FEDERAL COURT OF AUSTRALIA

Zekiroski v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1288

MIGRATION – judicial review – cancellation of visa – character test – test satisfied – discretion to cancel visa – oral hearing – hearing interrupted – whether denial of natural justice

Migration Act 1958 (Cth) s 501

Azzi v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 120 FCR 48 cited

Kioa v West (1985) 159 CLR 550 applied

Luu v Renevier (1989) 91 ALR 39 cited

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 cited

NABC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 138 applied

Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 cited

WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 cited

M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3^rd ed, 2004)

STEVEN ZEKIROSKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 941 of 2003

FINKELSTEIN J

8 OCTOBER 2004

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

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

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

REASONS FOR JUDGMENT

1                     The applicant held a Transitional (Permanent) Class BF visa.  The Minister decided to cancel that visa under s 501(2) of the Migration Act 1958 (Cth) and now proposes to remove the applicant from Australia.  The applicant alleges that the Minister’s decision to cancel his visa was unlawful and seeks to have the decision quashed.

2                     The Minister’s decision to cancel the applicant’s visa was made on character grounds.  Section 501 relevantly provides:

“(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.  …

(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

(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; 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.

(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

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

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

According to this section, if the Minister is satisfied that a person does not pass the character test he can cancel the person’s visa.  However, the Minister is not obliged to cancel the visa in that circumstance.  The Minister has a discretion whether or not to do so. 

3                     The applicant has a substantial criminal record which includes convictions on three occasions of offences for which sentences of at least 12 months imprisonment were imposed.  In those circumstances the Minister’s decision that the applicant did not pass the character test could not be, and has not been, challenged.  What is challenged is the Minister’s discretionary decision to exercise the power conferred by s 501(2).

4                     The following facts are drawn primarily (but not exclusively) from the accounts given by the applicant to an officer of the Department of Immigration and Multicultural and Indigenous Affairs, Mr James, during an interview on 18 February 2003, and by the applicant’s father in an interview with Mr James on 21 March 2003.  These interviews provide the background for the applicant’s challenge to the Minister’s decision, so it is necessary to set out their contents in a little detail.

5                     The applicant is 29 years old.  He was born in an area which was then part of the Socialist Federal Republic of Yugoslavia and is now the Former Yugoslav Republic of Macedonia.  The applicant’s father migrated to Australia from Yugoslavia in 1981.  The applicant’s mother remained (and still remains) in Macedonia, having separated from the applicant’s father and established a new family.  In 1984 the applicant, then nine years old, moved to Australia to join his father.  Initially, the applicant and his father lived in the inner suburbs of Sydney.  The applicant’s father worked long hours during the daytime and sometimes left the applicant alone at night.  When the applicant was 11, he was removed from his father’s care.  The applicant’s father then moved to Melbourne.  Later, the applicant also moved to Melbourne, living first in government accommodation and then returning to live with his father.

6                     Both in Sydney and Melbourne, the applicant came under the influence of young men who (apparently) introduced him to drugs and petty crime.  Initially the applicant consumed cannabis, then amphetamines, and at some stage developed an addiction to heroin.  So began his criminal career.  The applicant has a lengthy record of convictions for minor crimes.  The early offences concerned joyriding, but they soon extended to crimes committed primarily to support his drug habit.  The applicant accepts that his drug addiction was the cause of many of his criminal convictions.  He suggested that the most recent offences were unrelated to drugs.  The convictions in respect of which the applicant was sentenced to more than twelve months imprisonment occurred on 20 February 2001, 28 August 2002 and 22 May 2003.  The details of the offences are largely irrelevant, although it might be noted that each involved the theft of a motor vehicle and associated offences.  Some of the offences were committed while the applicant was on parole. 

7                     The applicant is receiving methadone treatment for his drug addiction and has been prescribed anti-psychotic medication in response to a diagnosis of paranoid schizophrenia.  The applicant contests that diagnosis and has indicated an intention to seek further medical opinion.  The applicant has also contracted the Hepatitis C virus but, at least prior to the hearing, had not sought continuing treatment for that condition.

8                     On 17 November 2001 the applicant was served with a notice of intention to cancel his visa under s 501(2).  A second notice, in identical terms, was served on 17 December 2001.  Each notice specified the grounds upon which that cancellation was being considered.  (At the time, the applicant had only been sentenced to one term of imprisonment exceeding 12 months; the other two sentences were imposed later.)  Enclosed with each notice was a copy of the Minister’s Direction No 21 (issued under s 499) which set out factors the Minister would take into account in making a decision under s 501.  Each notice indicated that the Minister would have regard to the contents of Direction No 21.  The notices advised the applicant that he would be given the opportunity to comment on the proposed cancellation of his visa and indicated that he should read the contents of Direction No 21 carefully and address each topic that he felt applied to him or was relevant to his circumstances, as well as providing other information he felt the Minister ought to be aware of and should take into account in considering the matter.  

9                     On 29 October 2002 Mr James wrote to the applicant to reiterate that the applicant had an opportunity to comment on the proposed cancellation of his visa.  This letter advised that it was intended to interview the applicant in December 2002.  A further copy of Direction No 21 was enclosed with the letter.

10                  The applicant sent a handwritten letter dated 1 November 2002 to Mr James.  It runs to six pages.  It was written while the applicant was serving his second sentence of 12 months imprisonment.  In his letter the applicant addressed a range of topics.  He explained that his delay in writing was due to his fear of the consequences of the cancellation of his visa.  He explained his past criminal conduct and drug use and expressed remorse for his actions and regret for their consequences.  He described his present state of health and medical treatment.  He referred to his relationship with his father and indicated that it offered some positive prospects.  He said that upon his release he would be closely monitored by the parole board, by his father and by medical officers.  Finally he indicated a wish to “see somebody from Immigration soon.  To help explain a bit more about my situation and if so what may be decided if known. … to be given a further opportunity to explain & express myself to be heard in person.”

11                  On 18 February 2003 the applicant was interviewed by Mr James at the Melbourne Assessment Prison.  The interview was conducted by reference to a standard set of questions ranging over most matters that might be relevant to a decision to cancel a visa on character grounds.  It will be necessary to return to this interview later.

12                  On 21 March 2003 the applicant’s father, Mr Alija Zekiroski, was interviewed by Mr James.  The interview covered largely the matters already mentioned.  Mr Zekiroski also expressed his views about the applicant’s relationships with various members of his family and about the applicant’s present situation and future intentions and prospects.  It will also be necessary to return to this interview.

13                  On 6 August 2003 Mr James interviewed the applicant in relation to his most recent offences:  that is, those for which he was sentenced on 22 May 2003.  During the interview there was a discussion about the applicant’s medical treatment and other matters, including the possibility that the applicant might after his release work for his father as a removalist.  The interview notes record that the applicant “knew that this immigration matter was the most important issue in his life – if the scales tip against him and he has to go back, his life will be over”.  At the end of the interview Mr James asked the applicant if there was anything else he wished to say, to which the applicant responded that there was not.

14                  The applicant relied upon a number of grounds to challenge the Minister’s decision.  The first ground was that the Minister had failed to have regard to a relevant consideration, namely that the applicant was a stateless person and could not be deported to any country.  The basis of this argument was that the applicant was born a Yugoslavian and that following the disintegration of the former state of Yugoslavia and the formation of the new state of Macedonia, the applicant had not been granted citizenship of that country.  Consequently, so the argument went, the Convention relating to the Status of Stateless Persons (opened for signature 28 September 1954, ATS 1974 No 20, entered into force generally 6 June 1960 and for Australia 13 March 1974; “Stateless Persons Convention”) applied to him.  Article 31 of the Convention imposes an obligation upon each contracting state not to expel a stateless person lawfully in its territory “save on grounds of national security or public order”.

15                  The applicant was given the opportunity of adducing evidence to show that he was a stateless person.  That opportunity was not taken up.  On the other hand, there is evidence that the applicant is Macedonian.  A letter from the Charge D’Affaires of the Embassy of the Republic of Macedonia to Mr James states:  “I take this opportunity to inform you that I have the confirmation by the Ministry of Interior that Mr Sejkan Zekirovski [sic] is a Macedonian citizen and we’ll issue a travel document for him to enter Republic of Macedonia.”  There being no other evidence on this topic, it is simply not possible to conclude the Minister failed to consider as a relevant consideration that the applicant was a stateless person.  It seems, and it would have appeared this way to the Minister, that the applicant is Macedonian.

16                  The second ground was that the Minister failed to consider that the applicant is of gypsy ethnicity, and would face hardship on that account upon his return to Macedonia.  To support this ground the applicant relied principally on evidence given by his father.  Mr Zekiroski asserted that during his interview with Mr James on 21 March 2003, he told Mr James that the applicant was a gypsy, and that gypsies in Macedonia were subject to systematic discrimination and social disadvantage.  Mr Zekiroski also said that on about 31 October 2003 he had mentioned the fact of the applicant’s gypsy ethnicity to Mr James during a telephone conversation.  The applicant also contended that reliable information (a United States Department of State Country Report on Human Rights Practices), which specified in considerable detail the hardship faced by gypsies in Macedonia, had been available to the Minister.  There is no indication in the Minister’s reasons for decision that he had taken this matter into account.

17                  In his affidavit Mr Zekiroski asserted that during his interview with Mr James in March 2003 he:

“[I]nformed [Mr James] … that we are Gypsies and we are identified as Gypsies from our appearance and the fact that we have distinct behavior [sic] such as burial rituals, and also that we are distinct from other Muslims in Yugoslavia such as Bosnians and Albanians and Turks. I explained to him that we Gypsies were treated like second class citizens throughout Yugoslavia, and that the Macedonian government does not like Gypsy people. I explained that my father, who was looking after Steven before he came to Australia, had to do odd jobs like wood cutting but also had to beg in order to survive.

18                  Mr James filed an affidavit in which he said that in his interview with the applicant’s father no mention was made of the applicant’s gypsy ethnicity.  He produced his file notes of his interview with Mr Zekiroski and of a number of other subsequent conversations between them.  The notes made no reference to the applicant’s gypsy ethnicity until October 2003.  This was the basis of a submission on the issue that it was not raised by Mr Zekiroski during the interview. 

19                  Mr James’ record of the 21 March 2003 interview begins as follows:

“Mr Alija Zekiroski was interviewed today at 1:00 PM. He has recently moved to a new address…

His son’s history was discussed. When Steven was 2 years’ old his mother ran off with another man. She came back, but left again about a year later. In 1981 Alija migrated to Australia, leaving Steven in the care of the grandparents. In 1984, when Steven was 9, the father brought him out to Australia because the grandparents were no longer able to care for him. Steven was a happy boy and happy to be in Australia. They lived in Newtown and then in Redfern. …”

The file note then goes on to describe the applicant’s life in Australia from the time he was aged eleven until the present.  It focuses on the applicant’s criminal history and drug habits, and recounts, from Mr Zekiroski’s perspective, how the applicant came to behave in that manner.  In the final paragraphs the file note returns to the fact that the applicant has not had contact with his mother, and that he wished to visit his mother in Macedonia but that the mother has no interest in contact.  The note then describes the present state of the applicant’s family relationships within Australia.

20                  Mr Zekiroski was advised of the cancellation of his son’s visa on 23 September 2003. According to Mr James, he then spoke with Mr Zekiroski on at least four occasions.  The calls were made on 23 September (three separate conversations), 24 September (two conversations), 22 October and 31 October 2003.  He produced copies of his notes of each conversation.

21                  The following is Mr James’ record of the 23 September conversations:

“I tried to telephone Mr Alija Zekiroski yesterday but his mobile phone was not available. I called again this morning and spoke to him.

I advised him that the Minister had cancelled Steven’s visa. He was very upset – saying that he would appeal the matter through the courts and that he would write to the Prime Minister and Philip Ruddock. He would be going to Legal Aid. I provided addresses for the PM and Minister for him to write to them. I said that a copy of all the documents the Minister had access to when making his decision and advice about appeal rights were left at the prison for Steven. Alija said that he wanted his own copy – I said that we could give him a copy if he obtained Steven’s written consent. I could not advise him on an appeal – he should obtain advice on this when he sees Legal Aid.

I said that Steven had asked that we ask him whether he had a landline telephone number yet that he could give Steven (he did not) and that he reconsider picking up Steven’s bike from Camberwell. I suggested several times that he should contact Steven to discuss what had happened.

I asked where Steven had been born – he was born in Prilep. I asked about Steven’s passport – he said that he had given it to Steven and it had been lost. He did not have a birth certificate.

Mr Zekiroski was adamant that we could not send Steven back; that he had made progress and was not going to continue to break the law; that his offences were only stealing. Steven did not wish to leave Australia. I provided my contact details at his request – he will come in to see me.

Mr Zekiroski called back at 11:15AM. He said that his son was very good, a bright boy, not sick, when he came to Australia and that now he was a ‘half man’ (in his language, cannot translate exactly, but means not fully developed). Alija loves Australia and will be dying here, but Australia is responsible for what has happened to his son. He said that he would be seeing his solicitor and suing Australia for compensation for what it has done to his son. He asked me to pass this on to the Minister – I said that I would not pass on a telephone conversation to the Minister – that he should put his views in a letter to the Minister so that there would be no doubt about what he was conveying – he said that he would. I said that I would make a general note about his comments on file. Despite his upset Mr Zekiroski remained civil throughout the above conversations.”

Below the notes is a handwritten addendum:  “Mr Z called back again at 12:10 wanting Min’s telephone no – no. off Min’s website provided”.

22                  Mr James’ note of the first 24 September conversation is as follows:

“Mr Alija Zekiroski called me this morning at 10:15.

He reiterated much of his comment from yesterday.

He had spoken to many people about the decision to deport his son and there was general agreement that the decision was excessive.

He spoke in more detail about plans for Steven to work with him when he was released.

He confirmed that he would be getting the copy of the paperwork from Steven and will be seeing people in Springvale today (Legal Aid?). I said that advice about review rights was included with the paperwork.

He said that there were no relatives in FYROM who could help Steven and that he did not even speak the language. Steven’s mother Binaski had a new family and would not offer any assistance (he knows this indirectly through a relative).

He asked whether various things had been taken into account – I said that the things he was mentioning had been and reiterated that he should examine the submission that went to the Minister. He then asked whether we knew that when Steven was at home with his illness he had not recognised anyone – I said that I had not know [sic] that.

Mr Zekiroski said that he would be writing to me with information to pass onto the Minister and that he wanted today’s matters passed onto him so that he could reconsider what he had done. I said that he should raise all the matters he wished to directly in correspondence to the Minister at the address I had provided yesterday.

Mr Zekiroski was very upset but remained civil throughout the conversation.”

The note of the second conversation of 24 September is as follows:

“Mr Alija Zekiroski called again at 2:30PM. He had been thinking about problems and issues with sending his son back to FYROM. Steven’s skills in his parent tongue were very limited – he was only 9 when he came to Australia and he had been encouraged to learn English. Steven can write in English only.

I said that I was attempting to obtain a passport for Steven and that the FYROM authorities in Canberra had asked for details of parents. I asked Alija if he knew his former partner’s date of birth – he said that he didn’t. I asked him for his date of birth for the FYROM Embassy and he said that it was 26/01/1957.

Mr Zekiroski expressed concern that his son’s visa had been cancelled when he hadn’t been to court. I explained that the Minister had a power under the Migration Act to cancel visas. Mr Zekiroski did not believe that it was right to take his son’s right to be here off him after giving it to him (when he migrated).

Mr Zekiroski asked me to record the various points that he was making. I explained several times that the decision to cancel Steven’s visa was a decision of the Minister, not of the Department (which had simply presented the matter to him) and that he should write to the Minister directly with the matters he wished to raise.

I asked Mr Zekiroski whether he had visited the prison yet and obtained the paperwork concerning the matter. He said that he had gone to the prison but had been unable to see Steven – there was some technical issue concerning the prison that had prevented him from seeing him today. Attending to these matters was difficult as he still had his work to do.

Mr Zekiroski said that he would be taking the matter to Channel 7 and the radio (he had mentioned this yesterday).”

23                  Mr James received a letter from Mr Zekiroski dated 2 October.  The letter addressed the applicant’s health, including his former heroin addiction and present methadone treatment, and requested that the Department contact a doctor who had previously examined the applicant and reported upon his health, so that the Department might obtain a fuller medical report.  It indicated Mr Zekiroski’s desire for the applicant to remain in Australia to assist in Mr Zekiroski’s business.

24                  Mr James’ record of the telephone conversation of 22 October 2003 is as follows:

“Mr Alija Zekiroski called me today:

·        He asked for contact information for the Prime Minister and Health Minister, which I provided from their Parliament House websites.

·        His son was being released on 5 November – I said that we would need to confirm the details with the parole authorities.

·        Alija discussed his son’s circumstances at length, including his poor settlement prospects in Macedonia. Nobody who he had discussed the matter with thought that Steven’s visa should have been cancelled. I reiterated that the decision to cancel had been the Minister’s and there was nothing I could do. Alija said that he had worried himself sick over this matter – his weight had dropped form [sic] 87 to 67 kg. I suggested that the circumstances he was relating should be included in his correspondence to the Minister(s).

·        Alija said that he had been in contact with the Macedonian Embassy in Canberra – they had sent a request back home a few weeks ago to confirm Steven’s Macedonian citizenship but there had been no response to date. Alija did not believe that there would be a response and that Steven would have to stay here.

A few minutes later I received a call from Ester at the Adult Parole Board. Steven had asked to be paroled at his hearing – they had agreed and set a 5 November parole date to allow us time to make whatever arrangements we needed to.”

25                  The final file note produced by Mr James was made on 31 October 2003:

“Mr Alija Zekiroski has telephoned me several times this week to discuss the cancellation of his son’s visa. He has been becoming extremely distressed and, more recently, blaming of me for the outcome. He spoke to the FYROM Embassy earlier in the week – he says that they told him that I had requested a passport and that I was “the key” to the decision being changed. I explained that it was my job to get a passport for Steven as the Minister had cancelled his visa.

I have spent time whenever Mr Zekiroski has called explaining the process and reiterating that he needs to deal with their Legal Aid solicitor as any additional issues he wishes taken into consideration should be brought up at the Federal Court hearing in December – that I could not reopen the matter.

Today Mr Zekiroski called and asked me whether I recalled that they were Muslim Gipsies – he had been studying the submission and could not find it. I said that I knew that Steven was Muslim, but not that they were Gipsy. He said that I had asked him about Steven’s mother’s nationality, about her religion and that he had told me. I said that I would not have asked about the mother’s religion, but I may have asked about her nationality or citizenship and whereabouts. I said that he may well have said to me that they were Muslim Gipsies, but I cannot remember him saying that. He thought that this was relevant because Muslim Gipsies are very poor and it would affect Steven’s ability to survive there – he could die if we sent him back and it would be my fault. (Emphasis added)

Over the next few minutes Mr Zekiroski became increasingly agitated. He blamed me for his son’s visa cancellation, he would be putting ads in the paper every week with my name on them, he would be going to Channel 9, the fact that he does not have money will not prevent him from bringing this matter to the public’s attention, and I will loose [sic] my job as a result. Mr Zekiroski continued to reiterate these points. I appreciated that Mr Zekiroski was upset, however, he continued to become more agitated. I stated that I could not continue the conversation if he continued as he was. A few seconds later I said that I was sorry, but I could not continue the discussion any more and hung up.”

26                  In his affidavit Mr James said that:

“Given that my role as a case officer with the Department requires me to consult frequently with a wide range of persons and to regularly prepare submissions summarising how various interests may be affected by a decision to refuse or cancel an individual’s visa, my practice is to make filenotes of conversations and interviews I have with individuals.

In respect of telephone conversations and interviews where there is no proforma record of interview, my practice is to prepare a typewritten filenote as soon as practicable after the conversation which records:

a.      the relevant Departmental file number;

b.      the date of the conversation or interview;

c.       the identity of the person/s telephoned or interviewed;

d.      a detailed record of the conversation; and

e.       date on which the filenote was made.

When I am preparing a filenote I attempt to record substantive comments made by the person with whom I am speaking in detail. …”

27                  It is apparent from the several notes that Mr James did not record every detail of every assertion made by Mr Zekiroski during their conversations.  Rather, the detail of the notes varies as between different conversations.  The note of the second conversation on 24 September appears to be quite detailed.  But in the other cases, the notes merely summarise the points made by Mr Zekiroski.  The note of 31 October exemplifies the variance in detail that can be seen.  It records in considerable detail Mr Zekiroski’s discussion of the applicant’s gypsy ethnicity and the possible consequences of that fact should the applicant be returned to Macedonia.  But before dealing with that point, the note merely sums up a number of conversations that occurred earlier that week.

28                  The notes reveal that what Mr James recorded in detail depended upon his perception of the significance of the point being made.  Thus the notes focus on issues such as the applicant’s criminal history and drug habits, his state of health, his employment prospects and his family relationships.  There are repeated references to his inability to speak Macedonian and his lack of family ties in Macedonia.  For the most part, the matters that have been raised and addressed in the notes are matters of immediate and personal significance to the applicant.  There is scarce discussion of the state in which the applicant and his family had lived in Macedonia prior to the applicant’s migration to Australia.

29                  The factual question I must answer (whether Mr James was told that the applicant feared mistreatment on account of him being a gypsy) depends – perhaps primarily – upon my assessment of whether Mr Zekiroski’s evidence should be accepted.  Mr Zekiroski’s cross-examination focused upon the course of his conversations and other activities during the period September to October 2003.  Some time was taken discussing the pattern of telephone conversations prior to 31 October 2003.  Counsel for the Minister generally sought to establish that Mr Zekiroski’s memory of those events was confused.  To the extent that the details of those events have any significance, he succeeded.  The reliability of Mr Zekiroski’s evidence in relation to those details affects the reliability of his evidence in relation to the interview of 21 March 2003.

30                  Regarding the significant conversation of 31 October, the following exchanges took place between the cross-examiner and Mr Zekiroski:

“Q: Did you blame Mr James for the outcome of the decision?---A: Yes, I blame him, because on the interview, when he says the file, he did not mention about the ethnicity which we talk about on the – and some other things.

Q: We’ll come to that. That was the phone call on 31 October?---A: Yes.

Q: Which is during this week. Now, can I just read you something, and you can tell me whether or not you agree with this. This is from a note that Mr James took of that conversation. ‘Today, Mr Zekiroski’ – that’s yourself – ‘called and asked me whether I recalled that they were Muslim gipsies. He had been studying the submission and could not find it. I said’ – that’s Mr James – ‘I said that I knew that Steven was Muslim but not that they were gipsy. He said that I had asked him about Steven’s mother’s nationality, about her religion and that he had told me. I said’ – this is Mr James still speaking – ‘I said that I would not have asked about the mother’s religion, but I may have asked about her nationality or citizenship and whereabouts. I said that he may well have said to me that they were Muslim gipsies, but I cannot remember him saying that.’ Now, do you agree with that note of your conversation?---A: He remember everything. I told him everything that we are gipsy. On the telephone he was agree that even I said to him, ‘Thank you very much that you accepting that we are gipsy,’ and as well I told you on the interview, very clearly, when he was interview me, because he approach me in two, three, could be four different occasion of, like, he said – can I talk about the interview, please? …

Q: But what I’m saying is, in that conversation, do you agree, particularly with the sentence that Mr James says that you may well have said to him that they were Muslim gipsies, but he cannot remember you saying that. do you agree with that sentence?---A: No, he accepted that we are gipsy. He knew on the conversation - - -

Q: Well, I’m asking a different question, not whether you are gipsy, not whether he accepted that but that he could not remember you saying in the interview that you were gipsy?---A: You said that after – he change it. First he said that – first he accepted, and then we talk for about five minutes, then he twisted again and he said, ‘May I said that. I can’t remember.’ I said to him, ‘Why you are twisting it? First you accepting it and then you pull back.’ …

Q: So you’re suggesting that he said that he remembered you saying it and then he twisted it and said that he couldn’t remember it?---A: No, he said, ‘May I said that, might.’

Q: You might have said that. So all he said in this conversation, he said that you might have said at the interview?---A: Yes, and then he said, ‘I couldn’t remember’. …

Judge: Did he agree – when you said that your son is a gipsy and you told him, did he say ‘Yes, you did tell me’ or did he say ‘You might have told me’?---A: He said, ‘Yes, you did tell me’.

Judge: I thought earlier you said he said ‘You might have told me’?---A: That was after the interview when - - - …”

For some time much the same set of exchanges were repeated.  Then, toward the end of the cross-examination, the following was said:

“Q: I suggest, Mr Zekiroski, that you might think that you mentioned this in the interview but you can't really be sure?---A: I told him positive.

Q: But you don't have any notes to help you recollect what you said in the interview?---A: No, I don't have any notes but I'm a normal person, which I can remember very well, I told him - I mention to him, even in three, four occasions, he was approach me like ‘His mother, what nationality she is?’  He thought maybe she is a Macedonian.  I told him she is a gipsy.  He said, ‘How about your background, where are from your father?’ which is that he passed away a long time ago and I've never seen him - I mean, my grandmother from my father, I said ‘Yes, they are gipsy.’  And he approached me as well, ‘Is your sister in here is she married to a Macedonian man?’ and I said, ‘No, she is married to the gipsy’.  So he approached me on different occasions and I told him we are a gipsy family, he knew it very well.

Q: How many times did he approach you?---A: About three, four times. …

Q: It's possible that you mentioned all of those things that you talk about, the nationality of Steven's mother, your family composition, your background in Macedonia but you didn't mention that you were gipsies?---A: I did mention many times and he knew very, very well, and I told him - I'm laughing because it is funny, it is funny he did not put it, he knew very well.  I told him that we are the gipsy people there.  The Macedonian government when they have a job somebody to work in, they don't offer you job, so they take the white people, they racist our skin because we are more darker than them.  So I told him that I'm happy in this country, I can get a job, any job I like, so there is no racism in here or anything, if you are gipsy or whatever, whichever country you come from, in the conversation with Peter James I told him and he knew it very well this conversation.

Q: So you thought this was important to the decision?---A: It is important, it is, he didn't mention it at all.

Q: But you didn't raise it with Mr James until over a month after you learned of the decision and after you had had many phone calls with him and hadn't raised this as a problem?---A: I only raised it twice.  On the interview he knew it and then on the phone call, the last phone, when I found out that it not mentioned in here.

Q: Why didn't you raise it before then?  As soon as you got the decision, why didn't you phone him up straightaway and say, ‘There's no mention in this decision about us being gipsies’?---A: Because I didn't notice that there is no mention, and then I noticed one of the - when I was working courier work and there was a gentleman he finished his study as a solicitor and he know some solicitor in here and I told him my problem and he as well, he saw it there that there's no mention - and plus I found myself that - then when I found there Inderal is not mentioned, then I straightaway was not happy, not happy, and I cried, cried and always I cry for my son because my son is mentally ill.  At the moment he's on Machinon.  Then I raise it with Peter James.  I said, ‘Is not fair.  You did not’ - is many, many things he missing out, not only the gipsy. 

Q: That's right.  You had raised many concerns over many phone calls over that whole month.  You had spoken to him many times?---A:  Yes, I had.

Q: You'd raised many things with him?---A: Yes.

Q: You hadn't mentioned this until the last phone call on 31 October?---A: I did not mention that because I did not find anything.  When I found straightaway and straightaway I ring him, when I found out that there's not gipsy mentioned there.

Q: I suggest to you that this occurred to you after you had read the decision several times and spoken to various people it was then that you decided to raise this issue?---A: Sorry, say again, sir.

Q: When you read the decision yourself when you first got it, you did not notice that the gipsy issue was not mentioned?---A: Yes, I did not notice that.

Q: It was only a long time after that, after you had spoken to other people, that this was suggested to you?---A: I found that also through my children, my daughter, who is born in here, and the boy.  They are 14, my daughter, and the boy is 12 - Ameda and Aysit.  They found - they said, ‘Daddy, I can't see in here any gipsy,’ and then I raise that when I found out.

Q: So you didn't notice it yourself, although you were the person who mentioned it at the interview?---A: No, I didn't notice that, but after I was looking through the book, it's not there.

Q: How did your - you say your daughter raised it.  How did she know that you had mentioned this in the interview?---A: Because already I've got some - a little bit of experience of other people.  Like, I was asking - I asking a lot of solicitors and tell them, ‘What error can you find in here?’ and they told me through the phone, and as well with this gentleman where I was working.  Then I said to my daughter, ‘Can you have a look through the file?’ - and she saw the gipsies not mentioned at all.  As well, I don't know if it's mentioned in this file or not, that my father he was back in there, in my country.  I call it Yugoslavia because before was Yugoslavia, so my son come under the Yugoslavian passport and I call him Yugoslavian, I don't call him Macedonian.”

31                  In the end I am unable to accept Mr Zekiroski’s evidence.  First, his evidence was affected by his emotional state after the applicant’s visa had been cancelled.  Second, he had a poor recollection of details of the various conversations with Mr James.  Third, there is the possibility that his recollection of his discussions with Mr James may have been subconsciously fabricated by his not unnatural desire to save his son.  Despite my misgivings about Mr James’ file notes, those notes are more likely to record any potentially significant matters raised during the discussions, and in particular the interview of 21 March 2003.  In these circumstances I am not prepared to find that the issue of the applicant’s gypsy ethnicity was raised either during the 21 March interview or later, or was put before Mr James in such a way as to lead him to think it was referred to as being part of the applicant’s case.

32                  The final alleged error is that the Minister failed to accord the applicant procedural fairness in that, because the interview of 18 February 2003 was cut short due to the time constraints imposed by the prison, the applicant was denied the opportunity to put elements of his case before the Minister.

33                  The obligation to accord procedural fairness is an “underlying fundamental principle” (NABC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 138 at 142 [94] per Allsop J) controlling the making of decisions in exercise of governmental power which affect a person’s rights and interests:  see also Kioa v West (1985) 159 CLR 550.  The obligation concerns the manner in which a decision is made and, more particularly, the manner by which the person whose rights or interests are affected by the decision is made aware of the issues which fall for decision and of material adverse to him which the decision-maker proposes to take into account, and the extent of his opportunity to be heard.  The content of the obligation varies according to the statutory framework, according to the objects and nature of the power to be exercised, according to the issues involved and their consequences for the rights and interests of the person affected by the decision, and depends upon the manner in which the decision-maker approaches the questions to be determined, as well as other circumstances.

34                  It should be noted that the duty to afford a hearing is conceptually distinct from any duty to inquire into particular issues by obtaining information that is readily available and of critical importance, in respect of which see Luu v Renevier (1989) 91 ALR 39, 50; Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178-9; compare Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [31]; Azzi v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 120 FCR 48 at 71-73 [102]-[112] (overruled in part by WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277); see also WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at [34]; generally, M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3^rd ed, 2004) at 268-274.  The line between the two may blur in cases where the information it is said that the decision-maker is obliged to seek out is to be obtained from the person affected by the decision.

35                  The existence of an obligation to afford a hearing is not at issue here. In a certain sense neither is the content of the hearing rule because, as will be seen, the applicant was given ample opportunity to be heard generally, as well as extensive guidance on the issues to be considered and decided upon by the Minister.  The applicant’s argument that the Minister failed to accord him procedural fairness focuses very heavily on the interview with Mr James on 18 February 2003.  Shortly stated, the contention is that procedural fairness was denied when Mr James failed to complete the interview and to ask the applicant the questions he would have asked had he completed the interview.  The issue is whether the failure to complete the interview and to ask the remaining questions denied the applicant an opportunity to put elements of his case before the Minister, and implicitly, whether the time that was not given and the questions that were not asked could have elicited information and argument that the applicant could not have provided otherwise.

36                  Before I begin to examine the interview itself, it is necessary to emphasise again that on several occasions prior to the interview the applicant was notified that he had the opportunity to make written or oral submissions to the Department.  The notices of intention to cancel sent to the applicant on 17 November 2001 and 17 December 2001 both stated that the applicant was entitled to make such comments as he considered relevant to his circumstances. These letters enclosed a copy of the Minister’s Direction No 21 detailing the factors relevant to the exercise of the Minister’s discretion under s 501.

37                  Similarly, Mr James’ letter of 29 October 2002 encouraged the applicant to make submissions.  The applicant responded to the invitation.  In his comments the applicant expressed his wish to meet a representative of the Department to discuss his circumstances personally.  Thus it was clear that the applicant had not said all he had to say prior to the 18 February interview.  However, the question posed by the requirement of procedural fairness is not whether the applicant had said all he had to say, but whether in the circumstances he had a fair opportunity to say all he had to say.  If, when given an opportunity to be heard, a person affected by a decision voluntarily reserves his comments to be made at another time, the decision-maker is not necessarily compelled to provide a further opportunity for the case to be put.

38                  The form of the 18 February interview was dictated by the pro forma typed document headed “Interview Notes with Visa Holder for consideration of visa cancellation due to character grounds” which Mr James used to conduct the interview.  It requires specific questions to be asked and provides a space for the answer to be recorded.  The first page deals with the basic details of the interview – date, time, place, and the names of interviewee and interviewer.  Below that space is the following message:

“The visa holder is to be informed that:

a)      he/she has rendered himself/herself liable for cancellation of their visa due to their:

·        substantial criminal record; or

·        association; or

·        past and present criminal conduct; or

·        past and present general conduct; or

risk of future conduct.

b)      the purpose of this interview is to afford the interviewee an opportunity to make known any personal or other issues, that they wish to be taken into account by the Minister or delegate when considering their case.

c)      the interview will be taped and the interviewee given a duplicate copy of the interview for their records.”

I think it fair to assume that the practice the Department required of its officers was to state these matters to the interviewee, in at least so many words, at the commencement of the interview.  In the absence of evidence to the contrary, I infer that Mr James complied with this requirement. 

39                  The pro forma document is typewritten with spaces underneath each question for the applicant’s answers to be recorded by hand.  The document runs to 11 pages.  There are 64 questions that the interviewing officer is to put to the interviewee.  Of these, 57 appear to have been answered by the applicant.  The interview was cut short due to time constraints imposed by the prison.  At the top of the final page of the document is a note which states:  “[Ran out of time allowed by prison].”  The questions on page 11 are unanswered.

40                  The first 16 questions are contained in a section headed ‘Personal History’.  They deal with basic personal details – name, place and date of birth, and overseas travel history.  They also address some matters concerning the interviewee’s migration to Australia: whether there were difficulties in the interviewee’s place of birth or upon their arrival in Australia, and the extent of the interviewee’s family and community connections in each country.  The final question is concerned with the interviewee’s medical history.  In answer to this question the applicant referred to three health issues; his psychiatric medication, methadone treatment and Hepatitis C infection.

41                  The next section is headed ‘Criminal History’. Question 17 requires the interviewer to put to the interviewee his criminal history and police reports, and ask for comment.  There are three pages provided for comments.  It is obviously anticipated that this will be a major element of the interview, and that the interviewee will take the opportunity to explain the circumstances of his offence, and events and conduct subsequent to his conviction to mitigate the perception of “poor character” that is the primary consideration in making a decision under s 501.  This is reinforced by questions 18 to 28 which, generally speaking, probe in detail for comment on those matters.  So, even if the applicant has not “put his case” in relation to his criminal history in answer to question 17, questions 18 to 28 each provide a distinct opportunity to do so in various respects.

42                  The third section is headed “Personal History”. It is principally concerned with the interviewee’s marital status and any children the interviewee might have.  Since the applicant is unmarried and does not have a de facto partner but merely a girlfriend (or did at the time), most of the questions were inapplicable, and Mr James indicated that fact with a “dash” in the space below each question.  The fourth section is concerned with “Family and Friends”.  The questions relate to the existence and details of the interviewee’s relatives other than any partner and children.  The fifth section concerns the interviewee’s education, employment status and professional, commercial and community activities.

43                  All the questions so far have a “matter of fact” character to them – they are not framed in such a way that the interviewee would be inclined to make his answers to those questions the basis of an argument as to why his visa should not be cancelled.  They are designed only to elicit relevant facts, albeit facts with considerable significance to the ultimate decision whether or not to cancel the interviewee’s visa.

44                  Questions 58 to 64, which were not put to the applicant during the interview of 18 February 2003, are contained in a section headed “Consequences of Visa cancellation”.  With the possible exception of the last question, they are of a markedly different character to the questions that have gone before.  The questions are as follows:

“58.    What is your reaction to your possible visa cancellation and removal from Australia? What hardship would it cause you if any?

59.      What degree of hardship would your visa cancellation and removal from Australia cause your spouse/defacto and children (if any)?

60.      What degree of hardship would your visa cancellation and removal from Australia cause your family?

61.      Is there anyone else (including business or other ties) that may be caused hardship by your removal from Australia?

62.      If you wish you may write a letter expressing your views regarding your possible visa cancellation and removal from Australia. (state whether interviewee is intending to write)

63.      Do you have any further information that you consider relevant?

64.      Have you had any previous contact with the Department of Immigration and Multicultural Affairs [sic]?”

45                  It will immediately be apparent that questions 58 through 61, which are asking for the interviewee’s opinion about possible hardship being caused by the cancellation of the interviewee’s visa, are designed to afford the interviewee an opportunity to argue his case.  The same is apparent in relation to question 63.  Before this point in the interview, the only time when this type of question is asked is in relation to the interviewee’s criminal history. The questions at the end of the interview do not touch upon that criminal history.  Question 62, which is not expressed in the form of a question, would convey to the interviewee that his opportunity to make submissions remains open after the conclusion of the interview.

46                  The applicant did not make any further written submissions to the Minister (or to Mr James). Perhaps this may have been because he was not aware that the opportunity remained available.  However, following the applicant’s further conviction in May 2003, Mr James interviewed the applicant again.  This interview took place on 8 August 2003.  Mr James’ typed note of the interview, headed “Mr Steven Zekiroski – comment on 15 May 2003 Victoria Police report”, read:

“I interviewed Mr Zekiroski shortly after 2:00 PM on 6/08/03 in relation to the 15/05/03 Victoria Police report of his most recent offences. I read out the report and asked Mr Zekiroski for his comment.

Mr Zekiroski disagreed with the report in so far as the police did not call off the chase – they were two car lengths behind him all the way. That was how they were there to apprehend him when he jumped out of the car. He had not travelled at over 100km/h as they stated (that would be impossible in the traffic conditions), he did not loose [sic] control of the car and there was no oncoming freight train as they had reported. Mr Zekiroski had expressed concern to them at the time at their failure to call off the chase and he overheard them privately discuss the matter and agree that they may be in trouble.

Mr Zekiroski said that I could get a transcript of relevant police radio communication. I said that I was not planning to do this – I had obtained a police report and was now seeking his comment on it. I asked why he had not appealed his conviction in view of his comments – he said that they dropped most of the charges – over 20 charges had been reduced to 4 as they recognised they were in the wrong re continuing the pursuit.

In relation to the sentence he received, Mr Zekiroski said that even his solicitor thought the sentence excessive. After hearing this, he agreed with the solicitor to appeal the decision but nothing happened. The period within which an appeal could be lodged has passed and he only has two months to go until he is released so he is not planning any further action.

Mr Zekiroski said that things had not gone as he had planned at his last release. He has problems and received little help from the people and agencies etc responsible for helping him. In relation to his offences, he had moved back with his father and had worked three full-time days at Corex Plastics, where he had secured employment. This was a big improvement over his life in the past – it had been years since he had worked full-time. On the fourth day he had got up and was not feeling well. He wanted to stay home but a fight erupted with his father over not going to work. He left and was going to catch a train to the city, but stole a car instead. He does not know why he stole the car – he did not need it for any reason, it was just something that he did on impulse. It is hard to explain to someone else what happens when you have a mental illness. He was not well on the day and was suffering auditory hallucinations. He had no control over what happened.

He has stayed clear of illicit drugs – he is still on methadone 60 ml – it is the same dose that he was receiving at his last interview but he is comfortable with that level for the time being. His Olanzapine (anti-psychotic drug) dosage has been increased to 30 mg. He has been seeing a psychologist in the prison. He asks for extra appointments every time he seeks him around the prison, but the psychologist is a very busy person and Steven only gets to see him about once a fortnight.

Mr Zekiroski discussed plans for working with his father along the same lines that the father had mentioned when I contacted him. He believed that the removalist work was increasing and that his father had been hiring other people to help him – when he is released Steven will do this. His father will help him work out his problems.

Mr Zekiroski said that he accepted that he had a problem. However, he was doing everything he could to address it. He asked that it be stressed that he was very unwell at the time of the offences, that he had nothing to gain by doing it, it just happened as a result of the stress. He had taken the advice he received at his last DIMIA interview very seriously and knew that this immigration matter was the most important issue in his life – if the scales tip against him and he has to go back, his life will be over.

I asked Mr Zekiroski if there was anything else he wished to submit – he said that there was not. [emphasis added]”

47                  I have previously expressed some concern about the level of detail in Mr James’ file notes.  Those comments do not affect the reliability of this particular note.  It is sufficiently detailed to resolve the issue at hand.  What is significant here is the structure of the interview, and the range of matters that were discussed.  On the basis of this note, I have reached the following conclusions.

48                  The interview progressed from the specific to the general.  The initial purpose of the interview was to receive the applicant’s comments upon his latest conviction and the circumstances immediately surrounding it.  The applicant provided those comments, and Mr James recorded them in detail.  The fifth paragraph begins to become less matter-of-fact and more argumentative in character, as the applicant explains the circumstances that, in his view, should mitigate the seriousness of his latest offence.  In the sixth and seventh paragraphs, the applicant explains wider circumstances relating to his drug and psychiatric problems, his future employment prospects and intentions to reform his behaviour.  These also have an argumentative character.  In the eighth paragraph the applicant’s comments are at their most general and argumentative: he explains how seriously he takes the matter, how significant the consequences will be for him, and how strongly the unpleasant prospect of those consequences will drive him to reform his behaviour in order to stay in Australia.

49                  As appears from the last sentence, Mr James provided the applicant with a further and final opportunity to say “anything else he wished to submit”, and the applicant declined.  Bearing in mind the gradual broadening of the topics under discussion in the preceding paragraphs, it seems clear that the final question would have been understood as limiting any comments the applicant had, of any nature and on any relevant topic.  By the conclusion of the interview, it was no longer confined to a discussion of the applicant’s most recent offences.  It had provided the applicant with another opportunity to put his case to Mr James on whatever basis he wished. If there were any deficiency in the fairness of the decision-making procedures resulting from the failure to complete the earlier interview (and there probably was), that deficiency was remedied by the opportunity afforded to the applicant during the 8 August interview.

50                  In these circumstances, I am satisfied that the applicant has not been denied any procedural fairness.  The applicant had several opportunities to put his case in an active and argumentative manner, both orally and in writing.  The applicant had several opportunities to furnish the Minister with all the facts that the applicant had knowledge of and considered relevant to the making of the Minister’s decision.  I do not consider that curtailing the 18 February interview in the end caused any injustice to the applicant.

51                  The application must be dismissed.

Associate:

Dated:              6 October 2004