FEDERAL COURT OF AUSTRALIA

Sokourenko v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 892

MIGRATION – application for review of decision by Minister for Immigration and Multicultural and Indigenous Affairs to cancel the applicant’s visa pursuant to s 501A of the Migration Act 1958 (Cth) – failure to meet character test due to past and present general conduct – earlier decision of delegate of the Minister to cancel applicant’s visa had been set aside by the Administrative Appeals Tribunal – Minister relied upon Issues Paper which presented findings of the Tribunal and personal conclusions of the author of the Issues Paper – whether findings of the Tribunal misrepresented by the author of the Issues Paper – whether failure to provide applicant with an opportunity to address manner in which material was presented in the Issues Paper constituted a failure to accord procedural fairness to the applicant and was therefore a jurisdictional error – whether selective presentation of the Tribunal’s findings in the Issues Paper evidenced a lack of bona fides by the author of the Issues Paper which could be attributed to the Minister who based his decision upon the Issues Paper.

Migration Act 1958 (Cth): s 501

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, referred to

National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296, referred to

Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539, applied

F Hoffmann‑La Roche & Co A G v Secretary of State for Trade and Industry [1975] AC 295, referred to

Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100, applied

Kioa v West (1985) 159 CLR 550, referred to

OLGASOKOURENKOvMINISTERFORIMMIGRATIONANDMULTICULTURAL AND INDIGENOUS AFFAIRS

V 48 of 2003

GOLDBERG J

27 AUGUST 2003

MELBOURNE

THE COURT ORDERS THAT:

1.         The application filed on 3 February 2003 and amended on 9 July 2003 be dismissed.

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

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant is a citizen of the Ukraine.  She was born on 3 March 1977, she is not married and she has two young children, Vera and Nadia.  On 30 December 1996 the applicant’s mother, Mrs Natalia Sokourenko, lodged an application for a Subclass 104 Family (Preferential Relative) (Class AY) visa.  The application for the visa was sponsored by Mrs Praskovia Sacharov, the applicant’s grandmother.  The application for the visa included the applicant’s stepfather, Mr Mikhail Popovich, the applicant and her two children, Vera and Nadia. 

2                     On 29 October 1999 a visa was granted to Natalia Sokourenko, Mikhail Popovich, the applicant and her two children.  On 22 February 2000 the visa of the applicant’s youngest daughter, Nadia, was cancelled pursuant to s 128 of the Migration Act 1958 (Cth) (“the Act”) as the child’s father had withdrawn his consent for her to travel.  It appears that the father subsequently consented to the child’s travel to Australia but her visa was never reinstated. 

3                     In or about July 2000, Natalia Sokourenko, Mikhail Popovich and Vera Sokourenko migrated to Australia from the Ukraine but the applicant remained in the Ukraine with her daughter Nadia.  On 22 June 2001 the applicant’s visa was cancelled by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) pursuant to s 501 of the Act.  On 22 March 2002 the Administrative Appeals Tribunal (“the Tribunal”) set aside the delegate’s decision, which had the effect of revoking the cancellation of the applicant’s visa.

4                     On 4 July 2002 the Australian Embassy, Visa and Immigration Section, Moscow sent a “Notice of intention to cancel visa under subsection 501A(2) of the Migration Act 1958” to the applicant (“Notice of intention”).  The ground relied upon in the notice was specified as s 501(6)(c)(ii) of the Act, namely that the applicant did not pass the character test having regard to her past and present general conduct. 

5                     On 26 November 2002 the Minister decided to exercise his discretion under s 501A of the Act to set aside the decision of the Tribunal to revoke the cancellation of the applicant’s visa and he cancelled the applicant’s visa under s 501A of the Act.  The applicant was notified of this decision by letter dated 18 December 2002.

6                     The Minister made his decision to cancel the applicant’s visa in exercise of the power contained in s 501A of the Act which relevantly provides:

“(1)     This section applies if:

(a)        a delegate of the Minister; or

(b)        the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c)        not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)        not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister – natural justice applies

(2)       The Minister may set aside the original decision and:

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

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

if:

(c)        the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)        the person does not satisfy the Minister that the person passes the character test; and

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

The “character test” is relevantly defined in s 501 as follows:

(6)       For the purposes of this section, a person does not pass the character test if:

…

(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;

…”

The application

7                     On 3 February 2003 the applicant filed an application in the Court by which she sought to have the Minister’s decision cancelling her visa reviewed, pursuant to s 39B of the Judiciary Act 1903 (Cth).  The application for review was amended and in its final form it sought review on the grounds that the decision of the Minister:

·                    was made without jurisdiction or was affected by an error of jurisdiction;

·                    was not a bona fide attempt to exercise the power given by the Act.

8                     The amended application set out the following particulars under the ground that the decision was made without jurisdiction or was affected by an error of jurisdiction:

“In determining whether to exercise his discretion under section 501(1) of the Migration Act, the Respondent failed to comply with the rules of natural justice in that he took into account (without giving the applicant a chance to respond) information provided to him by a third person in an issues paper which was misleading in that –

1.         it sandwiched the personal conclusions of the author about certain issues between AAT findings on other issues which were adverse to the applicant in a manner which had the potential to mislead the Respondent to believe that the author’s personal conclusions were AAT findings;

2.         alternatively, it selectively used AAT findings which were adverse to the Applicant along with personal conclusions which were adverse to the Applicant without informing the Respondent that the personal conclusions were inconsistent with the AAT findings in relation to the issues upon which the personal conclusions were drawn; and

3.         alternatively, it selectively used AAT findings adverse to the Applicant and ignored AAT findings favourable to the Applicant; instead providing personal conclusions designed to make a case for cancellation.

The misleading information is –

The first sentence of Paragraph 8 of the Issues Paper which is inconsistent with paragraph 12 of the AAT finding;

The second sentence of Paragraph 8 of the Issues Paper which, when read in the context of AAT paragraphs 13 and 14, is inconsistent with the statement in AAT paragraph 14 ‘I do not find that … she provided bogus documents in connection with it, in this regard [i.e., living arrangements] …’;

Paragraphs 10 and 11 of the Issues Paper which is inconsistent with the first sentence of AAT paragraph 16; and

Paragraph 9 of the Issues Paper which unsuccessfully purports to contrast two AAT statements in a manner which would depict the second statement as being adverse to the Applicant.  The probable reason for this paragraph is that the author of the Issues Paper misunderstood the expression ‘I find myself to be unable to be satisfied on the balance …’ and believed it to be a negative rather than a positive finding.”  [references to court book omitted]

9                     The following particulars were given of the ground that the decision was not a bona fide attempt to exercise the power given by the Act:

“The Respondent was a Respondent to previous proceedings in the Administrative Appeals Tribunal brought by the present Applicant seeking review by the Respondent’s delegate to cancel the Applicant’s visa pursuant to section 500 of the Migration Act.  Though the Administrative Appeals Tribunal ruled in favour of the Applicant, the Respondent sought to use the Tribunal’s decision selectively to fit a preconceived conclusion to cancel the Applicant’s visa.”

10                  The relief sought by the applicant was a constitutional writ of prohibition prohibiting the Minister from taking action on his decision pending the determination of the application and a writ of certiorari quashing the Minister’s decision or setting it aside.

The applicant’s submissions

11                  Although the decision of the Minister to cancel the visa was a “privative clause decision” within the meaning of s 474(2) of the Act, the applicant proceeded on the basis of submitting that the decision was not to be regarded as having been made under the Act as, by reason of the failure to comply with the rules of natural justice upon which she relied, there was a failure to exercise jurisdiction:  Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at 45‑46. 

12                  In relation to the ground of review that the decision was not a bona fide attempt to exercise the power given by the Act, the applicant relied upon the exception to the operation of a privative clause decision found in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615.

13                  The applicant submitted that there had been a failure by the Minister to comply with the rules of natural justice in that he took into account information provided to him in an Issues Paper, without giving the applicant a chance to respond to such information.  That information was information said to have been presented to the Minister in a misleading and incorrect manner.  The submission was developed in the following manner.

14                  The applicant accepted that in the Notice of intention to cancel her visa dated 4 July 2002 she had been given the opportunity to comment on the following matters to be taken into account by the Minister:

“h      You [the applicant] falsely advised on form 47 (signed by you on 27 December 1996) that you were single, when at that time you were involved in a defacto relationship with Mr Adriey Kireyev, the father of your then three month old child.

 h       At interview on 27 August 1997, you provided false and misleading information about your relationship with the fathers of your two children.  You stated that you did not know the identity of the father of your first child and that the father of your second child had left you when you were pregnant.  Both of these statements were admitted to be false at a subsequent interview on 28 June 2000.

 h       You provided misleading information in relation to your visa application stating that you only lived with your mother while you were also living with your step father and defacto partner.  This included the provision of misleading information about your living arrangements in the form of letters received from the Dniprovsky District State Administration of the City of Kyiv (dated 22 November 1996 and 5 February 1997) and from the State Communal Enterprise for Maintenance of Lodgement Resources of Dniprovskiy District Council of People’s Deputies City of Kyiv (dated 27 May 1998 and 6 December 1999).

 h       In support of your visa application you submitted a document purporting to be a letter from the Ministry of the Interior in the Ukraine as to the bad character of Andrie Kireyev which was fraudulent.

 h       You declared in your visa application form that you understood that you must inform the Australian mission of any changes in your circumstances affecting your application.  You failed to advise of the change in the birth registration of your daughter, Nadiya on 7 October 1998 when you registered Nadiya’s father as Kireyev Andriey Anatoliyovych.  This was a material change in circumstances as the birth certificate provided to us previously showed that she did not have a registered father.

 h       You failed to advise that Nadiya was not living at 9 Cheyabinskaya Street, Flat 203.

 h       You declared in your visa application that there were no legal or other reasons which could delay your departure to Australia when you knew that claims to access or custody made by Andrie Kireyev in relation to your daughter Nadiya could do so.”

The applicant responded through her solicitors to this notice on 21 August 2002.

15                  On 19 November 2002 the Department of Immigration and Multicultural and Indigenous Affairs prepared a paper entitled “Issues for Consideration of Possible Cancellation of Olga Sokourenko’s Visa under S.501A of the Migration Act 1958”.  The Issues Paper was submitted to the Minister for his consideration.  Provision was made at the end of the Issues Paper for the Minister’s decision.  That part of the paper to be signed by the Minister provided:

“I have considered all relevant matters including an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, my Direction under s 499 of that Act, the non‑citizen’s comments (if any), and the national interest, and have decided that:

Please delete whichever is NOT applicable:”

There then followed three alternative provisions or formulations.  Two of those provisions were deleted and the provision which remained, and became, the Minister’s decision was that:

“I reasonably suspect that Ms Sokourenko does not pass the character test and Ms Sokourenko has not satisfied me that she passes the character test and I am satisfied that cancellation of her visa is in the national interest.  Accordingly, I have decided to exercise my discretion to set aside the original decision of the AAT to revoke the visa cancellation, so I hereby cancel Ms Sokourenko’s visa under section 501A of the Migration Act 1958.”

16                  No point was taken that the manner in which the Minister had made his decision did not comply with s 501A of the Act in that the Minister had not set out his reasons for making his decision:  cf Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281 at [54]‑[55].  I was informed that subsequent to the making of the Minister’s decision, particulars of his decision had been supplied to the applicant but that neither party wished to refer to or rely upon those reasons. 

17                  The Issues Paper contained a section headed “Reasonable suspicion”.  Thereunder the following matters were set out:

“4.       There is a reasonable suspicion that Ms Sokourenko does not pass the character test on account of her past and present general conduct.

5.         On 27 December 1996 Ms Sokourenko falsely advised on form 47 that she was single, when at that time she was involved in a defacto relationship with Mr Adriey Kireyev, the father of her then three month old child.

6.         At interview on 27 August 1997, Ms Sokourenko stated that she did not know the identity of the father of her first child and that the father of the second child had left her when she was pregnant.  At an interview on 28 June 2000, Ms Sokourenko admitted that both of these statements were false.

7.         The AAT found that Ms Sokourenko provided false and misleading statements regarding her relationship with the fathers of her children:

‘I do however find from both documentary evidence of interviews between migration officials and the secondary visa applicant and from her own oral evidence before the tribunal that she did make both false and misleading statements as to the positions in relation to the respective fathers of her two children, Vira and Nadia, and that she did so, not as a result only, as she would have it, shame in relation to her position as a twice unwed mother at ages 14 and 19 respectively, but with a view to avoiding possible complications in relation to migrating with her two daughters.’

8.         Ms Sokourenko provided misleading information in relation to her visa application stating that she only lived with her mother while she was also living with her step father and defacto partner.  This included the provision of misleading information about her living arrangements in the form of letters from the Dniprovsky District State Administration of the City of Kyiv (dated 22 November 1996 and 5 February 1997) and from the State Communal Enterprise for Maintenance of Lodgement Resources of Dniprovsky District Council of People’s Deputies City of Kyiv (dated 27 May 1998 and 6 December 1999).

9.         While the AAT found that Ms Sokourenko did not make any false or misleading statements in relation to evidence before the tribunal, the AAT also found:

‘I find myself to be unable to be satisfied on the balance that the secondary visa applicant was living in a de facto relationship with Andrea Kireyev, either at the date she completed her visa application or at any time and conversely I am not satisfied that she could not at all times be fairly described as a single girl living with her mother.’

10.       In support of her visa application Ms Sokourenko submitted a document purporting to be a letter from the Ministry of the Interior in the Ukraine as to the bad character of Andrie Kireyev.  This document was confirmed to be fraudulent.

11.       Officers of the Embassy contacted the head of the Dniprovsky District Department in Kiev who advised that while a document bearing the registration number and date had been sent to Ms Sokourenko in relation to a court summons, the form of the letter, content and stamp were fraudulent.  The head of the department advised that they did not write this letter.  Ms Sokourenko was asked at interview on 21 June 2001 whether she had provided any other fraudulent documentation and whether this particular letter was fraudulent.  Ms Sokourenko stated that she had not provided any fraudulent information and stated that the letter was not fraudulent.  Officers of the Embassy again sought to verify the genuineness of the document and were advised by the person whose signature purportedly appears on the document that it was fraudulent.

12.       Ms Sokourenko indicated that she was aware of the declaration in her signed visa application form that she must inform the Australian mission of any changes in her circumstances affecting her application.  Ms Sokourenko failed to advise of the change in the birth registration of her daughter, Nadiya on 7 October 1998 when she registered Nadiya’s father as Kireyev Andriey Anatoliyovych.  This was a material change in circumstances as the birth certificate provided previously showed that she did not have a registered father.  Further, Ms Sokourenko failed to advise that Nadiya was not living at 9 Cheyabinskaya Street, Flat 203.

13.       The AAT found that Ms Sokourenko did know that the possibility of parental claims made by Mr Kireyev might delay both her and Nadiya’s departure to Australia and that she should have notified the Australian mission of the changes in the particulars in Nadiya’s birth certificate.

14.       Ms Sokourenko declared in her visa application that there were no legal or other reasons which could delay her departure to Australia when she knew that claims to access or custody made by Andrie Kireyev in relation to her daughter Nadiya could do so.”

15.             On 22 March 2002 the decision of the delegate was set aside by the AAT and the matter remitted to the Department with a direction that Ms Sokourenko’s visa not be cancelled on the ground that she is not of good character under s.501 of the Act.  The AAT was satisfied that Ms Sokourenko was not of good character:

‘On the basis that the secondary visa applicant provided false information to migration officials in support of her visa application, the Tribunal finds that she does not pass the character test under s501 of the Act.’

16.             While the Tribunal was satisfied that Ms Sokourenko was not of good character, it found that the interests of Ms Sokourenko’s two biological children (Nadiya and Vera) outweighed the other primary interests.  The AAT’s findings are at Attachment A.

17.       Based on the above information it is open to you to reasonably suspect that Ms Sokourenko does not pass the character test on the grounds of her past and present conduct as defined under s501(6)(c)(ii).”

18                  In its decision of 22 March 2002 the Tribunal made a number of findings including the following:

“12.     I find myself to be unable to be satisfied on balance that the secondary visa applicant was living in a de facto relationship with Andrea Kireyev, either at the date she completed her visa application or at any later time and conversely I am not satisfied that she could not at all times be fairly described as a single girl living with her mother.

13.       The relationship with Mr Kireyev was, it seems, a strange one as well as an abusive one.  In her evidence before the Tribunal the secondary visa applicant accepted that she had a relationship with Mr Kireyev, but described it as being lovers.  She said they had no common property, that he did not support her or her child, that they slept sometimes at her mother’s apartment and sometimes at his mother’s apartment, a few doors away in the same street, but that they kept their clothes and possessions at the homes of their respective mothers.  She said they did not live together except that in 1998 her mother asked her to live for 1½ months at his mother’s place so Mr Kieyev wouldn’t ‘scandalize us’.

14.       The secondary visa applicant was not contradicted in any of these statements when cross‑examined and I do not find that she made any false or misleading statement in this regard in her visa application or that she provided bogus documents in connection with it, in this regard, or that she failed to notify the Australian mission of any relevant change in circumstance, in this regard.

15.       I do however find from both the documentary evidence (Exhibit 1, T40 and T98) of interviews between migration officials and the secondary visa applicant and from her own oral evidence before the Tribunal that she did made both false and misleading statements as to the positions in relation to the respective fathers of her two children, Vira and Nadia, and that she did so, not as a result only, as she would have it, of shame in relation to her position as a twice unwed mother at ages 14 and 19 respectively, but with a view to avoiding possible complications in relation to migrating with her two daughters.

16.       I am unable to find that the letter from the Ministry of the Interior, dated 6 December 1999, directed to Mr Kireyev’s bad character was or is a bogus document.  Such evidence as there is from both the secondary visa applicant and her aunt, Elena Stacenko, would suggest that the letter provided to the Australian mission (Exhibit 1, T81) was obtained in the same form from the Ministry and it is possible on their evidence of a subsequent visit to the Ministry, upon being informed the letter was believed false, that it is rather the case that the letter should not have been issued by the officer who did so, for transmission to the Embassy, but rather only for local court purposes or perhaps not at all.  This may explain the rather ambiguous subsequent undated letter from the Ministry to the Embassy, (Exhibit 1, T12) that the letter with the registration number of 6 December 1999 ‘was our response to citizen Sokourenko regarding her application and we recommended her to reply to the court.’  It is unnecessary however for me to make a finding in this regard as the original contention in respect of this document was not pursued on the hearing of this application by the respondent.”

19                  The applicant submitted that although she had been given the opportunity to comment on the matters raised in the notice of 4 July 2002, she had not been given the opportunity to comment on the matters which had been placed before the Minister in the Issues Paper in a way which was misleading.  The applicant’s complaint centred around the manner in which the material in the Issues Paper was presented and the failure of the Minister to comply with the rules of natural justice by affording the applicant the opportunity to address that material so presented. 

20                  Put shortly, the applicant submitted that she had not been given the opportunity to respond to the following misleading information:

·                    The statement that the Tribunal had found that she provided misleading information in relation to her visa application stating that she only lived with her mother whilst she was also living with her stepfather and defacto partner (in par 8 of the Issues Paper).  This was not the Tribunal’s finding in par 12 of its decision (par [18] above).

·                    The statement that the Tribunal had found that the applicant had provided misleading information about her living arrangements in the form of certain letters (in par 8 of the Issues Paper).  This was not the finding of the Tribunal in pars 13 and 14 of its decision (par [18] above).

·                    The statement that the Tribunal had found that the applicant had submitted a false document in support of her visa application purporting to be a letter from the Ministry of the Interior in the Ukraine as to the bad character of Mr Andriey Kireyev (in pars 10 and 11 of the Issues Paper) whereas the Tribunal, in par 16 of its decision (par [18] above), had been unable to find that the letter was a bogus document.

·                    The recitation of the Tribunal’s findings at par 12 of its reasons (par [18] above) regarding the applicant’s living arrangement were presented in a form which indicated that they were adverse to the applicant (in par 9 of the Issues Paper) when in fact they were not.

21                  The applicant also submitted that the author of the Issues Paper had made selective use of the findings of the Tribunal by only including findings in the Issues Paper which were adverse to the applicant with the result that the author was not acting bona fide and that this lack of bona fides was to be attributed to the Minister who based his decision upon the material contained in the Issues Paper.

22                  It was submitted that the failure to comply with the principles of natural justice in the respect submitted had the potential to affect the outcome of the Minister’s decision.  However, it was submitted that it was not necessary to show a causal relationship between the failure to comply with the rules of natural justice and the outcome of the Minister’s decision, it being sufficient that there was a failure to comply with the rules of natural justice with a consequent jurisdictional error. 

The Minister’s submissions

23                  The Minister’s submissions may be conveniently summarised as follows:

·                    The Notice of intention to cancel the visa dated 4 July 2002 contained the gravamen, in substance, of the matters raised in the Issues Paper and considered by the Minister.

·                    Paragraphs 7 to 13 of the Issues Paper are not presented or represented as findings of the Tribunal and there is not a misleading impression to that extent.  Nor would the Minister form a view that the paragraphs between pars 7 and 13 were findings of the Tribunal, the findings of which were attached to the Issues Paper.

·                    Even if the syntax of par 9 of the Issues Paper suggested contrasting statements, when par 9 is read, and the substance of it is understood, it can be seen that the statements are not contrasting and there is no inference that the last sentence is adverse to the applicant.

·                    The submission that the Minister’s decision was not a bona fide attempt to exercise the power given by the Act was in substance a submission that there was actual bias in that the author of the Issues Paper and the Minister had made up his mind before considering the matter.  In short, the applicant was submitting that there was a pre‑conceived judgment on the matter.  This submission was not made out as the Issues Paper required an evaluation of a number of matters by the Minister but such evaluations were not properly characterised as a pre‑conceived judgment.

·                    The Issues Paper did not contain selected findings of the Tribunal which were adverse to the applicant.  There were balancing considerations set out in the Issues Paper such as pars 9, 16, 25, 28 and 38‑42.

Relevant principles and conclusion

24                  There was little dispute between the parties as to the relevant principles to apply.  The Minister accepted that a decision resulting from a failure to comply with the principles of natural justice would not be a “privative clause decision” for the purposes of s 474 of the Act:  Plaintiff S1572002 v Commonwealth of Australia (supra) at 35 and 47. 

25                  The applicant accepted the proposition that the principles of natural justice do not involve the application of a fixed body of rules but rather require fairness in all the circumstances of the case:  National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312 per Gibbs CJ; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 554. 

26                  It is clear that it was not necessary for either the author of the Issues Paper or the Minister to make available the contents of the Issues Paper to the applicant before the Minister made a decision based upon the matters raised in the Issues Paper.  It has been accepted that the rules of natural justice do not require a decision‑maker or a departmental officer preparing material for consideration by a decision‑maker to disclose the reasoning process set out in the preparatory material upon which the decision is to be made.  In F Hoffmann‑La Roche & Co A G v Secretary of State for Trade and Industry [1975] AC 295, Lord Diplock said at 369:

“… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticizing his mental processes before he reaches a final decision.  If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”

See also El‑Sayed v Minister for Immigration, Local Government and Ethnic Affairs (1991) 22 ALD 767 at 773‑774; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (supra) at 555; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108.

27                  However, the fact that a decision‑maker does not have to disclose his or her chain of reasoning or evaluative conclusions to a person who may be affected by the decision‑maker’s ultimate decision does not relieve the decision‑maker from communicating to such a person the critical issues or circumstances which the decision‑maker considers to be relevant to the determination of the issue before the decision‑maker:  Kioa v West (1985) 159 CLR 550 at 587‑588 per Mason J, 602 per Wilson J and 628 per Brennan J.  In particular, any new matters which the person affected might not be aware of should be communicated to that person to enable that person to make a response to the decision‑maker or the decision‑maker’s delegate before the final decision is made.

28                  These principles have been applied in a number of cases.  In Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (supra) Jenksinson J, a member of the Full Court of the Federal Court, said at 108:

“… the preponderance of authority favours a rule or principle that an administrative decision‑maker’s evaluative conclusions on the material before him do not have to be communicated to an applicant so that considerations influencing the decision‑maker’s mind adversely to the applicant's interest may be reviewed before the decision is made in the light of any submission or evidentiary material the applicant may desire to tender in response to the communication.  But there are observations, which may be thought to constitute a gloss on the general rule, that favour a requirement that the applicant have his mind directed to the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it:  see Kioa v West (1985) 159 CLR 550 at 587, per Mason J; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 517, per Burchett J; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481‑482.  There are other observations, which may be thought to constitute another gloss on the general rule, that an unfavourable animadversion, by the decision‑maker or expressed by a departmental officer to the decision-maker, upon the conduct of an applicant, or even of another person whose interest in a decision favourable to the applicant is to be weighed by the decision‑maker, should be disclosed to the applicant so that he may respond, if the animadversion is not an obviously natural response to the circumstances which have evoked it:  see Minister for Immigration, Local Government and Ethnic Affairs v Kumar (unreported, Federal Court, Davies, Foster and Hill JJ, 31 May 1990); Kioa v West (supra) (at 573, 588, 634), where two members of the High Court treated such an animadversion, in par 21 of a submission to the decision‑maker, as discoverable to the applicants.”

29                  In Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (supra) Merkel J said at 557:

“While the general rule is that a decision‑maker is not obliged to comment on his or her preliminary views before making a final decision or to enable a party that is likely to be adversely affected by those views to address them prior to a decision being made, on some occasions the line between the views and conclusions of a decision‑maker and the material on which they are based may be a fine one.  The overriding principle is that the decision‑maker must bring to the applicant’s attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it:  see Kioa at 587 per Mason J; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481.  It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant’s attention, or that the applicant is on notice of its ‘essential features’:  see Mocan v Refugee Review Tribunal (1996) 42 ALD 241 at 247; Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 123; Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230; McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600‑601; Chu v Minister for Immigration, Local Government and Ethnic Affairs(1993) 45 FCR 540 at 548.”

30                  I am satisfied that the gravamen and substance of the critical issues adverse to the applicant which arose and came before the decision‑maker, the Minister, through the Issues Paper, were put to the applicant in the Notice of intention to cancel the visa dated 4 July 2002 and that the applicant was given the opportunity to respond to those matters.  I do not consider that the manner in which the Issues Paper was prepared, in particular pars 7 to 13, was such as to suggest, or represent, to the Minister that statements made by the author of the Issues Paper were findings of the Tribunal.  A clear distinction is drawn in the documentation between findings made by the Tribunal and specifically attributed to it, and statements or assertions not so attributed.  The consequence is that there were no fresh, new or unusual matters in the Issues Paper which had not previously been brought to the attention of the applicant.  There was no denial of natural justice in the manner in which matters in the Issues Paper were presented to the Minister. 

31                  The applicant accepted that the Minister was not bound by the findings of the Tribunal but maintained that the Issues Paper represented what the Tribunal had found.  Paragraphs 7, 9 and 13 are couched in terms that “the AAT found …” whereas the other paragraphs between pars 7 and 13 upon which the applicant relied are simply statements made by the author of the Issues Paper in a form which does not attribute them to the Tribunal.  I do not consider that there is any statement or necessary implication in pars 8, 10 or 11 of the Issues Paper that the Tribunal made the relevant findings in question.  I do not accept the applicant’s characterisation that the Issues Paper “sandwiched” personal conclusions of the author between Tribunal findings in a manner which had the potential to mislead the Minister to believe that the author’s personal conclusions were Tribunal findings. 

32                  It is true that the syntax of the opening words of par 9 of the Issues Paper suggests that a contrasting statement is to be found in the quotation which immediately follows the words “the AAT also found”.  The fact is that the statement which follows is favourable to the applicant.  When the quotation in par 9 is read, it is apparent and abundantly clear what the finding of the Tribunal was.  A reader of par 9 might wonder why the opening words are couched in the form they are, but there is no basis upon which par 9 can be read in a manner adverse to the applicant. 

33                  There is no substance in the submission that it was a denial of natural justice for the author of the Issues Paper to present Tribunal findings adverse to the applicant with personal conclusions adverse to the applicant without informing the Minister that the personal conclusions were inconsistent with the Tribunal’s findings in relation to the issues upon which the personal conclusions were drawn.  The applicant had been given the opportunity to make submissions to the Minister in relation to the Tribunal decision and the Tribunal’s findings.  It must be remembered that the applicant had been put on notice on or about 4 July 2002 that the Minister was considering exercising his power under s 501A of the Act and thereby overriding the Tribunal decision.

34                  The Issues Paper was not misleading and, in particular, it was not misleading for the author of the Issues Paper to use Tribunal findings adverse to the applicant and to ignore Tribunal findings favourable to the applicant and rather provide personal conclusions designed to make a case for cancelling the visa.  The author of the Issues Paper and the Minister were not bound by the Tribunal’s decision and the Minister had a specific power to override that decision. 

35                  In any event, it is incorrect to say that the Issues Paper ignored Tribunal findings favourable to the applicant.  Paragraph 9 of the Issues Paper (par [17] above) is one such example.  So is par 16 which stated:

“While the Tribunal was satisfied that Ms Sokourenko was not of good character, it found that the interests of Ms Sokourenko’s two biological children (Nadiya and Vera) outweighed the other primary interests.  The AAT’s findings are at Attachment A.” 

Further, par 28 commenced “The AAT found it unlikely that Ms Sokourenko would repeat her conduct given that her application is for a permanent visa …”.  Paragraphs 38 to 42 were also couched in terms favourable to the applicant’s character.

36                  It must also be remembered that, although a number of evaluations and opinions were offered and expressed in the Issues Paper, they were offered in a manner which demonstrated that the issue was open rather than concluded.

37                  I am satisfied that the decision was a bona fide attempt to exercise the power given by s 501A of the Act.  It was not a lack of bona fides for the author of the Issues Paper or the Minister to use parts of the Tribunal’s decision and not other parts in making the final decision.  There is no evidence on the material before me which warrants the conclusion that either the author of the Issues Paper or the Minister had a pre‑conceived view that the applicant’s visa should be cancelled before the final decision was made. 

38                  As the Minister submitted, the applicant’s submission that the decision was not a bona fide attempt to exercise the power given by the Act was, in substance, a submission of actual bias.  Put shortly, the applicant’s complaint was that the Minister had a pre‑conceived view which could not be swayed by anything in the Issues Paper or anything outside it.  The Issues Paper contained evaluations and expressions of opinion for the Minister, but such statements do not mean that a pre‑conceived judgment has been reached by either the author of the Issues Paper or the Minister.  There is nothing wrong in expressing tentative opinions or giving evaluations in the Paper to be presented to the Minister so long as the applicant is given the opportunity to address and comment upon such matters.

39                  The application will be dismissed with costs.

Associate:

Dated:              27 August 2003