regard to, and relied upon, material put before him in the “issues document” that was misleading (for example, the material provided under the heading “Seriousness and nature of conduct”) or upon material that was incapable of providing a foundation for the decision (for example, the material under the heading “general deterrence”), or how the Minister dealt with the matter he was bound to treat as a primary consideration before making the decision, namely, the best interests of the children of the applicant.
54 It is to be noted that the obligation imposed on the Minister by s 501G(1) does not include the further obligations imposed, for example, on the Migration Review Tribunal or Refugee Review Tribunal, in respect of decisions made by those Tribunals namely, to prepare a written statement that sets out the findings on any material questions of fact and refers to the evidence or any other material which the findings of fact were based (See: s 368, s 430). However, it may be accepted that in certain circumstances the obligation in s 501G(1)(e) to provide “a written notice that: …sets out the reasons…for the decision” may carry with it an obligation to set out a particular finding of fact if the explanation why the decision was made depends upon the identification of a finding of fact upon which the Minister relied to make the decision. (See: Acts Interpretation Act 1901 (Cth), s 25d).
55 To understand the obligation imposed in s 501G(1)(e) it is necessary to look at the context provided by the Act, in particular, the arguably more limited obligations imposed upon the Minister in ss 127(2)(a),129(1)(a) and 134(7) of the Act referred to earlier, and the provisions of s 500A and s 501C.
56 Decisions made under s 500A(2) or (3) by refusing to grant, or by cancelling, a “temporary safe‑haven” visa are regarded by the Act as important. They are decisions to be made by the Minister personally, (s 500A(6)), and a statement that sets out the reasons for the decision must be tabled in Parliament (s 500A(7)).
57 Similarly, if under s 501C the Minister revokes, or does not revoke, a decision made by the Minister personally under s 501(3) or s 501A(3), namely, a decision to refuse to grant or to cancel a visa, being a decision, that inter alia, is made on the ground of national interest, the Minister must cause notice of the making of the decision to revoke, or not revoke, to be laid before Parliament (s 501C(8)). No reasons for the decision is required to be supplied by the Minister but it is to be remembered that the only adverse decision made by the Minister pursuant to these provisions would be a decision not to revoke a decision already made by the Minister and the reason for the making of the original decision to refuse to grant, or to cancel, a visa had to be provided to the visa holder, and the visa holder given an opportunity to make representations as to why the decision should be revoked (s 501C(2), (3)).
58 The context in which s 501G appears, is therefore, important. It provides that if a decision is made by the Minister under s 501(1) (to refuse to grant a visa) or (2) (to cancel a visa) or s 501A(2) and 501B(2) (setting aside the decision of the Minister’s delegate and refusing to grant, or cancelling, a visa), the Minister must give a written notice which sets out the reasons for the decision (s 501G(1)(e)). A decision under s 501(1) or 501(2) may be made for the Minister by a delegate but a decision under s 501A(2) or 501B(2) must be made by the Minister personally.
59 Significantly s 501(2) did not exclude adherence to the rules of natural justice in the making of the decision. It appears to have been assumed by the Minister that application of the rules of natural justice to a decision made under s 501(2) required the holder of a visa to be given notice that cancellation of the visa was being considered and, before the decision was made, an opportunity to comment on matters the Minister or his delegate considered to be relevant to the decision to be made. But adherence to the rules of natural justice may have had further requirements.
60 The provision of reasons by the Minister pursuant to the duty imposed by s 501G(1)(e) was a significant matter for the applicant because the Administrative Appeals Tribunal had already provided reasons for its decision that the applicant was not to be deported under s 200 of the Act. Pursuant to s 201 of the Act the applicant, as a “non-citizen”, became liable to an order for deportation under s 200 upon being convicted and sentenced to imprisonment for a term exceeding one year. Although the power exercised by the Minister under s 501(2) was a discrete power and distinct from that exercised by him under s 200, (See: Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400; Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421), the matters considered by the Administrative Appeals Tribunal in determining that the applicant should not be deported were indistinguishable from those raised for the consideration of the Minister in the “issues document”.
61 The decision by the Minister to cancel the visa made the applicant an “unlawful non‑citizen” who, pursuant to s 198 of the Act, must be removed from Australia. It followed that in those circumstances, where the applicant was, in effect, to be deported the applicant may have held a legitimate expectation that reasons that explained why a decision, contrary to that of the Administrative Appeals Tribunal had been made, would be provided to him by the Minister pursuant to s 501G(1)(e). (See: Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648).
62 The existence of such an expectation emphasised that compliance by the Minister with the requirements of s 501G(1)(e) was more than a technical duty. It was a procedure the Act required the Minister to observe to ensure that the Minister, by being subjected to the discipline of setting out in writing the reasons for his decision, would have regard to relevant considerations and exclude irrelevant considerations and, importantly, would not make the decision arbitrarily.
63 The obligation under s 501G(1)(e) to give a written notice which sets out the reasons for the decision made under s 501(2) of the Act was imposed by Parliament, as discussed above, to safeguard the integrity of such decisions. As such, it may be assumed that Parliament intended that the provision of reasons was part of the procedure to be observed “in connection with” the making of a decision under s 501(2) for the purpose of s 476(1)(a) of the Act. That is, the relevant context shows that Parliament did not intend that the words “making of” in s 476(1)(a) imported a temporal limitation that excluded as a procedure the Minister was required to observe “in connection with the making of the decision”, the preparation of a written notice that set out the reasons for the making of the decision.
64 By s 501G(1)(e) Parliament required the Minister, in making a decision under s 501(2), to have regard to the requirement that the decision had to be explained in writing in a document which set out the decision and the reasons for the decision. The creation of the document was part of the procedure to be observed “in connection with” the making of the decision. (See: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 per Gaudron J at [30]-[31]; cf per McHugh, Gummow and Hayne JJ at [77]). As noted in Administrative Review Council Report to the Attorney‑General (at [70]), the preparation of a statement of reasons is part of the decision-making process.
65 Counsel for the Minister submitted that “although the reasons of the (Minister) could have been set out more explicitly” the reason the visa was cancelled was “apparent”, and “reading between the lines” the reasons why the Minister decided as he did, could be ascertained (See: Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387 at [35]).
66 Counsel referred to the transcript of an “ex tempore” decision in a matter heard in chambers in the High Court by Hayne J (Truong; Ex parte Ruddock, HCA, 22 March 2001) where the prosecutor sought the issue of a constitutional writ against the Minister in respect of a decision made by the Minister under s 501(2) where the Minister had purported to comply with s 501G(1)(e) by nominating a document prepared by an officer of the Minister’s Department as the notice that set out the reasons of the Minister for the decision to cancel the prosecutor’s visa. In that case His Honour accepted that the document relied upon by the Minister was able to stand as a disclosure of the reasons of the Minister.
67 Whether reasons have been provided by the Minister as required by s 501G(1)(e) is a question of fact which may depend upon the acts of the Minister and the content of the document relied upon (See: Adams v Minister for Immigration and Multicultural Affairs (2001) FCA 552; Diep v Minister for Immigration and Multicultural Affairs [2001] FCA 1130; Javillonar v Minister for Immigration & Multicultural Affairs [2001] FCA 854; Ooi v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 133; Ruhl v Minister for Immigration & Multicultural Affairs [2001] FCA 648).
68 In the instant case I am unable to agree with counsel that the “issues document” constitutes the written notice required by s 501G(1)(e). It cannot be said that the “copy of the decision record” provided to the applicant on 21 August 2000 is a “written notice that…sets out the reasons…for the decision”, in that it explains why a decision adverse to the applicant was made. The document does not disclose the reasons relied upon by the Minister for the decision to cancel the visa held by the applicant. I note that in Truong, Hayne J placed considerable weight on the statement made in the covering letter, that the “copy of the decision record…enclosed sets out the reasons for the decision”, (See also: Javillonar and Ruhl). No statement to that effect was made in this matter. As noted earlier, the advice to the applicant was that a “copy of the decision record concerning the refusal of your visa application is attached for your information”. Apart from the relevant decision being a decision to cancel the visa and not a decision to refuse a visa application, it was significant that no assertion was made that the document set out the reasons of the Minister.
69 Furthermore, in Truong the material set out in the advisory document put before the Minister recited facts that were not in issue from which an obvious conclusion would follow in respect of the decision to be made under s 501(2), namely, that the visa should be cancelled. The “decision record” in that case stated that the prosecutor was a single male, 30 years of age, with a history of convictions over five years for possession, use and trafficking in drugs of dependence including heroin, not being a person known to have made any contribution to the Australian community.
70 No submissions had been made by the prosecutor, nor by anyone else on his behalf, as to why the visa should not be cancelled and accordingly no material opposing a decision to cancel the visa appeared in the document put before the Minister. Significantly, there were no children whose interests had to be taken into account as a primary consideration in making the decision.
71 Although in Truong it was also the case that the Administrative Appeals Tribunal had set aside a decision of the Minister made under s 200 of the Act to deport the prosecutor, no matters capable of carrying any weight in favour of the prosecutor were recited in the document put before the Minister.
72 As noted already, the “issues document” in the instant matter was quite different in its content. On its face it was not capable of being read as a document that set out the reasons of the Minister for a decision to cancel the visa of the applicant and the Minister did not assert to the applicant that it did.
73 It may be concluded, therefore, that the ground of review presented by s 476(1)(a) has been made out. However, the question whether that ground has been made out, as submitted by the applicant, may not be necessary to answer. The real issue may be whether the absence of reasons, or, if the ‘“issues document” is to be taken to set out the reasons of the Minister, inadequacy in those reasons, provides ground for review under s 476(1)(b), (c) or (e) of the Act.
74 Those paragraphs of s 476 provide as follows:
“Subject to subsection (2), application may be made for review…on any one or more of the following grounds:
…
(b) that the person who purported to make the decision did not have jurisdiction to make the decision;
(c) that the decision was not authorised by this Act or the regulations;
…
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;…”
75 Counsel for the applicant directed his submissions to establishing the ground of review provided by s 476(1)(e) but in truth the arguments advanced for the applicant raised the question whether ground for review was provided under either subpar (b), (c) or (e) as elements of jurisdictional error. (See: Yusuf per McHugh, Gummow and Hayne JJ at [82]-[85]; Re Patterson per Gaudron J at [82]).
76 If the Minister fails to mention a matter in reasons provided by the Minister pursuant to s 501G(1)(e) the Court may infer that the Minister did not treat that matter as a material consideration and in some cases ground for review under s 476(1) of the Act may be revealed accordingly: (Yusuf per Gleeson CJ at [10], per McHugh, Gummow and Hayne JJ at [69]).
77 Counsel for the applicant submitted that the Minister erred in law in making the decision by failing to give due consideration to the interests of the children of the applicant, and in that he failed to ascertain the best interests of the children and then determine whether those interests so ascertained were outweighed by any consideration of greater weight or magnitude.
78 It was not in issue that the interests of the children were to be taken into account by the Minister as a primary consideration in the making of the decision, the Minister not having advised the applicant that the interests of the children would not be so regarded. It was submitted by counsel for the Minister that the Minister had so acted to meet the legitimate expectations of the applicant, or the children, in that regard.
79 As discussed above, the children concerned were two sons of the marriage of the applicant and his former wife, and a daughter born to “X”.
80 At the time of the Minister’s decision the elder son was 16 and the younger was eleven. The daughter was approximately five.
81 It was not in issue that all children were Australian citizens. The obligation to consider the best interests of the children, therefore, was significant not only because of the acknowledgment of the Minister that procedurally it was a primary consideration, but, because in this case, the children as Australian citizens were entitled to expect that not only would their interests as children be assessed as a primary concern but also their interests as Australian citizens would be considered in conjunction. (See: Vitaiki v Minister for Immigration and Multicultural Affairs [1998] 150 ALR 608 per Burchett J at 614; Minister for Immigration and Multicultural Affairs v Teoh [1995] 183 CLR 273 per Gaudron J at 304‑305).
82 Under the subheading “The best interests of the children”, the “issues document” summarised material which stated that the applicant had an important role in the education and welfare of his sons, both of whom held strong attachments to their father. The “issues document” noted the opinion of the psychologist that the boys would suffer major grief and upheaval if they were separated from their father and that the Administrative Appeals Tribunal had reached the same opinion. In addition, the comments of the mother, now divorced from the applicant, were noted where she had stated that the applicant had provided daily assistance for the boys in their school work and was a very important person for their future.
83 The “issues document” contained no other material which contradicted the foregoing assessment of the welfare of the children and did not attempt to assign lesser weight to any aspect of that material. Importantly, perhaps, the “issues document” failed to inform the Minister that the children were Australian citizens. In the absence of any other statement by the Minister it may be taken that the Minister overlooked that fact when determining the decision to be made.
84 It is to be assumed also that the Minister determined that the best interests of the children of the applicant, and their interests as Australian citizens, would only be served by a decision by the Minister not to cancel the applicant’s visa. No other determination as to the interests of the children could have been made on the material before the Minister.
85 In the absence of reasons which explained how the Minister found that important consideration to have been outweighed by other matters it is difficult to know how the Minister decided that the visa held by the applicant was to be cancelled. If it is speculated that the Minister identified the “expectation of the Australian community” as the consideration which outweighed the best interests of the children and their interests as Australian citizens, then it is to be borne in mind that, as discussed earlier in these reasons, any determination by the Minister in that regard would have been based on misleading material presented to the Minister by the “issues document”, and the decision made on an erroneous footing (See: Re Patterson per Gummow, Hayne JJ at [196]).
86 If the “issues document” is to be taken to set out the reasons of the Minister then the failure of the document to explain how this issue was dealt with by the Minister meant that the reasons of the Minister in that regard were not disclosed. The reasons for a decision to cancel the applicant’s visa, being a decision contrary to the best interests of the children, a matter the Minister accepted was a primary consideration according to the procedure adopted by the Minister, would have to identify the considerations taken into account which outweighed the damage to be caused to the interests of the children by such a decision. (See: Wan v Minister for Immigration and Multicultural Affairs [2001] 107 FCR 133 at [32]-[34] (F C)).
87 The “issues document” failed to show that the Minister addressed the right question, or alternatively, dealt with that question according to law, and ground for review of the Minister’s decision was established under s 467(1)(b) or (c) for jurisdictional error, or under s 476(1)(e) in that the reasons revealed an error in the interpretation of the applicable law or in the application of that law to the facts. (See: Yusuf per McHugh, Gummow and Hayne JJ at [82], [84]). That is to say, a matter the Minister was bound to take into account was not properly addressed in the making of the decision by reason of an incorrect understanding of what the law required the Minister to do in carrying out the decision-making process. (See: Vitaiki per Burchett J at 618-619; per Branson J at 631).
88 I note that in Suleyman, Zakariya Harun (Farah) v Minister for Immigration & Multicultural Affairs [2000] FCA 610 per Matthews J at [44], Her Honour stated, in obiter comment, that failure to treat the best interests of children as a primary consideration would not constitute an error of law or “any reviewable error under s 476”. The argument addressed to Her Honour appears to have been limited to a submission on the consequences in law of a denial of procedural fairness, and the occurrence of jurisdictional error in the decision‑making function, as discussed above, was not an issue Her Honour was required to consider.
89 The decision of the Minister must be set aside and the matter returned to the Minister for determination according to law.
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I certify that the preceding eighty‑nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee J. |
Associate:
Dated: 31 October 2001
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Counsel for the Applicant: |
HNH Christie |
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Solicitor for the Applicant: |
Henry Christie |
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Counsel for the Respondent: |
M R Ritter |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
9 April 2001 |
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Date of Judgment: |
31 October 2001 |
