Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2003] FCA 1263

2003FCA1263 - Corrigendum

FEDERAL COURT OF AUSTRALIA

Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)

[2003] FCA 1263

MIGRATION – judicial review – reasons for decision – cancellation of visa – departmental submission to Minister – decisional option endorsed by Minister – presented as reasons for decision – new set of reasons – tendered without verification by Minister through third party – whether admissible

EVIDENCE – documents – hearsay rule – Commonwealth records – reasons for decision to cancel visa – statutory obligation to produce reasons – tendered as document through party other than maker of decision – not admissible – decision-maker to be available for cross-examination if reasons verified on oath

Judiciary Act 1903 (Cth) s 39B

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Migration Act 1958 (Cth) s 501, s 501G

Acts Interpretation Act 1901 (Cth) s 25D

Evidence Act 1995 (Cth) s 59, s 64, s 67, s 155

W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55 cited

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 applied

Minister for Immigration and Multicultural Affairs v W157/00A (2002) 72 ALD 49 applied

R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 cited

Re Ruddock; Ex parte Truong (unrep, High Court, Hayne J, M14 of 2001, 22 March 2001) cited

Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311 cited

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

Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 followed

Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 cited

Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 cited

RIFAT NEZOVIC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W47 OF 2003

FRENCH J

6 NOVEMBER 2003

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W47 OF 2003

BETWEEN:	RIFAT NEZOVIC FIRST APPLICANT SEIDA NEZOVIC SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	6 NOVEMBER 2003
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

The statement of reasons of the respondent dated 28 September 2003 will not be received in evidence, to prove that they were the reasons for the decision under review, unless verified on oath either orally or by affidavit by the person who made the decision and unless the decision-maker is made available for cross-examination.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W47 OF 2003

BETWEEN:

RIFAT NEZOVIC

FIRST APPLICANT

SEIDA NEZOVIC

SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE:	FRENCH J
DATE:	6 NOVEMBER 2003
PLACE:	PERTH

REASONS FOR JUDGMENT ON ADMISSIBILITY OF MINISTERIAL STATEMENT OF REASONS FOR DECISION

Introduction

1 On 17 January 2003 the Minister for Immigration and Multicultural and Indigenous Affairs cancelled the visa of Rifat Nezovic who had migrated to Australia with his wife in 1994. The visa cancellation was based in substance upon the Minister’s finding that Mr Nezovic had been convicted of murder in Serbia in 1982 when he was aged 15. Mr Nezovic denies that he was so convicted. He has sought judicial review of the Minister’s decision. The hearing of his application commenced on 2 October 2003. At the hearing counsel for the Minister sought to provide reasons for the decision which were prepared many months after the decision itself was taken. Counsel sought to tender the reasons without any supporting affidavit by the Minister. Mr Nezovic’s counsel argues that the reasons are inadmissible unless verified by the Minister on oath in these proceedings and, if so verified, would require the Minister to be available for cross-examination on the reasons. I adjourned the hearing to rule on that objection as it is of importance to the future conduct of the proceedings.

2 For the reasons that follow I am of the view that the reasons, unless verified by the Minister, are not admissible. I am also of the opinion that if verified on oath by the Minister, in the circumstances of this case, it is appropriate that counsel for Mr Nezovic have the right to cross-examine the Minister on whether the written reasons now offered do in fact reflect the reasons for the decision at the time it was made.

Factual and Procedural History

3 Rifat Nezovic was born in Yugoslavia on 23 October 1966. He migrated to Australia in 1994 with his wife, Seida, and they settled in Western Australia under a class 209 Resident T100 Visa granted to each of them on 7 March 1994. Mr Nezovic is a fitter and turner.

4 Mr Nezovic and his wife applied for Australian citizenship in 1996. They were interviewed by an officer of the Department of Immigration. The officer put to Mr Nezovic that, as a boy, he had been convicted of murder in Serbia and had served a term of imprisonment. Mr Nezovic denied this. Indeed at a subsequent interview he produced certificates obtained from Serbia which he provided as evidence that he had no such conviction. Nothing happened for six years until June 2002 when the Nezovics’ lawyer, Mr Walker, wrote to the Department inquiring about the fate of their citizenship application. By way of response he was given a notice of intention that the Minister was considering the cancellation of Mr Nezovic’s visa. Mr Nezovic was given an opportunity to comment before the Minister considered whether to cancel his visa under subs 501(2) of the Migration Act 1958 (Cth).

5 Mr Nezovic’s lawyer wrote to the Department in response to this notice saying that Mr Nezovic denied any substantial criminal record and saying that no details had been provided by the Department in the notice as to the alleged offence. He went on to say that Mr Nezovic claimed that it was his father and not him who was convicted of murder. He had been placed in a juvenile hostel in the care of the State.

6 A departmental issues document was put to the Minister on 9 January 2003 seeking his decision on whether Mr Nezovic’s visa should be cancelled pursuant to s 501(2). It was put to the Minister in the document, as a matter of fact, that on 30 June 1982 Mr Nezovic was sentenced by the Novi Pazar District Court for a ‘s 501(7)(c) applicable offence’ namely ‘1 charge of murder, imprisonment for a period “between one to five years”.’ Reference was made to the time served by Mr Nezovic, said to be four years, four months and one week in a penal correction institution. It was then put that, based upon these facts and the supporting documentation, it was ‘open for [the Minister] to find on the above facts that there [was] a reasonable suspicion that Mr Nezovic [did] not pass the character test due to the fact that he [had] been sentenced to a term of imprisonment of 12 months or more’. The next section was headed ‘Evidence of Grounds’. The first item of such evidence was said to be a copy of Mr Nezovic’s Australian criminal history contained at Annex B to the issues document. That criminal history indicated that he has no convictions for any offence in Australia. The second piece of evidence was a copy of a statement from the Federal Ministry of Foreign Affairs of the Federal Republic of Yugoslavia dated 20 June 1996. This was Annex E to the document and contained a statement that Mr Nezovic had been sentenced by decision K28/82 of the District Court in Novi Pazar of 30 June 1982, for the criminal act punishable under Article 47/1 of the Criminal Code of the Socialist Republic of Serbia, to between one to five years in a penal-correctional institution which he served in the period from 4 September 1982 to 12 January 1987. Also under the heading ‘Evidence of Grounds’ was a reference to a copy of a letter from the Consulate General of the Federal Republic of Yugoslavia in Sydney dated 24 September 1996. This was Annex E1 and was an advice that the name of the offence under Article 47/1 of the Criminal Code of Serbia is ‘murder’.

7 The next subheading in the issues document was ‘Finding Against Character Test’. This contained two very short paragraphs each comprising one sentence. The first was simply a repetition of the statement that Mr Nezovic had been sentenced by the Novi Pazar District Court in respect of the offence of murder and imprisoned for the term set out above. The document then said:

‘[11] Based on the above information it is open for you to find that Mr Nezovic has a substantial criminal record and therefore cannot pass the character test.’

8 The next heading was ‘DISCRETION’. Up to this point it will be noted that there had been no reference at all to evidence provided by Mr Nezovic that he had not been convicted of the offence alleged. Reference to these matters arose only after the completion of the section headed ‘DISCRETION’ under a further section entitled ‘OTHER MATTERS RAISED BY/ON BEHALF OF MR NEZOVIC’.

9 As indicated in my reasons for judgment on the claim for interlocutory relief published on 25 March 2003, the structure of the issues document appeared to reflect a misconception about the process of reasoning for which s 501 provides. A reasonable suspicion having been established that a non-citizen fails to pass the character test, it is for the Minister then to determine whether the non-citizen fails to satisfy him that he passed the character test. In the part of the submission relevant to that issue there was absolutely no reference to Mr Nezovic’s contentions. It is only after the Minister finds that the non-citizen has failed to satisfy him that he passes the character test that the question of discretion arises.

10 Under the general heading of ‘DISCRETION’ reference was made in the issues document to various factors mentioned in Ministerial Directions which had been issued under s 499 of the Act. It was pointed out in the document that the Minister was not bound by his s 499 Directions but that it was open to him to be guided by the factors set out in them and to place whatever weight he regarded as appropriate on them.

11 The issues document then set out the considerations relevant to the exercise of the ministerial discretion. These were:

. Protection of the Australian Community

. The Expectations of the Australian Community

. The Best Interests of the Children

. Other Considerations

. Other International Obligations

12 The document finally turned to other matters raised by/on behalf of Mr Nezovic. It was at this point, for the first time, that it addressed Mr Nezovic’s denial that he had been convicted of murder. In this context the document again referred to the statement from the Federal Ministry of Foreign Affairs of the Federal Republic of Yugoslavia dated 20 June 1996 and the letter from the Consulate General of Yugoslavia in Sydney dated 24 September 1996. It then referred to a police certificate obtained by Mr Nezovic and issued by the Internal Ministry of Internal Affairs of the Republic of Serbia dated 14 October 1996 which stated that he had not been convicted. A statement from the Council Court of the Republic of Serbia dated 9 October 1996 certifying that there was no criminal procedure or investigation for criminal acts under the jurisdiction of that court against Mr Nezovic, was also cited. So too was a statement from the Ministry of Foreign Affairs in Yugoslavia dated 6 January 1997 that the police certificate asserting that Mr Nezovic had not been convicted was authentic. There was then a fax from the Australian Embassy in Belgrade noting that the statement from the Ministry of Foreign Affairs mentioned nothing about the information provided in the police certificate and speculating that Mr Nezovic might have contacts in the Internal Ministry in Novi Pazar. A further fax from the Australian Embassy dated 21 January 1997 was quoted in which it was said:

‘You must try to understand that corruption in this country is not unusual and for a fee any document can be produced.’

13 Another fax dated 7 January 1997 from the Australian Embassy in Belgrade stated that Mr Nezovic was 15 years old at the time of his conviction and had spent four years in a correctional institution for juvenile offenders. It was pointed out that according to local law, if he did not reoffend within a five-year period after his sentence was completed, his conviction would be deleted from the records. No particular conclusion was offered in respect of these various items of ‘evidence’ put before the Minister.

14 The issues document in Part E set out a number of optional paragraphs for adoption by the Minister. That not crossed out by the Minister together with the introductory words of Part E read as follows:

‘I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and Mr Rifat NEZOVIC’S comments, and have decided that:

(d) I reasonably suspect that Mr Rifat NEZOVIC does not pass the character test and Mr NEZOVIC 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.’

This decision was signed by the Minister.

15 By a letter dated 30 January 2003 the Department of Immigration and Multicultural Affairs gave notice to Mr Nezovic of the Minister’s decision to cancel his visa. The letter attached a copy of the issues document as signed by the Minister and included the following sentence:

‘I enclose with this Notice:

. a copy of the decision record that sets out the reasons for the decision (other than non disclosable information);’

Mr Nezovic was taken into immigration detention on 7 February 2003.

16 An application for an order of review of the Minister’s decision was filed in this Court on 28 February 2003. The application primarily relied upon the jurisdiction conferred upon the Court by s 39B of the Judiciary Act 1903 although it also made reference to a ground under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

17 On 25 March 2003, I made an order for Mr Nezovic’s interlocutory release from immigration detention pending the hearing of his application for review which at that time was set down for 29 April 2003. On 28 April 2003, the hearing of the application was adjourned to 18 September 2003 and the application was amended in terms of a proposed amended application which was filed in Court on that day. At that time the Minister had ‘conceded’ that the decision record provided to Mr Nezovic did not constitute a notice of the kind required by s 501G(1)(e) of the Migration Act setting out his reasons for the decision to cancel the visa. A statement of reasons was said then to be under preparation and it was anticipated that the Minister would be in a position to provide it to the applicant about two weeks from that date. An affidavit filed on behalf of the Minister also indicated that a request had been made by the Department on or about 14 April 2003 to the Australian Embassy in Belgrade asking it to obtain either a copy of the relevant court decision or a record of the court case held at the Novi Pazar Court on 30 June 1982 in order to ascertain whether or not there was indeed a case of mistaken identity as to the person convicted of murder on that date as claimed by Mr Nezovic and his wife. The Australian Embassy in Belgrade had indicated to the Department that it would take some weeks to complete those inquiries.

18 In the event, the hearing of the application was relisted to 2 October 2003.

19 When the matter came on for hearing on that date, counsel for the Minister sought to put in evidence an affidavit sworn by Mr Blades, a solicitor employed in the office of the Australian Government Solicitor, which affidavit exhibited a copy of what was said to be the Minister’s statement of reasons for the cancellation of Mr Nezovic’s visa pursuant to s 501(2) of the Migration Act. Counsel for Mr Nezovic objected to the tender of the ministerial reasons through the affidavit of a third party. He submitted that if the Minister wished to tender the reasons, then it should be done on his own affidavit and the applicant should have the opportunity to cross-examine him.

20 After hearing argument, I adjourned the hearing of the application with a view to ruling on the admissibility of the statement of reasons. The parties were given leave to make written submissions on that question.

Statutory Framework

21 The decision under review was made under s 501 of the Migration Act which provides in the relevant parts:

‘501(2) The Minister may cancel a visa that has been granted to a person if:

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

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

…

501(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7)); or

(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(i) the person’s past and present criminal conduct;

(ii) the person’s past and present general conduct;

the person is not of good character; or

(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i) engage in criminal conduct in Australia; or

(ii) harass, molest, intimidate or stalk another person in Australia; or

(iii) vilify a segment of the Australian community; or

(iv) incite discord in the Australian community or in a segment of that community; or

(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test.

501(7) For the purposes of the character test, a person has a substantial criminal record if:

(a) the person has been sentenced to death; or

(b) the person has been sentenced to imprisonment for life; or

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

(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.’

The Minister is required by s 501G to give notice of a cancellation decision, with reasons, to the visa holder. The section relevantly provides:

‘501G(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:

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

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

the Minister must give the person a written notice that:

(d) specifies the provision under which the decision was made and sets out the effect of that provision; and

(e) sets out the reasons (other than non-disclosable information) for the decision; and

…

(3) A notice under subsection (1) must be given in the prescribed manner.

(4) A failure to comply with this section in relation to a decision does not affect the validity of the decision.’

22 The construction of s 501G(1)(e) may have to take into account the provisions of s 25D of the Acts Interpretation Act 1901 (Cth) which provides:

‘Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.’

23 Also relevant are provisions of the Evidence Act 1995 (Cth) relating to the hearsay rule, exceptions to that rule and the admissibility of official records.

24 The hearsay rule is set out in s 59 of the Evidence Act which provides:

‘59(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact...’

25 There is a number of exceptions to the hearsay rule. Section 63 deals with the reception of hearsay evidence in civil proceedings where the maker of the relevant representation is not available to give evidence about an asserted fact. This is not a case in which it is suggested that the Minister is not available to give evidence.

26 Section 64 establishes another exception to the hearsay rule in civil proceedings notwithstanding that the maker of the relevant representation is available to give evidence. That section provides in the relevant parts:

‘64(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to:

(a) oral evidence of the representation that is given by a person who saw, heard, or otherwise perceived the representation being made; or

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation;

if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.’

In the ordinary course, if the exception under s 64(2) is to be relied upon notice is to be given under s 67 which relevantly provides:

‘67(1) Subsections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence.

(2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.

(3) The notice must state:

(a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and

(b) if subsection 64(2) is such a provision – the grounds, specified in that provision, on which the party intends to rely.

(4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice.

(5) The direction:

(a) is subject to such conditions (if any) as the court thinks fit; and

(b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.’

Section 68 provides that where a notice discloses that it is not intended to call the person who made the previous representation because it would cause undue expense or undue delay or would not be reasonably practicable then a party may not later than 21 days after notice has been given, object to the tender of the evidence, or of a specified part of the evidence. The section provides for objection to be made by giving to each other party a written notice setting out the grounds on which the objection is made. The Court may then, on the application of a party, determine the objection at or before the hearing.

27 Section 155 of the Evidence Act provides for the admissibility of official records. The section relevantly provides:

‘155(1) Evidence of a Commonwealth record or of a public record of a State or Territory may be adduced by producing a document that:

(a) purports to be such a record and to be signed or sealed by:

(i) a Minister, or a Minister of the State or Territory, as the case requires; or

(ii) a person who might reasonably be supposed to have custody of the record;

…

(2) If such a document is produced, it is presumed, unless evidence that is sufficient to raise doubt about the presumption is adduced, that:

(a) the document is the record, copy or extract that it purports to be; and

(b) the Minister, Minister of the State or Territory or person:

(i) signed or sealed the record; or

(ii) certified the copy or extract as a true copy or extract;

as the case requires.’

28 The term ‘Commonwealth record’ is defined in the Dictionary for which the Act provides. The definition relevantly includes the following:

‘Commonwealth record means a record made by:

…

(c) a person or body other than a Legislative Assembly holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or

…

and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a), (b), (c), (d) or (e), but does not include a record made by a person or body holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned.’

The Grounds of Review

29 The application for an order of review was amended in Court on 28 April 2003. The grounds of the application are as follows:

‘1.0 In making or purporting to make the decision the Respondent acted without or in excess of jurisdiction, in that he failed to understand and to discharge the requirements of Section 501(2) of the Migration Act 1958 (“the Act”) by addressing the questions which he was required to address, namely:

1.1 whether he reasonably suspected that the First Applicant did not pass the character test (“the first question”); and, if so,

1.2 whether the First Applicant had satisfied him that he passed the character test (“the second question”); and, if not;

1.3 whether, in the exercise of his discretion, he should cancel the visa of the First Applicant (“the discretion”).

Particulars

(a) A submission was prepared by departmental officers of the Respondent for his use in making the decision;

(b) It should be inferred that the submission constituted the only material provided to and considered by the Respondent for the purpose of making the decision;

(c) The Respondent, in breach of Section 501G(1)(c) of the Act, failed to give to the First Applicant a written notice that sets out the reasons for the decision;

(d) It should be inferred that the process of reasoning exposed in the submission was adopted by the Respondent;

(e) The structure of the submission reveals that the Respondent failed to understand that the decision-making task had the three distinct components referred to above, and failed to address each of them as separate and distinct matters.

2.0 In making or purporting to make the decision the Respondent acted without or in excess of jurisdiction, in that he acted solely on the basis of material which failed to present to him, or even disclose, the true controversy and the true question for decision, namely whether the First Applicant in fact had been convicted of murder.

Particulars

(a) The Applicants repeat Particulars (a) to (d) inclusive to Paragraph 1.3 above;

(b) In those parts of the submission which were directed respectively to the first question and to the second question, there was no reference:

(i) to the fact that the First Applicant had disputed and was disputing that he had been convicted of murder; or

(ii) to the evidence provided by the First Respondent to support his assertions that he had not been so convicted;

which matters were instead referred to only in the part of the submission directed to the exercise of the discretion.

(c) The first and second questions were presented in those parts of the submissions as questions admitting in each case of only one answer, namely that which would be adverse to the First Respondent.

3.0 In making or purporting to make the decision the Respondent acted without or in excess of jurisdiction, in that he failed altogether to consider the question of the proper characterisation of the offence of which the First Applicant was said to have been convicted when, on the material, such consideration was required.

Particulars

(a) The Applicants repeat Particulars (a) to (d) inclusive to Paragraph 1.3 above;

(b) The information relied upon in the submission included that the Article under which the First Applicant was said to have been convicted applied to a person who deprived another person of life;

(c) Such information alleged that the First Applicant had been sentenced to imprisonment for a period between one and five years.

4.0 In making or purporting to make the decision the Respondent acted without or in excess of jurisdiction, in that he misunderstood the nature of his discretionary power to cancel a visa under s 501(2) of the Migration Act 1958.

Particulars

The Respondent wrongly understood that the power was a power to decide not to cancel a visa, when in fact it is a power to decide to cancel a visa.’

30 The grounds of the application are of significance in connection with the proposed ruling as it was suggested by counsel for Mr Nezovic that the reasons provided by the Minister have been structured to meet them.

The Admissibility of the Reasons

31 As appears from its language, s 501G requires, not merely the provision of a statement of reasons, but a written notice to the person whose visa has been cancelled. The notice is required to set out the decision, the provision under which it was made and the reasons for the decision. The conjunction of these elements suggests, although the Act does not expressly require, that the written notice under s 501G is to be the means by which the decision to cancel a visa is communicated to the visa holder.

32 In W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55, Lee J identified the purpose of the obligation imposed by s 501G in respect of decisions under s 501(2) thus:

‘…to safeguard the integrity of such decisions.’

Adopting the language of s 476(1)(a) of the Act, as it then stood, he characterised the provision of reasons under s 501G as part of the procedures to be observed ‘in connection with’ the making of a decision under s 501(2). His Honour said at [64]:

‘By s 501G(1)(e) parliament required the minister, in making a decision under s 501(2), to have regard to the requirement that the decision had to be explained in writing in a document which set out the decision and the reasons for the decision. The creation of the document was part of the procedure to be observed “in connection with” the making of the decision: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [30]-[31] per Gaudron J; cf at [77] per McHugh, Gummow and Hayne JJ. As noted in Administrative Review Council Report to the Attorney-General (at [70]), the preparation of a statement of reasons is part of the decision-making process.’

In their recent joint judgment in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 at [43], Gleeson CJ, Gummow and Heydon JJ, accepted the characterisation advanced by Lee J that the obligation to provide reasons was a procedure required by the Act to be observed in connection with the making of the decision. Their Honours also observed in a footnote to their judgment (fn 23) that Lee J’s treatment of the subject was not challenged on the appeal from his decision – Minister for Immigration and Multicultural Affairs v W157/00A (2002) 72 ALD 49 at 56.

33 The issue before the High Court in Palme was whether a failure to provide reasons as required by s 501G constituted a jurisdictional error which would vitiate the cancellation decision in respect of which the reasons were required. Their Honours held that not to be the case.

34 Before turning to the reasons now proffered on behalf of the Minister, it is necessary to consider the status of the notice and ‘reasons’ provided to Mr Nezovic on 30 January 2003. Did that notice and the record of decision bearing the ministerial endorsement meet the requirements of s 501G? If the answer were in the affirmative then there would be a real question whether the reasons now tendered were provided under s 501G.

35 Section 501G requires that the notice of cancellation of a visa under s 501(2):

1. Be written.

2. Set out the decision.

3. Specify the provision under which the decision was made and set out the effect of that provision.

4. Set out the reasons for the decision.

The letter of 30 January 2003 specified the decision and the provision under which it was made. It set out the effect of s 501(2) by setting out its terms. To that extent the notice fulfilled the first three requirements listed above. The remaining question is whether the departmental submission incorporating the Minister’s choice of decisional option and his signature set out the reasons for the decision.

36 A similar question was considered by the High Court in Palme. In that case the visa holder had been supplied with a copy of the departmental record bearing the decisional option signed by the Minister utilising the same form of words as appears in Part E of the departmental issues document in the present case. In the joint judgment their Honours quoted from the opening words of Part E:

‘I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of [the Act], (2) [the Direction] and [the prosecutor’s] comments and have decided…’

Their Honours referred to R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120 where it was decided that the ‘inadequacy’ of material on which a decision-maker acted could support the inference that the decision-maker had applied the wrong test or was not ‘in reality’ satisfied of the requisite matters. Their Honours then said at [39]:

‘Given the detail supplied in the Submission (including the annexures) and the statement by the Minister set out above, and not challenged, that he had considered all relevant matters, the decision in Melbourne Stevedoring is of no assistance to the prosecutor.’

However the Court went on:

‘But that does not answer the allied but conceptually distinct point that what appears on p 16 of the Submission does not “set [ ] out the reasons … for the decision”. There are some issues for decision which are of such a nature that, as Kitto J put it, with reference to the statements by Lord Herschell and Eve J:

“[I]t is not to be expected that [the judge] will be able, at any rate satisfactorily to the litigants or to one of the litigants, to indicate in detail the grounds which have led him to the conclusion.” (In re Wolanski’s Registered Design (1953) 88 CLR 278 at 281)

The question for decision by the Minister here was not of that order. In any event, the Parliament obliged the Minister, having reached a conclusion, to set out his reasons and, in order to discharge that duty, it was at least necessary for him to express the essential ground or grounds for his conclusion that the prosecutor had not satisfied him that he passed the character test and that the prosecutor’s visa should be cancelled. That was not done.’

37 This does not exclude the possibility that the ministerial endorsement of a decisional option in a departmental document can disclose the reasons upon which the Minister has made his decision. That is a question of fact. But if the document sets out a number of fact finding and discretionary choices which may be made in different combinations and still yield the same decision, then it will not identify the reasons for decision.

38 In Palme, as McHugh J pointed out in respect of the departmental brief to the Minister:

‘The brief did not argue for any particular conclusion. It also contained an attachment that listed the options open to the Minister. One option was to cancel the visa. The Minister took that option, which he indicated by crossing out the other options. The copy sent to the prosecutor showed that the Minister had exercised this option and cancelled the visa. But it is impossible to deduce from the selection of the option and the brief’s discussion of the issues, what were the Minister’s reasons for cancelling the visa.’

Kirby J at [114] observed that simply to treat the brief as incorporated by reference in the Minister’s consideration of ‘all relevant matters’ in Part E gave no clue as to the way the Minister resolved the tension critical to the decision in the case between those factors favouring cancellation and those factors favouring non-cancellation. His Honour said at [115]:

‘The very fact that the design of the brief in its concluding section permitted the Minister to reach opposite decisions, indicates that provision of the brief without some elaboration and explanation by the Minister would not constitute notification of “the reasons” for the decision. The same briefing material could not logically constitute “the reasons” for cancellation and also non-cancellation without a ministerial indication of a preference for one view of the matters contained in the brief over another or an assignment of greater weight to one or more considerations than to others.’

39 The question whether a departmental issues document endorsed with the ministerial choice of decision meets the requirements of s 501G has been treated in decisions of this Court as a matter of fact depending upon the content of the document. In the High Court Hayne J, sitting alone in Re Ruddock; Ex parte Truong (unrep, High Court, Hayne J, M14 of 2001, 22 March 2001), held the departmental brief to comply with the statutory obligation:

‘Read as a whole, the document reveals the matters that were before the minister, assigned to various of them particular weight, and it was on the basis of that information - and I interpolate - only that information, that the Minister then reached the decision which he did.’

His Honour said the matter was put beyond doubt by the terms of the covering notice given to Mr Truong that the decision records set out the reasons for decision.

40 The above passage was quoted by Stone J in Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311. Her Honour there accepted a submission by counsel for the Minister that the departmental brief constituted sufficient compliance with s 501G(1)(e). She found that the department’s brief to the Minister contained the applicant’s personal and visa details, information relevant to the character test, an assessment of the applicant’s character and an outline of matters relevant to the Minister’s discretion. The Minister’s decision was consistent with the analysis and recommendations made in the departmental brief. Her Honour said at 317:

‘Given that the Minister is obligated by s 501G(1)(e) to provide reasons for his decision, the completion of Part E by the Minister without comment leads to the conclusion that the Minister adopted the brief as a statement of his reasons.’

41 In W157/00A, Lee J held the departmental issues document did not constitute a statement of reasons fulfilling the requirements of s 501G. Nevertheless his Honour relied upon material in the issues document to conclude that the Minister had failed to give proper consideration to a relevant matter, namely the interests of the visa holder’s children.

42 The Full Court allowed an appeal in relation to the latter conclusion, but agreed with his Honour that the issues document did not meet the requirements of s 501G. In her judgment in Minister for Immigration and Multicultural Affairs v W157/00A, Branson J observed that the Part E declaration that the Minister had considered ‘all relevant matters’ left uncertain what were the matters considered by the Minister as opposed to the author of the document (at [52]). Nor did that document assign particular weight to the issues it canvassed. It did not confirm that the Minister’s decision was based only on the information contained in the document. Her Honour went on to say at [54]:

‘In my view, the most significant indicator that the issues document does not set out the reasons for the Minister’s decision to cancel the respondent’s visa is the fact that it was plainly drawn so as to recognise that the Minister, assuming that he concluded that he had power to cancel the visa, had a discretion to cancel the visa or alternatively not to cancel the visa.’

The content of the document did not suggest that only one of the available options was realistically open. In the circumstances the Minister’s submission that the issues document did set out the reasons for his decision was to be understood as a submission that the issues document could equally have set out the Minister’s reasons for decision had he decided not to cancel the visa. Her Honour said:

‘In my view, the idea that the one document can be characterised as a notice that sets out the reasons for diametrically opposed decisions depending on whether the expression “agreed” or “not agreed” at the conclusion of the document is crossed out runs contrary to logic.’

Goldberg and Allsop JJ agreed with her Honour in separate concurring judgments.

43 In Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7, Allsop J, with whom Jacobsen J agreed, could find no distinction between the departmental briefing paper in that visa cancellation case and the paper in W157. His Honour said:

‘The document sent to the appellant here did not explain why the Minister exercised the discretion in the way he did, what he took into account and what weight he gave matters beyond what appears at [53] above [the Part E declaration that the Minister had considered all relevant matters]. Its adoption by signing and choosing the fourth available alternative did and does not illuminate the reasons for that choice.’(at [57])

44 In W157/00A, Lee J at first instance observed at [67] that:

‘Whether reasons have been provided by the minister as required by s 501G(1)(e) is a question of fact which may depend upon the acts of the minister and the content of the document relied upon.’

It would be wrong to treat conclusions of fact, even by appellate courts, as setting down principles of law. However what the High Court has said in Palme’s case and what the Full Courts of the Federal Court have said in W157/00A and Ayan are indicative of the proper application of s 501G(1) in particular circumstances which are indistinguishable from those before the Court in this case. That is not to say that a departmental issues paper endorsed by the Minister could not constitute a statement of reasons. It might do so because it traced one path of reasoning to a single conclusion which was adopted by the Minister on the basis of that reasoning. Alternatively, a departmental paper might identify two alternative logical pathways, one leading to cancellation and the other to a decision not to cancel a visa. Provided that no other basis for the decision was open on the evidence than that identified in the departmental document it could arguably constitute a statement of reasons for the purposes of s 501G.

45 The document presently before the Court does not fall into those categories. It leaves open too many areas of uncertainty as to the basis upon which the ministerial decision was made to amount to reasons for the decision for the purposes of s 501G. That is not to say that it may not be used to support an inference that the Minister’s decision was affected by an erroneous application of the law informed by a misconstruction of the section.

46 The question that falls for determination now is whether the Court can receive the Minister’s ex-post facto reasons as evidence, over objection, other than as an element of the sworn evidence of the Minister himself. The Minister seeks to have the reasons admitted as an exhibit to the affidavit of the solicitor, Mr Blades, who says of the reasons, in par 8 of his affidavit:

‘8. Annexed hereto and marked ‘DVB6’ is a copy of the respondent’s statement of reasons for the cancellation of Mr Nezovic’s visa pursuant to s 501(2) of the Migration Act 1958.’

47 The Migration Act does not in terms render the reasons admissible on the basis of their production in Court absent sworn verification by the Minister. Mr Blades’ evidence that what he produces are the reasons of the Minister is necessarily hearsay. It amounts, in the language of s 59 of the Evidence Act, to ‘evidence of a previous representation made by a person… to prove the existence of a fact that the person intended to assert by the representation’. The representation is that of the Minister or some other person who has supplied the reasons to Mr Blades. The asserted fact is that the reasons are those of the Minister. Section 59 of the Evidence Act has the effect that such evidence is not admissible under the hearsay rule unless it falls within one of the specific exceptions for which the Act provides. A potentially relevant exception is to be found in s 64(2) of the Evidence Act which does allow for hearsay evidence to be given in civil proceedings even though the maker of the relevant representation would be available to give evidence if called. Subsection 64(2) however does not apply unless the party relying upon it has given reasonable notice in writing to each other party of its intention to adduce the evidence (s 67(1)). No notice has been provided as required by s 67(1) and no direction has been sought under s 67(4) that the exception apply notwithstanding that notice has not been given.

48 Counsel for the Minister argued, in written submissions filed on 28 October 2003, that a written statement of reasons provided under a statutory duty to provide such a statement as part of the decision-making process will be admissible as part of that process. It will also be admissible as a record of the material before the decision-making, the findings of fact made by the decision-maker and his or her reasons for making the particular decision. The statement of reasons in this case was said not to be inadmissible by virtue of s 59 of the Evidence Act because it was otherwise admissible as a Commonwealth record under s 155. The Minister’s reasons were said to constitute a Commonwealth record for the purposes of that section.

49 Similar arguments were put to Hely J in Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069. There a decision to cancel a visa was made on 15 October 2000. The applicant was notified and provided with a copy of the ‘decision record’ on 22 October 2000. As in the present case, counsel for the Minister sought to put before the Court, exhibited to a solicitor’s affidavit, the Minister’s reasons for decision evidently prepared in or about June 2003. Objection was taken to their tender. Hely J ruled on the question of admissibility as part of his final judgment.

50 His Honour referred to the view of the majority in Minister for Immigration and Ethic Affairs v Taveli (1990) 23 FCR 162 at 168 and 178 that an unverified statement of reasons by a minister given under s 13 of the Administrative Decisions (Judicial Review) Act was not admissible in evidence on a tender by counsel for the Minister. His Honour said at [63]:

‘In the present case, the statement of reasons was prepared in obedience to the continuing obligation under s 501G of the Act, but they are not in any meaningful sense part of the decision-making process so as to fall within the res gestae exception to the hearsay rule. To fall within that exception, the statement of reasons must accompany the decision or be substantially contemporaneous with the decision. Here, the statement of reasons was provided some eight months after the decision to which they relate. Accordingly, the statement of reasons will only be admissible under one of the statutory exceptions to the hearsay rule.’

His Honour referred to s 155 of the Evidence Act and observed that that provision facilitates proof of Commonwealth records by allowing the production of a document purporting to be such a record and signed by the relevant minister. However as his Honour said:

‘But that does not mean that every Commonwealth record is admissible in all proceedings. The effect of s 155 is to facilitate proof of records which are otherwise admissible. Section 155 is not a general exception to Chapter 3 of the Evidence Act in relation to admissibility of evidence.’

51 In his written submissions, counsel for the Minister submitted that his Honour was in error in concluding that a statement of reasons prepared in obedience to the continuing obligation under s 501G of the Migration Act was not part of the decision-making process and only admissible under one of the statutory exceptions to the hearsay rule. It was also submitted that his Honour was incorrect in concluding that the Minister’s statement of reasons was inadmissible by virtue of s 59 of the Evidence Act and not admissible pursuant to s 155. It was submitted that the statement of reasons exhibited to Mr Blades’ affidavit constitutes evidence of a Commonwealth record, namely the written notice of the Minister’s reasons for his decision to cancel the visa as required to be provided by s 501G. As such, it was said, it is not hearsay and is admissible as evidence of what it purports to be a record of, namely the respondent’s reasons for his decision to cancel the visa.

52 The judgment of Hely J in Tuncok is a carefully considered and recent judgment on the same issue as is before me in the present proceedings. Unless I was satisfied that his Honour was plainly wrong, I would not be justified in departing from the ratio of his decision on that point. In that respect I refer to what I said in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [74] to [76]. Judicial comity does not merely advance mutual politeness between judges of the same or co-ordinate jurisdictions. It supports the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. Where questions of law and in particular statutory construction are concerned, the view that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is not likely to be adopted having regard to the choices that so often confront the courts particularly in the area of statutory construction. As I observed in Hicks, where a serious doubt arises on the part of one judge about the correctness of the law as stated by another in a matter of importance, it may be desirable for a case to be stated by the Full Court for early resolution of the question. I am not, however, troubled by any such doubt about the correctness of his Honour’s reasoning in Tuncok.

53 Section 155 authorises the production of ‘evidence of a Commonwealth record’. It does not in terms render evidence of such a record proof of the truth of its contents. The evidentiary effect of a Commonwealth record proven to be such by operation of s 155 is to be determined according to rules external to s 155. Subsection 155(2) is consistent with that proposition. It creates a presumption that the document produced pursuant to the section is the record copy or extract that it purports to be.

54 The statement of reasons signed by the Minister, if admissible as a Commonwealth record, would be admissible only to show that the Minister states that these are his reasons. They do not establish the correctness or reliability of that statement. And given that it is for the latter purpose that they are tendered, they are not admissible by virtue of s 155 having regard to the operation of the hearsay rule. I should add that if I am wrong in this analysis and the ministerial statement of reasons is admissible as proposed to prove that the reasons stated were those for which the Minister made the decision, then I would be inclined to exercise the general discretion to exclude them as unfairly prejudicial pursuant to s 136 and/or s 135 of the Evidence Act.

55 Although it may be said that the duty to produce reasons under s 501G is a continuing duty, that does not render reasons produced months after the decision an integral part of the decision-making process. That is not to negate Lee J’s characterisation of reasons produced under s 501G as produced ‘in connection with’ the making of the decision for the purposes of the former s 476 of the Act. But the reasons so produced many months after the decision are not part of the res gestae. Where they have been produced after the commencement of proceedings when the grounds of the application for review are known then, absent consent by counsel for the applicant, it would be quite unsafe to receive them in an unverified form and to deny to counsel for the applicant the opportunity to put to the decision-maker legitimate questions going to the reliability of the document as a true statement of the reasons for decision.

56 In that connection, I refer to what I said in Taveli about the duty of a decision-maker providing reasons under s 13 of the Administrative Decisions (Judicial Review) Act:

‘It is not enough that an administrator confronted with a request for reasons should draft a set of reasons and findings which he or she think will stand up in court. The duty under s 13 is clear. It is to set out “the findings on material questions of fact” and “the reasons for the decision”. That does not require the degree of precision or detail which may be appropriate to a judicial decision. But it demands a statement of the real findings and the real reasons. It is an incident of the obligation that the statement should not omit findings or reasons for the decision which may, in the light of a pending review application, appear to be irrelevant or reflective of some false assumption or prejudgment. If an official or his or her advisors discover error when asked to provide a s 13 statement, the appropriate course may be to concede that the decision requires reconsideration. It is not appropriate to draft a statement from which the error is censored. The Court is sufficiently aware of the pressures associated with administrative responsibility for high volume and urgent decision-making to accept that mistakes will occur which can and should be redressed without any personal reflection upon the competence or integrity of the officials whose decisions are under challenge. But the statute requires that a statement provided under s 13 will reflect the true reasons for the decision in question. Anything less would approach, if not amount to, a fraud upon the public and the Court.’

57 The thrust of that passage is that the reasons for decision given must be the true reasons. A statement of reasons produced long after the decision to which they refer, may fall short of that standard for a variety of reasons including the fallibility of human memory.

58 It is not necessary for present purposes to canvass generally the circumstances in which a decision-maker subject to judicial review should be available for cross-examination on the reasons for the decision. Where, however, reasons for decision have been produced after the grounds for review have been identified and where it is arguable, as in this case, that they have been structured to avoid criticisms, contained in the applicant’s grounds of review, of the sequence of reasoning suggested by the departmental issues paper, then there are legitimate questions which counsel for the applicant would be entitled to put to the decision-maker in cross-examination.

59 In the circumstances, the reasons for decision exhibited to Mr Blades’ affidavit will not be received in evidence. Should the Minister swear an affidavit exhibiting the reasons then, in my opinion, he should make himself available for cross-examination as a condition of the tender of his affidavit or oral evidence verifying the reasons. No question of issuing a subpoena arises. His availability is a condition of the admissibility of the reasons. I should add that the person who must verify the reasons is the person who actually made the decision as Minister and not his successor in that office. It is also that person who must be available for cross-examination if the reasons are to be received in evidence.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated: 6 November 2003

Counsel for the Applicant:	Mr SA Walker

Solicitor for the Applicant:	Bayly & O'Brien

Counsel for the Respondent:	Mr PR Macliver

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing: Applicants’ Written Submissions: Respondent’s Written Submissions:	2 October 2003 20 October 2003 28 October 2003

Date of Judgment:	6 November 2003

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