FEDERAL COURT OF AUSTRALIA

Osborne v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1113

MIGRATION – cancellation of visa – notification of intention to cancel – no express statutory requirement – implied requirement for notification – implied requirement that reasonable steps be taken – notification to last known address – visa holder no longer residing at last known address – no actual notice of intention to cancel received – no error of law on part of Minister – whether ouster clause applicable – reasonable notification essential condition of cancellation

Migration Act 1958 (Cth) s 501. s 504, s 474

Judiciary Act 1903 (Cth) s 39B

Wang v Minister for Immigration & Multicultural Affairs  [2002] FCA 157 cited

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 cited

JASON DEPORIS OSBORNE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W114 OF 2002

FRENCH J

9 SEPTEMBER 2002

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     Jason Deporis Osborne was born at Napier in New Zealand on 4 November 1979.  He is a New Zealand citizen.  He entered Australia on 5 August 1994 at Perth.  He was issued with a TY-444 Special Category Visa which entitled him to remain indefinitely in Australia. Mr Osborne’s mother, four of his brothers and four of his sisters live in Western Australia.  He also has four uncles and aunts who live in Western Australia.  His father and one brother and sister live in New Zealand.  He has no contact with his father or his other siblings in that country.  He has a girlfriend whom he intends to marry and who is an Australian citizen.  His son by that relationship, Matinga, was born on 17 October 2001. 

2                     On 30 November 1999, Mr Osborne was sentenced in the District Court in Perth for offences of burglary, driving without a motor driver’s licence, reckless driving, breaches of bail, damage, and making a false bail undertaking.  The effective total sentence was eighteen months with parole.  The sentence was backdated to commence on 19 August 1999.  On 2 March 2000, Mr Osborne was sentenced to a further fifteen months imprisonment on charges of assault occasioning bodily harm.

3                     On 27 July 2000, Mr Osborne was interviewed at Canning Vale Prison by an officer of the Department of Immigration and Multicultural Affairs.  In the course of that interview he told the officer that his mother resided at 46 Koondoola Avenue, Koondoola.  He told the officer that upon his release on parole he intended to move in with his mother as he planned to work with his uncle who had a plastering business.  That was his last address before his imprisonment as he had lived with his mother from June 1999 until he was taken into custody on 18 August 1999.  Mr Osborne was released on parole on 3 September 2000 and completed that parole on 2 February 2001. 

4                     On 23 July 2001, an officer of the Cancellation and Detention Section of DIMA sent a letter addressed to Mr Osborne at 46 Koondoola Avenue, Koondoola.  In that letter the officer advised that the Minister was considering whether to cancel his visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).  He was provided with an opportunity to give written comments or information relevant to that decision.  The return date for such comments and information was 13 August 2001.  A further letter dated 4 September 2001 was sent by registered mail to the same address and delivered there on 6 September 2001.  A copy of the new Ministerial Direction No 21 under s 499 of the Act was attached.  Mr Osborne was invited to provide any written comments to the DIMA office by 25 September 2001.  The letter stated, inter alia:

“If you do not respond by this date, a decision on whether there are grounds to cancel your visa will be made using information already held by the Department.”

5                     No response to the preceding letters was received.  Mr Osborne was in fact then living in a house at Cato Place, Morley.  Following his release from gaol he had lived with his mother for three months and had then moved into the Morley house.  He said he received neither of the notices.  He said in cross-examination that he would usually see his mother about once a week.  She did not tell him of the DIMA letter of 23 July 2001.  He said she was going to and from New Zealand.  She had been away to New Zealand for four weeks in 2001 when his grandfather died there. 

6                     Mr Osborne said that he was told by friends in September 2001 that a registered letter had been sent to him.  He did not ask his mother for the letter because he was unaware that she had it.  He said he made inquiries as to who had the letters.  In re-examination at the hearing on 12 July 2002 he said that he had found out about the letters only three or four months before.

7                     On 13 February 2002, the Minister decided to cancel Mr Osborne’s visa.  The cancellation decision was based upon a departmental submission.  The Minister was informed in the submission that Mr Osborne had been notified by mail at his residential address on 23 July 2001 of the intention to consider the cancellation of his visa.  The Minister was also informed on 4 September he had been further notified by mail of the changes to the Minister’s direction under s 499 and invited to submit any further comment.  In each case the Minister was informed that he had not responded to the letters.  Reference was then made to his criminal record, both juvenile and adult.  Extracts from sentencing remarks in the District Court and in the Magistrates Court were set out.  Under the heading “The Best Interests of the Children” it was stated that he had no children.  In the event, the Minister personally signed a minute which included the following statements:

“PART E: DECISION

[42] I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and Mr Jason Deporis OSBORNE’s comments, and have decided that:

.

.

.

(d)       I reasonably suspect that Mr Jason Deporis OSBORNE does not pass the character test and Mr Jason Deporis OSBORNE has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501 OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.”

A notice of the cancellation of the visa dated 12 March 2002, was hand delivered to 46 Koondoola Avenue, Koondoola on 3 April 2002.  It is said that Mr Osborne was served with a copy of the notice.  He was taken into immigration detention on the same day. 

8                     On 17 April 2002, Mr Osborne lodged an application for review of the decision to cancel his visa.   An amended application was filed on 10 July 2002. 

The Grounds of the Application for Review

9                     The application invokes the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth).   The two stated grounds are as follows:

“1.       That the decision made by the Respondent Minister dated 12 March 2002 be set aside on the grounds that the procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed, more particularly that the Respondent Minister in deciding to cancel the Visa failed to have regard to sub-section 501(2)(b) in that he did not afford the opportunity to the Applicant to satisfy the Minister that he passed the character test by failing to serve notice upon the Applicant and by reason thereof the Respondent Minister failed to consider all of the primary considerations referred to in Ministerial Direction No 21 given pursuant to s 499 of the Act, and failed to consider the rights of the applicant’s child, who is an Australian Citizen by birth, contrary to Article 3.1 of the United Nations Convention on the Rights of the Child;

2.         Alternatively, that the decision made by the Respondent Minister dated 12 [March] 2002 be set aside on the grounds 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, in that in deciding to cancel the Visa failed to have regard to sub-section 501(2)(b) in that he did not afford the opportunity to the Applicant to satisfy the Minister that he passed the character test by failing to serve notice upon the Applicant and by reason thereof the Respondent Minister failed to consider all of the primary considerations referred to in Ministerial Direction No 21 given pursuant to s 499 of the Act, and failed to consider the rights of the applicant’s child, who is an Australian Citizen by birth, contrary to Article 3.1 of the United Nations Convention on the Rights of the Child.” 

Statutory Framework

10                  Section 501 of the Migration Act as it stood at the time of the decision to cancel Mr Osborne’s visa was in the following terms, in the relevant parts:

“501(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

     (2)  The Minister may cancel a visa that has been granted to a person if:

            (a)        the Minister reasonably suspects that the person does not pass the character test; and

            (b)        the person does not satisfy the Minister that the person passes the character test.

     (3)  The Minister may:

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

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

            if

            (c)        the Minister reasonably suspects that the person does not pass the character test; and

            (d)        the Minister is satisfied that the refusal or cancellation is in the national interest.

.

.

.

(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

            .

            .

            .

            (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;

.

.

.

(7)       For the purposes of the character test, a person has a substantial criminal record if:

            .

            .

            .

            (c)        the person has been sentenced to a term of imprisonment of 12 months or more; or

            (d)       the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;”

11                  Section 504(1)(e) of the Act authorises the making of regulations:

“(e)     making provision for and in relation to:

            (i)         the giving of documents to;

            (ii)        the lodging of documents with; or

            (iii)       the service of documents on;

            the Minister, the Secretary or any other person or body, for the purposes of this Act;”

12                  At 23 July 2001, when the first of the two notices was sent to 46 Koondoola Avenue, reg 5.02A of the Migration Regulations applied to a document relating to:

“(a)     the proposed cancellation of a visa under the Act that is to be given to the holder of the visa.”

Subregulation 5.02A(2) provided that:

“(2)     For the Act and these regulations, a document must be given to a person who is the holder, or former holder of the visa:

            (a)        by giving it to the person personally; or

            (b)        by sending it to the person’s residential or business address last known to the Minister; or

            (c)        ….”

Regulation 5.02A was repealed by Statutory Rule 206 of 2001 with effect from 10 August 2001.  At that time a new regulation 2.55 was added.  Subregulations 2.55(1) and (3) provided as follows: 

 “(1)    This regulation applies to:

            (a)        the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and

            (b)        the giving of a document under subsection 501G(3) of the Act relating to a decision to cancel a visa under subsection 501(1) or (2) or 501A(2) or section 501B or 501F of the Act; and

.

.

.

(3)       For a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:

            (a)        by handing it to the person personally;

            (b)        by handing it to another person who:

                       (i)         is at the person’s last residential or business address known to the Minister; and

                       (ii)        appears to live there (in the case of a residential address) or work there (in the case of a business address); and

                       (iii)       appears to be at least 16 years of age;

            (c)        by dating it, and then dispatching it:

                       (i)         within 3 working days (in the place of dispatch) of the date of the document; and

                        (ii)        by prepaid post or by other prepaid means;

                       to the person’s last residential address, business address or post box address known to the Minister;

            (d)       by transmitting the document by:

                       (i)         fax; or

                       (ii)        e-mail; or

                       (iii)       other electronic means;

                       to the last fax number, e-mail address or other electronic address known to the Minister.

(4)       For a document mentioned in paragraph (1)(b):

            .

            .

            .

            (b)       if the person has held the visa for at least 1 year when the document is to be given:

                        (i)         Immigration must try to find the person; and

                       (ii)        the Minister must give the document in one of the ways mentioned in subregulation (3).”

Statutory Framework – The Privative Clause

13                  As a result of amendments to the Act embodied in the Migration Legislation Amendment (Judicial Review) Act 2001, which came into effect on 2 October 2001, s 474 was introduced into the Act.  The new section created a class of decision called a “privative clause” decision.  That is defined in s 474(2) thus:

“In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).”

Section 474(3) defines “decision” in very broad terms thus:

“A reference in this section to a decision includes a reference to the following:

(a)       granting, making, suspending, cancelling, revoking or refusing to make an order or determination;

(b)       granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c)        granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

(d)       imposing, or refusing to remove, a condition or restriction;

(e)        making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

(f)        retaining, or refusing to deliver up, an article;

(g)       doing or refusing to do any other act or thing;

(h)       conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

(i)        a decision on review of a decision, irrespective of whether the decision on review is taken under this Act, or a regulation or other instrument under this Act, or under another Act;

(j)        a failure or refusal to make a decision.”

14                  Section 474 which is the operative section in the clause provides thus:

“474(1)  A privative clause decision:

(a)       is final and conclusive; and

(b)       must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)        is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

The Notice Requirement

15                  It was submitted for Mr Osborne that his last known address at the time of his departmental address was the Canning Vale Prison.  While the relevant DIMA officers might have speculated that it would go to his mother’s address, this was not known.  Neither of the letters of 23 July or 4 September could comply with the requirements of regs 5.02A or 2.55 because there was at the time they were sent no last known address given that he had been released from Canning Vale Prison.  There was no response from Mr Osborne and therefore no basis upon which it could be said that he failed to satisfy the Minister that he passed the character test.

16                  Reliance was placed upon the decision of Mansfield J in Wang v Minister for Immigration & Multicultural Affairs [2002] FCA 157.  An appeal, by the Minister, against that decision was dismissed by the Full Court as one of a group of five cases under the heading NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 on 15 August 2002.  The Wang case was concerned with different provisions of the Act under which the Minister may cancel a visa without notice but is required to consider whether, in the light of response to a notice of the cancellation given after the event, the cancellation should be revoked.  The decision, under s 131 of the Act, not to revoke a cancellation requires prior consideration of the response or lack of response to the notice of cancellation.  In that case it was not in dispute that the notice sent was inadequate.  The case was able to be considered on the basis that no notice had been sent.  The sending of the notice was found to be an essential element of the statutory scheme reflected in ss 129 and 131.  Its character as an essential element of the scheme and as a necessary condition of the exercise of the power not to revoke a cancellation was not altered by the operation of the privative clause, s 474. 

17                  The present case raises a somewhat different issue.  The notices were sent to an address which the applicant had stated would be his address after his release from prison.  Indeed, it was his address for three months after that release.  The difficulty in this case arises because of the delay in sending the notice.  When it was sent Mr Osborne had been out of prison for some ten months and had moved on.  There does not appear to have been any attempt by any officer of DIMA to ascertain his whereabouts.  An internal email dated 23 July 2001 was in evidence in which one DIMA officer designated “Robert” asked another DIMA officer, designated “Kerry”:

“This one was granted parole in September 2000.  Would you please find out where he is residing.”

A few pages later in the departmental file, at folio 112, appears a handwritten memorandum which is undated.  It bore the entries, inter alia:

“Residing Casuarina… was Bunbury.”

18                  It was contended for the Minister that during his imprisonment at Canning Vale Prison prior to his release on parole, Mr Osborne had two residences namely Canning Vale Prison and his mother’s residence at 46 Koondoola Avenue, Koondoola.  For the purposes of the regulations, these were said to be his two last known residential addresses.  However at the time of service of the two notices in July and September 2001, DIMA was aware that he was no longer at Canning Vale Prison and accordingly the notices could not bona fide be served on him by sending them to that address.  On this basis it was said there was no error on the part of the Minister in sending the notices to 46 Koondoola Avenue, Koondoola.  That was the residential address last known to the Minister for the purposes of the regulations applicable at the times that the two letters were sent.  Alternatively, the Minister argued that s 474 of the Act precluded a grant of any relief to Mr Osborne under s 39B of the Judiciary Act.  It was argued that the decision of Mansfield J in Wang was in error.  That contention has, of course, been overtaken by the decision of the Full Court.

19                  Unlike the provisions of s 129 and s 131 considered in Wang, there is no express provision in the Act requiring notice to be given to a visa holder as a condition of the exercise of the Minister’s power to cancel the visa under s 501.  Nevertheless, prior notice to the visa holder is to be implied as a necessary condition of the power for it cannot be exercised unless:

“The person does not satisfy the Minister that the person passes the character test.”

It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister’s intention to cancel.  Some process of notification is therefore contemplated even thought the Act does not set it out. Indeed the regulations seem to assume as much.

20                  The implied condition of notification is not absolute.  It could not be.  For otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers.  The implied condition requires only that reasonable steps be taken to notify the visa holder.  To send a notice of intended cancellation to his last known address is a reasonable step.  When that last known address is the address of a close relative of the visa holder, in this case his mother, and with whom he had expressed an intention to resume living, then it is plainly a reasonable process.  The aid of the regulations is not required to determine what is reasonable in these circumstances.   They do not in terms condition the effect of exercise of the power under s 501.  They establish a mechanism for notification which appears, in a formal sense, to have been followed in this case.  

21                  The reality is that the Minister appears to have made his decision on the incorrect advice that Mr Osborne has no child.  He does have a child and the child is an Australian citizen.  The interests of that child have not been taken into account in the cancellation decision.  This is not to say that this was the fault of the Minister’s officers.  However it is a fact that might warrant a reconsideration in this case.  

22                  As a matter of law however, the implied condition having been satisfied in this case, there was no error of law on the part of the Minister in proceeding to make the cancellation decision.  There is therefore no occasion for the operation of the privative clause.  Had there been, contrary to my finding, a failure to meet the implied condition of reasonable notification, then it is doubtful that the privative clause would have protected that decision against review.  For such a case would be analogous to that in Wang in which notification was an integral part of the statutory scheme.

Conclusion

23                  For the above reasons the application will be dismissed with costs.

Associate:

Dated:              9 September 2002