FEDERAL COURT OF AUSTRALIA

Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497

MIGRATION – cancellation of a Resident Return Visa - sub class 156 by Minister for Immigration and Multicultural and Indigenous Affair under s 501 of the Migration Act 1958 (Cth) – whether application denied procedural fairness where the applicant was not shown an Issues Paper prepared by an officer in the Department of Immigration and Multicultural and Indigenous Affairs for the Minister prior to Minister making the decision– requirement of natural justice that person affected by visa revocation has an opportunity to know the case put against him– whether the Minister  applied the wrong test when he cancelled the applicant’s visa under s 501 of the Migration Act 1958 (Cth) – whether decision affected by jurisdictional error and reviewable by the Court – whether futile to afford the applicant relief.

Migration Act 1958 (Cth) – s 474, s 501

Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7 – followed

Kioa v West (1985) 159 CLR 550 – followed

Muin v Refugee Review Tribunal (2002) 190 ALR 601 – considered

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 – considered

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 – considered

ATILLA DAGLI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1255 of 2002

HILL J

23 MAY 2003

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. There be no order as to costs.

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

REASONS FOR JUDGMENT

1                     The applicant is, it may be inferred, a national of Turkey.  It seems he was born there but came to Australia as a migrant with his family on 6 September 1972 or so the officer who advised the Minister (“the Officer”) says at par 2 of an Issues Paper.  I make that qualification because at par 28 of the same paper, the Officer says that he arrived “in Australia as a migrant with his family on 6 November 1971”.  However, at par 43 the Officer gives the year 1972 and says that at arrival the applicant was under the age of one year. In responses to a questionnaire which will later be referred to, the applicant gave his date of birth as being “6/11/71” which would suggest that the reference at par 28 in the Issues Paper is a mistake.  The applicant is now 31 years of age and in detention.

2                     On 23 July 2002 a Mr Robicheau of the New South Wales Character Section of the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) wrote to the applicant, then in a correctional centre in NSW advising him that it had come to the attention of the Department that his Resident Return Visa – sub class 156 might be liable for cancellation under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).  The relevant grounds for possible cancellation was said to be “subparagraph 501(6)(a) – Substantial criminal history” and “subparagraph 501(6)(c)(i) – Past and present criminal conduct.”  The letter noted that the Minister had advised that he would personally make the decision with the consequence that the decision would not be reviewable by the Administrative Appeals Tribunal.  The letter said inter alia

“Before the Minister considers whether to cancel your visa under subsection 501(2), you are provided with an opportunity to comment.  Matters to be taken into account include the following:

·        Your criminal history.  A copy is attached for you information.

·        The Judge’s comments

In reaching a decision whether to cancel the visa the Minister will have regard to the matters noted above and the attached Minister’s Direction No 21 titled ‘Direction under Section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958’.  I have included a copy of this direction.

In preparing your comments please read fully and carefully the contents of the Minister’s Direction.  You should address each and every topic that you feel applies to you and is relevant to your circumstances.

If you and/or anyone who wish to provide comments and information that you feel the Minister ought to be aware of and take into account, please provide them to this office by mail or facsimile no later than 13 August 2002.

If you do not respond by the above date, a decision will be made on whether your visa will be cancelled using information already held by the Department.”

3                     This letter is hereafter referred to as “the information letter”.

4                     The information letter enclosed a questionnaire of some ten pages (“the questionnaire”).  The purpose of the questionnaire was said to be to guide the applicant in making known his personal circumstances and to provide to the applicant the opportunity to put before the Minister any matter which the applicant wished to be taken into account when the Minister considered his case. 

5                     The applicant duly completed the questionnaire which included a section setting out his attitude to possible visa cancellation and removal from Australia.  He attached to it various documents concerning courses he had done. 

6                     The Officer then prepared an Issues Paper for the Minister (“the Issues Paper”) to assist the Minister in his consideration of the possible cancellation of the applicant’s visa.  It will be necessary to set out in some detail later in these reasons matters that are set out in that Issues Paper. 

7                     The last part of the Issues Paper (Part E) contains the record of the Minister’s decision which was apparently made by the Minister on 15 October 2002.  The Minister, after deleting alternative matters on that page, recorded that he had considered all relevant matters, including an assessment of the character test, as defined by s 501(6) of the Act, his direction under s 499 of the Act and Mr Dagli’s comments and he had decided as follows:

“I reasonably suspect that Mr Dagli does not pass the character test and Mr Dagli has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.”

8                     On 26 November 2002 the applicant filed with the Court an application for an order to review the Minister’s decision, said to have been received by the applicant no earlier than 12 November 2002.  It has not been suggested that the application was lodged with the Court out of time.  The application brought under s 39 of the Judiciary Act 1903, sought, relevantly, an order of prohibition against the Minister and an order for writ of certiorari quashing the Minister’s decision of 15 October 2002.  In the alternative declarations were sought that the decision to revoke the applicant’s visa was unlawful.

9                     Before the Court the applicant was represented by a solicitor.  Four matters were relied upon in support of the application, being:

(1)   That the Minister did not accord to the applicant natural justice.

(2)               That the Minister had failed to give to the applicant reasons for the decision as required by the Act.

(3)   That the Minister had, in making his decision, erred in law by applying the wrong test.

(4)               That the decision was so unreasonable that no reasonable decision maker could have made it and was, for that reason, void.

10                  Before considering the first, third and fourth of these grounds, it may be useful to say something about the question of reasons.

11                  The applicant did not claim in his application an order for mandamus, requiring the Minister to provide reasons for the decision.  It was, however, conceded on behalf of the Minister that the Minister had not provided to the applicant reasons as required by s 501G(1)(e) of the Act.  The concession was, no doubt, properly made having regard to the decision of a Full Court of this Court in Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7.

12                  There had been correspondence between the legal advisers of each party on the question of reasons.  A letter from the Minster’s advisors to the applicant’s solicitors dated 3 March 2003 confirmed that the Minster’s advisors had sought the applicant’s consent to an adjournment to enable the Minister to prepare a written statement of reasons, having regard to the Full Court decision in Ayan.  The letter noted also that the applicant’s solicitors had opposed an application for adjournment.  It continued to put the applicant’s solicitor on notice that the Minister would oppose any application to amend the original application so as to seek orders in the nature of those sought in Ayan, namely that the Minister furnish a written statement of reasons pursuant to s 501G.

13                  After hearing submissions on the matter and noting that the Minister did not really oppose the giving of reasons, subject to the need for an adjournment, and as a matter of case management, I directed the Minister to file and serve reasons for the decision 11 days from the date of the hearing.  I formed the view, notwithstanding that the Minister sought yet a further four weeks after the five months that had elapsed since the decision to comply with his obligation, that as the applicant was still in detention the Minister should be required within a relatively short time to provide the reasons and that, for this purpose it appeared that the 11 days should be adequate.  I made consequential orders relating to the filing of additional submissions should the applicant seek to rely on any matter contained in those reasons once they were provided.  Subsequently the reasons were provided to the applicant and submissions were made in writing which were more addressed to the matters argues before the reasons were provided than to anything in the reasons themselves.

14                  Accordingly, I do not need to consider the submission put to me and which, with respect, I would as presently advised disagree, that because no reasons had been given I should infer that the decision was one made without any reasoning process at all.

15                  I shall deal now with the remaining three matters.  Before doing so, however, it is necessary to set out the factual background against which these matters need to be considered.

(a) The Applicant’s Criminal History

16                  As I have already indicated, there was attached to the information letter a document referring to the applicant’s criminal history and a copy of the Minister’s Direction No 21.  A document which is referred to in the Issues Paper as “The Judge’s Comments”, being comments made by the Trial Judges at the time of sentence does not appear to have been attached, although it is not suggested that the applicant would be unaware of what was said in that document.

17                  I need say little about the criminal history.  It is obvious that the applicant had a serious record of offending.  The history discloses a number of charges beginning with a charge in 1998 of possessing a prohibited drug, progressing through a number of charges of break and entering buildings for the purposes of stealing and concluding with the matter of robbery armed with an offensive weapon in 2000 which was the subject of the Judge’s comments.  I would say “concluding”, only in the sense that the armed robbery was the most serious offence which the applicant had committed.  In fact, postdating the armed robbery were other charges involving goods in possession and furnishing misleading information.  If the present case is to be decided for the applicant it could not be because his record of offending did other than support a decision that his visa be terminated.  However, the jurisdiction of the Court is not one of merits review.  The issue before the Court is rather whether there was some jurisdictional error which operated to vitiate the decision which the Minister made.

18                  The offence, the subject of the Judge’s comments, resulted in a sentence for a fixed term of 12 months relating to taking and driving a vehicle without the owner’s consent to a minimum term of three years for robbery armed with an offensive weapon commencing on 14 October 1999 and an additional term with conditions for three years on release, subject to supervision.  A subsequent appeal, which the applicant brought on severity of sentence, was ultimately discontinued. 

19                  The Judge’s comments on sentence were given on 21 March 2000.  Briefly, it seems that the applicant robbed an employee of Rothmans Pall Mall Australia Limited of cash in the sum of $8,600.00 and cigarette and tobacco products worth $75,000.00 while armed with a 16 cm bladed folding knife.  The applicant pleaded guilty to the charges against him in respect of this offence.  Of the two charges before the District Court, the first carried a maximum penalty of twenty years imprisonment and the second a maximum penalty of five years.  It seemed that the applicant approached the employee with a folding knife and demanded the key to the vehicle driven by the employee.  The knife was held at the employee’s throat for a time and this resulted in the employee giving to the applicant the cash.  The applicant then took the vehicle and drove off with it leaving the employee behind.  He then delivered the cigarettes to a co-offender who agreed to pay him some money.  The applicant was ultimately apprehended when the vehicle was seen by the police and was pursued.  It seems the applicant swerved directly into the path of the oncoming police vehicle but swerved back to the correct side of the road at the last moment and drove the vehicle over a nature strip.  The applicant jumped out and the vehicle collided with a brick wall.  The applicant was pursued on foot and arrested after a brief struggle.  The police located a box in the vehicle containing $7,000.00 in cash and the knife used by the applicant.  The Judge accepted that the applicant did not realise that the money was in the vehicle in a box at the time he stole the vehicle.  It seems that the applicant made full admissions and gave assistance to the police in providing the whereabouts of the cigarettes and some details in relation to the co-offender.  At the time the offence occurred, 14 October 1999, the applicant was a disqualified driver.

20                  Not surprisingly the sentencing Judge regarded the offence of armed robbery as a serious offence and the applicant’s actions as a “relatively serious example of such an offence.”  It appeared that before committing the offence the applicant had used drugs to give him the courage to carry out the offence.  This, the sentencing Judge saw as an aggravating factor. At the time the applicant committed the offence in question he was serving an additional term of 21 months for another conviction for break and enter for which he had served a minimum term of three months in prison.

            (b) Responses to the Questionnaire

21                  In the questionnaire the applicant, in explaining his “substantial criminal history”, noted that he was supporting his drug habit and expressed regret at what had happened.  He noted that he would stay with his family if he kept his visa and would return to employment which he said had been continuous since he left school.  In response to a question whether he believed he had been rehabilitated, he responded in the affirmative.  He noted that in the last three years he had educated himself in goal in reading, writing and mathematics; had completed drug and alcohol courses on a voluntary basis and was seeing a psychologist regularly. 

22                  In response to a question asking his attitude to the cancellation of the visa, he said that he had lived in Australia for thirty years.  Particularly he said, “All I know is Australia.  All my family lives in this country.  My family would be devastated if I was to be deported to Turkey, because I don’t know the country at all. My Turkish is not that good, and I have never been educated in Turkey.  I will have a big problem in employment, and the living conditions in Turkey are very poor.  I do not know any of the family” (the underlining is in the original).

            (c) The Direction

23                  The purpose of providing the applicant with a copy of the Direction was obviously so that he could address the comments he wished to make to the Minister to matters that were referred to in the Direction.  The Direction, made under s 499 of the Act was prepared for the guidance of decision makers engaged in determining whether visas should be revoked.  Such decision makers would include both the delegates of the Minister and the Administrative Appeals Tribunal.  It is not suggested that the Direction has any relevance directly to decisions of the Minister and legally it does not bind the Minister himself.  However, it could not be suggested that the Minister would act wrongly in considering the matters referred to in the Direction.

24                  The Direction is in two parts. The first relates to the application of the Character Test. Reference is made inter alia to “substantial criminal record.” The second relates to the exercise of discretion required where the non-citizen does not pass the Character Test.

25                  The Direction notes that all relevant considerations should be taken into account in exercising the discretion. It refers to three “Primary Considerations” being “the protection of the Australian Community, and members of the Community,” the expectation of the Australian Community and where there is a parental relationship, the best interests of the child or children. Each of these matters is then addressed in the Direction. So for example the risk of recidivism is one of the factors discussed under the head of protection of the Australian Community.  Relevant to recidivism is said in the Direction to be the extent of rehabilitation already achieved as well as the prospect of further rehabilitation.

26                  The Direction then refers to “Other Considerations” which are to be given less weight than the “Primary Considerations.” These include ties to the Australian Community, genuine marriage to an Australian citizen or resident and hardship. Australia’s international obligations are also referred to.

            (d) The Issues Paper

27                  The Issues Paper was, perhaps not surprisingly, negative in its comments concerning the applicant.  It noted that it was open to the Minister to consider the factors that were set out in the Direction, that he was free to place whatever weight he regarded as appropriate on those factors.  It may be said that the Issues Paper made comment on the following matters:

·        The criminal history with the conclusion that it was open to the Minister to find that the conduct against the community was serious.

·        The risk of recidivism.

·        The question of deterrence.

·        The expectations of the Australian community.

·        The best interests of the children.

·        Other considerations.

28                  Under the general discussion of recidivism, the Issues Paper noted that it was open to the Minister to take into account whether there had been a previous warning about cancellation, the previous convictions in Australia and the extended rehabilitation either already tried or prospects of further rehabilitation, as well as the positive contribution, if any, to the community that the applicant might make.  It noted that the applicant had not been previously warned about cancellation but that he had numerous convictions, as set out in his criminal record.  Particularly, it noted that the applicant had been back to Turkey on a number of occasions. It noted that in 1991, he had returned to Turkey and that he had stayed there for three years until 1994.

29                  The Issues Paper noted that Mr Dagli had submitted that he had been rehabilitated and referred to what Mr Dagli had said in the questionnaire.  Reference was also made to a Probation and Parole Report which was attached for the information of the Minister, although it had not been referred to by the Officer in the Information letter.  The  Probation and Parole Report was in evidence before me and it can be said was generally favourable to the applicant. 

30                  The Officer’s conclusion by way of recommendation was as follows:

“As evident in Mr Dagli’s Criminal History, he had committed a number of crimes prior to the commission of the offences bringing him within the scope of section 501(2) of the Migration Act 1958.  His offending ways began in 1998, and have steadily risen in number and level of seriousness to culminate in his recent crimes in Australia.  Mr Dagli’s gaol sentence in June 1999, being twenty-one months for Break Enter and Steal, of which he served a minimum of three months, did not prevent him from committing his current offences.  In consideration of the above factors, it is open for you to find that Mr Dagli is at a medium to high risk of recidivism.”

31                  Under the heading of “General deterrence” the Officer expressed the view that it was open to the Minister to find that cancellation of the visa would serve as a deterrence factor against others committing similar offences.  On the question of expectations of the community the Officer noted that the offences were considered by the government to be very serious and that the Australian community expected non-citizens to obey Australian laws while in Australia.  The recommendation was that it was open for the Minister to find that the character concerns or offences were such that the Australian community might expect that Mr Dagli should be removed from Australia.

32                  Because Mr Dagli had no children, the question of the best interests of the children did not arise.

33                 Finally under the heading “Other Considerations” the Officer referred to some historical matters concerning family, education and employment.  He referred also to what the applicant had said in the questionnaire about the difficulties of his returning to Turkey.  At par 47 the Officer noted that it had been said in the Probation and Parole Report that the applicant intended to request permission from the Parole Board to travel to Turkey with the intention of marrying a girl of a similar cultural origin.  On the question of return to Turkey it said also:

“Whilst Mr Dagli has referred to Turkey as a country he did not know, he has visited Turkey on a number of occasions and resided in turkey [sic] for three years between 1991 and 1994.  He was also a soldier in the Turkish Army for a period and resided with his grandparent there.  Furthermore, he has intentions of visiting Turkey with the view of marrying a girl of Turkish origin.  Given this, it is reasonable to conclude that Mr Dagli has been able to retain some of his cultural ties even though he has been a resident of Australia for thirty years.”

34                  It is not clear to me whether the Minister was given the computer printout of movement details which are in evidence before me.  However, if he was, he might have had cause to wonder because, despite the suggestion by the Officer that the applicant had been “back to Turkey on quite a number of occasions”,  the movement details recorded only two such occasions.  One was a departure in May 1983 returning in March 1984 when the applicant was twelve and presumably accompanied his family and the other was a departure in June 1991 with a return in February 1994.  The records show the applicant was granted a visa to return from Turkey to Australia in February 1993.  Nothing in the documentation supports the conclusion that the applicant had visited Turkey more than those two occasions.  Whether he resided in Turkey for the whole of those three years between 1991 and 1994 is unclear.  It seems that the applicant in that period, although not necessarily in the entirety of it, had been conscripted into the Turkish army for military service. 

35                  The Parole Board’s Report supports the information that the applicant intended to visit Turkey to marry a girl there but gives no details of the circumstances.  It is possible, perhaps likely, that the girl in question lived in Australia and that the purpose of the applicant wishing to go to Turkey was to enable the girl’s relatives to participate in the wedding ceremony.  In other words, if the circumstances were known as to the proposed trip to Turkey it may well be that such a trip disclosed no close connection on the part of the applicant with Turkey as is inferred in the Issues Paper.  It could perhaps also be the case that the applicant had met the girl in Turkey before he left there in 1994.  The former possibility would however seem more likely.  The actual facts are not known.

1) The Wrong Test

36                  The submission on behalf of the applicant was that the Minister in making his decision, applied the wrong test and therefore erred in law.  The submission relies upon par 12 of the Issues Paper.  In that paragraph the writer described the discretion which the Minister was to exercise.  The three lines, said to embody the wrong test, read as follows:

“If you are satisfied that Mr Dagli does not pass the character test you must consider the exercise of your discretion to decide whether Mr Dagli should be permitted to remain in Australia.”

37                  The submission is that this suggests that absent an exercise of discretion in favour of the applicant, the visa would be cancelled, whereas the correct legal test was that the Minister first was required to consider whether the applicant passed the character test and having been satisfied that he did not, then had a discretion to cancel the visa.

38                  With respect to the submission, it is clear from reading the Issues Paper as a whole, and most particularly the way the questions for decision are set out in part E of that document, that no error of law occurred at all.  The Minister first considered the question whether he reasonably suspected the applicant passed the character test and having decided that against the applicant, then considered whether to exercise his discretion to cancel the visa as he was required to do.

39                  No mistake of law has been made out.

2) Unreasonableness

40                  It was submitted that the decision was unreasonable in the sense used in administrative law.

41                  The submission, with respect, does no more than seek to persuade me that I might, in the circumstances, have reached a different decision.  However, with respect, the submission does not demonstrate a decision unreasonable in the administrative law sense but merely seeks to persuade me to enter into the merits of the decision a matter not open to me on judicial review.

3) The Natural Justice Submission

42                  The submission on natural justice was argued before the reasons of the Minister for giving his decision had been supplied to the Court.  The should accordingly be read on the basis that it should be inferred that what is recommended in the Issues Paper must, absent a statement of the Minister, be taken as representing the reasons for decision of the Minister.  The way the matter was argued and my reasons with respect to that argument are significant having regard to my ultimate decision.  For that reason I have decided to set out the view I take on the matter in the absence of a response from the Minister and thus unaffected by the Minister’s Statement of Reasons.  I will finally outline my views on the applicant’s submissions after taking into account the Minister’s reasons.

43                  It is now well established that the question whether a decision maker is required to afford to a person, affected by that decision, natural justice (or as it is more accurately called, procedural fairness) and if so the content of the rules of natural justice must be resolved by reference to the legislation pursuant to which the decision is to be made and by reference to all the relevant circumstances of the case: Kioa v West (1985) 159 CLR 550 at 584.  It can be said generally, as Mason J did in Kioa at 585 that “the expression ‘procedural fairness’ more aptly conveys the notion of flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.”  As his Honour in that case noted, those flexible procedures would not necessarily be modelled upon curial proceedings (see at 584). 

44                  It is not in dispute that the Minister was required to afford to the applicant natural justice, as part of the process of considering the cancellation of his permanent visa. In general, the question which I have to address is whether in the circumstances of the present case what was done was consistent with the obligation upon the Minister to act fairly.

45                  It is of particular significance here that in Kioa, Mason J noted that it was central to the requirement of natural justice where the consequences of the decision are as serious as they are here, and, subject to particular legislative provision, that the applicant have an entitlement “to know the case sought to be made against him and to be given an opportunity of replying to it”.  It should be emphasised that it will not be enough that a person the subject of such a decision is merely given an opportunity to put to the decision maker such submissions as he or she may wish to make, and I would say that this is so even where the matters to be dealt with in the submission the applicant is permitted to make have been outlined in summary form.  There is the dual requirement of opportunity to put a case and knowledge of the case that is required to be met, for without the latter the person affected by the decision will not necessarily have a real opportunity to make a submission which meets what is put against him or her.

46                  The principles enunciated by Mason J in Kioa have never been the subject of criticism.  Recently in Muin v Refugee Review Tribunal (2002) 190 ALR 601 Gummow J, applying the applicable principles that had been restated in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, emphasised that the right to respond to adverse evidence was one of the most important aspects of natural justice.  It was significant in that case that for most practical purposes the Refugee Review Tribunal (the decision-maker in that case) represented (as the Minister does here) the last chance to influence factual determinations and one might say the decision to be arrived at it.  Its decision was, like the Minister’s here, not only final but the outcome of it was of great importance to the person affected.  On the facts Gummow J found that Mr Muin had neither been given the opportunity to put the case he wished to put or to answer the case made against him by reference to materials of which he did not have notice.  Specifically, Mr Muin was denied procedural fairness because the Tribunal had not informed him of the material upon which it ultimately acted.

47                  In general terms it may be said, as indeed Counsel for the Minister submits, that the information letter, with its attachments, including the questionnaire and the Direction, directed the attention of the applicant, at least in a general way, to the matters he had to address in the submissions he was invited to make to the Minister.  The real question is whether the information letter and attachments were sufficient compliance with the obligation upon the Minister to afford procedural fairness to the applicant so that it can be said that the applicant was made aware of the case which was, at least by implication made against him even if he was not aware of precisely what the Officer advising the Minister would put to the Minister as part of the decision making process.  I should say that I do not think it is helpful to rest the applicant’s case upon an obligation alleged to exist on the part of the Minister to provide the applicant with a copy of the Issues Paper as such.  The question can only be answered by reference to the material which is in that Issues Paper.  In principle there can be no obligation, absent a statutory provision to that effect, that an applicant be provided with any document which is given to the Minister in connection with the making of a decision.

48                  It was submitted on behalf of the Minister, as I have just indicated, that the questionnaire with its attachments, gave the applicant the opportunity to put his case and that the information letter drew the applicant’s attention to the relevant legislation, his criminal history, the comments made by the Judge concerning the applicant and the Minister’s direction, containing as it did, a summary of the matters which the Minister had notified to delegates or the Administrative Appeals Tribunal were required to be considered in a case such as the present, which matters it can reasonably be inferred would be the matters which the Minister himself would take into account.  It was said that the applicant had thus been warned that these were matters that would be taken into account in making the decision.  I was reminded that the proceedings were not curial proceedings and that the Issues Paper did not constitute a “prosecution brief.”

49                  The real issue here, however, is not whether the applicant was given the opportunity to put matters to the Minister.  He was.  The real question is whether he was given the opportunity to know the case that was put to the Minister against him before the Minister made his decision so that he could answer that case.  No doubt, if the applicant had been given a copy of the Issues Paper it would have been clear what the case against him was, even if it can be said that the Issues Paper expressed itself in terms that it was open to the Minister to make decisions rather than necessarily recommending that the Minister reach a particular decision.  That, in the present case, however, is more form than substance.

50                  It is also true that the applicant could, from the Information letter know generally the negative matters against him, these being his criminal record and the Judge’s comments, both matters which could be expected to operate adversely to him.   The case against him can be inferentially surmised.

51                  I do not, however, think that it suffices in a case such as the present, where a decision is to be made which would be likely to have a very significant effect on a person’s life, that that person be merely shown a copy of the Minister’s Direction and warned that matters in it would be taken into consideration.  That document, as I have already described it, is in terms general to all cases such as the present and hardly informs the reader which of those matters the Minister may take into account, or what emphasis may be given to the one against the other, let alone the detail of matters which the Minister might take into account under one head or the other.  The fact that the Direction is not binding upon the Minister himself has little relevance, however, since it is fair to say that any reasonable addressee of a letter such as the Information Letter would conclude that the Minister would generally consider the matters referred to in the headings of the Direction even if the Direction itself hints that the Minister is not bound by it.

52                  But what is of significance in the present case is that in the Issues Paper various specific matters adverse to the applicant are put before the Minister and in circumstances where the applicant might, had the applicant known what was being put against him, have been able to answer those matters or provide evidence to the contrary of them. 

53                  First, there is the matter of the applicant’s trips to Turkey.  It will be recalled that the Issues Paper says (and for present purposes I think it can be assumed that the Departmental arrival and departure records were not before the Minister, for there is no suggestion in the evidence that they were) that the applicant had had a “number of trips” to Turkey.  The context is that the applicant would have little difficulty being sent back to Turkey because of the continuing connection he had had with that country in the past.  If  the applicant had been made aware that it was put against him that far from being a stranger in Turkey the applicant had been to Turkey on a number of occasions it is possible that the applicant may have been able to point out that he had only been twice in Turkey, once for a short time when he was a child and with his parents and the other occasion (a total of three years) when he had been conscripted apparently for a period of eighteen months according to the Probation report..  It may have been possible for the applicant to have detailed what he had done in the three year period which included his army service.  This could possibly have included time spent in countries other than Turkey or the remaining eighteen months may have been spent entirely in Turkey.  The point is not really what the actual facts are, but that the applicant was denied the opportunity of meeting a case, on any view overstated, that he had been in Turkey for a number of trips and inferentially would suffer little from being deported from Australia to Turkey.

54                  Second, and related to the question of prior trips to Turkey there is the matter of the future trip to Turkey to marry a Turkish woman.  As I have indicated there is a real possibility that the Turkish woman is, in fact, a person the applicant has come to know from Australia and that the trip there is not really related to the applicant’s family, but the family of the Turkish woman.  It may well be that the real facts, if known to the Minister, would not support a conclusion that he had retained cultural ties in Turkey to any extent.  The point here is not whether the Officer in the Issues Paper was correct.  It is rather that the case presented by the Officer in the Issues Paper which implied considerable Turkish contact may well have been met by the applicant had he been given the opportunity.

55                  The same may be said of the Probation and Parole Report prepared on 6 August 2002.  I do not know whether that report had ever been seen by the applicant. There are some extracts from it in the Issues Paper and it may well be that it was before the Minister, although there is no suggestion in the evidence that it was.  What is more important is that the applicant was unaware that the Report or at least extracts from it was or were presented to the Minister. If only extracts from the report were before the Minister, it may be that other parts of the report  favourable to the applicant, may have been able to be referred to by him.  If the whole report was before the Minister, material in it that was adverse to the applicant may have been able to have been answered by the applicant.

56                  One can say the same on the question on the possibility of the applicant reoffending.  The Issues Paper indicates, as I have already said, that it was open to the Minister to form the view that there was a medium to high risk of recidivism.  It is true the applicant was given the opportunity to comment through the questionnaire whether he believed he had been rehabilitated in general terms.  That, together with the Minister’s Direction, might alert a person to the fact that recidivism was a relevant matter to be considered.  But it does not alert an applicant facing cancellation of a visa and ultimate deportation, what the case against him on this point is.  Had he been aware that the conclusion to be put to the Minister was that he was likely to reoffend, it may well be that he could put to the Minister matters which might lead to the Minister taking a different view on this question.  The applicant may have been able to obtain a report from the psychologist who had worked with him while he was in detention that recidivism was unlikely.  It is not necessary for me to decide whether the applicant could do so.  It suffices that a possibility existed, that the Applicant might be able to advance submissions or evidence to meet the case put before the Minister that it was open to the Minister to conclude that there was a medium to high risk of recidivism.

57                  Another matter put to me by the solicitor for the applicant was that the Issues Paper grossly understated what Mr Dagli had said in the questionnaire as to the effect of deportation upon his family.

58                  The Issues Paper at par 50 says “it is open to you [ie the Minister] to find on the basis of the given information that the cancellation of Mr Dagli’s visa and his removal from Australia could cause some hardship on him and his family” (emphasis added).  The claim which the applicant made in the questionnaire (it is more accurately stated at par 49 of the Issues Paper) was that cancellation would affect his family enormously.  With respect, however, I do not think that par 50 when read with the correct statement of what the applicant had said at par 49, supports the view that the applicant was denied procedural fairness because he was not given the opportunity to respond to a case that cancellation would only involve some hardship for him and his family.

59                  A matter raised on behalf of the applicant in supplementary submissions was that the Minister  in arriving at the decision he did considered the expectations of the Australian community.  It is said that the applicant, had he known this was an issue, might have called evidence of the views of community leaders and the like.  With respect, I am not sure whether such evidence would be ultimately relevant as the issue is one for the Minister.  But in any event, I do not see that any question of denial of procedural fairness is involved in the Minister considering the matter of community expectations.  Indeed, the general heading is one referred to in the Direction as a relevant matter, and clearly is a relevant matter.  Insofar as it is suggested that there was no evidence before the Minister on community expectations there is no substance in regarding this as a separate ground of judicial review.  Clearly the Minister is entitled to consider the question for himself and it is of no significance that the Minister’s electorate is in the Northern Suburbs, whether or not that electorate is reflective of the Australian community.

60                  However, for the reasons I have already indicated, in the circumstances of the present case, the mere giving of the letter written by the Officer to the applicant, together with the documents accompanying it, did not fairly enable the applicant to know, in such a way as to be able to deal with it, all of the case that was to be made against him in the Issues Paper, and particularly where it is clear that the Minister, in making a decision, is very likely to be influenced by the recommendations which are made in it and where the consequences to the applicant of an adverse decision were deportation from Australia where the applicant had spent the great part of his life since the age of under one year.

61                 Counsel for the Minister submitted that there was no “practical injustice” in the present case in the Minister not providing the applicant was the Issues Paper.  Reference was made to the judgment of Gleeson CJ in Minister for Immigration and Multicultural Affairs, Ex parte Lam (2003) 195 ALR 502 at [78] – [79], although presumably the reference should have been to the judgment of the Chief Justice at [37] – [38].  One must be careful how one uses expressions of that kind without reference to the context in which they appear.  The case was not one where the applicant was not given the opportunity to rebut material put against him.  The case for the applicant was that he had an expectation that the procedure foreshadowed in correspondence that a particular person would be contacted had not been followed.  The Chief Justice rejected the case so far as it was said to rely upon some general doctrine of legitimate expectation.  His Honour also pointed out that the applicant had not shown that he was reasonably entitled to expect the suggested procedure would be followed or to show that he had any subjective expectation in consequence of which he would do or omit to do anything.  It was in this context that the Chief Justice noted that no practical injustice had been shown because the applicant had lost no opportunity to advance his case.  The present is not a case where there is any issue of reliance involved.  The present is a case where an adverse case is put to the Minister and the detail of that adverse case is unknown to the applicant who had, in consequence no opportunity to rebut it.  In so far as it is necessary to show, in all cases involving natural justice that there is some “practical injustice” that stems from the denial to the applicant of the opportunity to put his case.

62                 In additional submissions lodged after the hearing (and in respect of which no leave was given, in so far as they dealt with matters argued at the hearing) counsel for the Minister submitted that no jurisdictional error was involved and accordingly the provisions of s 474 of the Act (the privative clause provisions) prevented this Court from intervening.  Reliance is placed upon the decision of Ryan J in VBAC v Minister of Immigration and Multicultural Affairs [2003] FCA 205.

63                  VBAC was a case where no denial of natural justice was found.  Hence the comments of Ryan J concerning the privative clause, while entitled to respect, do not stand in the same position as a decision of the Court on the issue.  Had the comments on the question of procedural fairness been part of the ratio of the case I would have been required to follow that case unless I was of the opinion that it was clearly wrong.  As it is, I do not have to consider the question in that way.

64                 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Applicants S134/2002 (2003) 195 ALR 1 make it clear that a decision made in denial of natural justice is no decision at all and hence is not protected by the privative clause, which operates only where there is a decision which is valid.  At the heart of the decision is the problem that when s 474 is interpreted against the background of s 75(v) of the Constitution it does not operate to prevent the High Court from granting prohibition or certiorari in a case where there is a jurisdictional error.  Whether there is a jurisdictional error must, of course, be determined against the background of the legislation itself.  So, it will be necessary to examine, as Kirby and Gaudron point out in Plaintiff S134/2002 at [72]:

“

…statutory limitations or requirements to ascertain whether, in the light of s 474’s restrictions on judicial review, non observance of those limitations or requirements does or does not result in jurisdictional error.”

65                  Obviously the question of whether procedural fairness is required and the content of rules of natural justice may only be answered by the terms of the legislation itself.  But once it is found, as indeed is accepted, that procedural fairness is required to be afforded to an applicant whose visa is about to be cancelled, failure to afford that applicant procedural fairness will result in the decision being null and void.  There is no reason in the present case to draw a distinction, if there is one, between a case of procedural fairness which does not constitute jurisdictional error and one which does. 

66                  In my view, whatever the correctness of the comments of Ryan J in VBAC the present is a case where this Court exercising its jurisdiction under s 39B of the Judiciary Act 1903 (Cth) is not impeded from granting relief.  The present decision was not, in the circumstances of the present case, a decision to which the provisions of s 474 applied and the decision of the High Court in Plaintiff S157/2002 is authority for that.

The Minister’s Reasons for Decision

67                  Since writing the above judgment I have received a copy of the Minister’s reasons for his decision.  It was agreed by the parties that a copy of the decision should be treated as an exhibit in the case.

68                  At the outset of the statement the Minister, the Honourable Philip Ruddock states that in making his decision he took into account the Issues Paper and all matters referred to in it and in the documents annexed to it.  He states that he gave primary consideration to the protection of the community taking into account the seriousness and the nature of Mr Dagli’s criminal conduct and the likelihood of whether it would be repeated.  While noting that the applicant had a history of repeat offending the Minister, after taking into account what the Probation and Parole officer had said found that there was a “low to moderate risk” of his reoffending.  In this, it may be noted, he differed from the recommendation in the Issues Paper.

69                  The Minister under the heading of “Other considerations” noted that he took into account the degree of hardship to Mr Dagli and his family.  He found that the return to Turkey would cause Mr Dagli considerable hardship.  Importantly he made no reference to the suggestion in the Issues Paper that the Applicant had made a number of trips to Turkey.  The Minister’s conclusion reads as follows:

“In deciding to exercise my discretion to cancel Mr Dagli’s visa, I took into account that there would be hardship to Mr Dagli, his family and particularly his mother.  I also took into account that the risk of his reoffending was low to moderate.  In reaching my decision, however, I concluded that the seriousness of Mr Dagli’s crimes and the expectation of the Australian community outweighed all other considerations referred to above.”

70                  The question with which I am left is whether the denial of natural justice to the applicant which I have found can be said, nevertheless, to have had no effect on the decision (as counsel for the Minister submits) or whether the situation is one where the denial of natural justice is one which might have impacted the outcome, as the solicitor for the applicant submits.

71                  Not without some hesitation I am inclined to the view that the matters in the Issues Paper which were adverse to the applicant and which he may have had the opportunity of answering were he advised of them were not really matters which went to the opinion that the Minister formed.  It is clear that the overwhelming factor considered by the Minister was the seriousness of the criminal conduct of the applicant and the expectation of the Australian community.  It does not seem that the Minister was in any way affected by the comments in the Issues Paper concerning occasions when the applicant had returned to Turkey, or the recommendations concerning recidivism.  In these circumstances and either because the matters had no material effect on the outcome, or alternatively as a matter of discretion in refusing relief, I would dismiss the application.

72                  Because, however, the Minister’s reasons were not provided as they should have been and because that failure really led to the litigation, I think that the appropriate cost order should be that each party pay his own costs of the proceedings and I so order.

Associate:

Dated:              23 May 2003