FEDERAL COURT OF AUSTRALIA

 

Seyfarth v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1713

MIGRATION – judicial review – deportation order made by the Minister under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’) – the Minister’s power stated to have been exercised pursuant to s 501(6)(a) and 501(6)(c)(i) of the Act – no reasons for decision given – submission to the Minister unclear – supporting documentation to submission included information upon which the Minister could have formed a reasonable suspicion that the applicant did not pass the s 501(6) character test – not possible to draw inference that the Minister failed to take account of supporting documentation – the Minister exercised his power within jurisdiction – no jurisdictional error demonstrated – application dismissed

Constitution s 75(v)

Migration Act 1958 (Cth) s 91X, 501, 501(6)(a), 501(6)(c), 501(6)(c)(i), 501(7)(c), 501G(4), 503A

Crimes (Sentencing Procedure) Act 1999 (NSW) s 24(a)

Justices Act 1902 (NSW) s 125B(1)

Sentencing Act 1989 (NSW) s 5(4), 8

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 applied

Goldie v Commonwealth (2002) 117 FCR 566 distinguished

Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 114 considered

Howells v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 327 applied

Long v Minister for Immigration & Multicultural & Indigenous Affairs  (2003) 76 ALD 610 considered

Lorenzo v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 435 applied

Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91 considered

Minister for Immigration & Multicultural & Indigenous Affairs v W157/00A (2001) 125 FCR 433 applied

Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 cited

R v McHugh (1985) 1 NSWLR 588 cited

R v Galati [2003] NSWCCA 148 cited

R v Nykolyn [2003] NSWCCA 229 cited

Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143 cited

Te v Minister for Immigration & Ethnic Affairs (1999) 88 FCR 264 considered

Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs  [2003] FCA 1069 cited

EDWARD NICHOLAS SEYFARTH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 597 OF 2004

 

 

HELY J

22 DECEMBER 2004

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 597 OF 2004

 

BETWEEN:	EDWARD NICHOLAS SEYFARTH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	22 DECEMBER 2004
WHERE MADE:	SYDNEY

 

THE COURT ORDERS THAT:

 

1.         The application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 597 OF 2004

 

BETWEEN:	EDWARD NICHOLAS SEYFARTH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

 

JUDGE:	HELY J
DATE:	22 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1                     This is an application commenced in the High Court under s 75(v) of the Constitution, and remitted to this Court,seeking review of the personal decision of the respondent (‘the Minister’), under s 501 of the Migration Act 1958 (Cth) (‘the Act’) to cancel the applicant’s Transitional (Permanent) Visa. 

2                     The applicant was given the pseudonym ‘Applicant S494/2003’ when his application was initially lodged in the High Court.  The allocation of a pseudonym was, in this case, an unnecessary precaution, as the application is not one to which s 91X of the Act applies.  There being no prohibition on the publication of the applicant’s name, I propose henceforth to refer to the applicant, Edward Nicholas Seyfarth, as ‘Mr Seyfarth’.  Neither party opposed that course.

3                     When the matter was called on for hearing Mr Seyfarth expressed the wish that his father be allowed to speak for him.  No objection was made by the Minister, and I granted leave for Edward Darrell Seyfarth (‘Mr Seyfarth’s father’) to speak on the applicant’s behalf.

Background

4                     Mr Seyfarth is a citizen of the United Kingdom.  He first arrived in Australia on 27 April 1985 on a Visitor Visa.  He was then aged 12.  Mr Seyfarth was granted a Permanent Entry Permit on 15 July 1988, and a Resident Return Visa in 18 November 1991.  The Resident Return Visa was subsequently deemed to continue to operate as a Transitional (Permanent) Visa.

Notice of Intention to Consider Cancelling Visa

5                     On 9 January 2003 Tony Hinderry, an officer of DIMIA, wrote to Mr Seyfarth a letter headed ‘Notice of Intention to Consider Cancelling a Visa Under Subsection 501(2) of the Migration Act 1958’ (‘the Notice’).  The Notice included the following:

‘…  It has come to the attention of the Department that this visa may be liable for cancellation under section 501 of [the Act].  The relevant grounds are:

Subparagraph 501(6)(a) – Substantial criminal history

Subparagraph 501(6)(c)(i) – Past and present criminal conduct

I have attached the full text of section 501 for your information.

The Minister has advised that he will be personally making the decision whether to cancel your visa under subsection 501(2).  This will mean that should the decision be to cancel your visa, you will not be entitled to have this decision reviewed by the Administrative Appeals Tribunal (AAT).

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

·                    Protected Information as pursuant to section 503A of the Act.  A copy of the text of Section 503A of the Act is attached.

·                    The Judge’s comments in relation to a matter which appeared before the Parramatta Local Court on 20 December 2001.

·                    Your Sentence Administration Report

            This report contains a record of your offences committed during your incarceration.  A copy is attached for your information.

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

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

I have attached a standard questionnaire that you may wish to use as a guide in providing your response.  You may also wish to provide any further information in written form that you feel the Minister ought to be aware of and take into account.

If you and/or anyone who wish to provide comments and information that you feel the Minister ought to be aware of and take into account, please provide them to this office by mail or facsimile no later than 23 January 2003.

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

(emphasis in original)

6                     The Notice concluded with Mr Hinderry’s contact details ‘if you have any further questions in relation to this matter’.  The following documents were attached to the Notice:

            (a)        An extract from the Act comprising sections 501 and 503A.

            (b)        A Receipt Confirmation form for Mr Seyfarth to complete and return.

            (c)        A document entitled ‘Direction Under Section 499: Visa Refusal and Cancellation Under Section 501 of the Migration Act 1958: Direction No. 21: Direction – Visa Refusal and Cancellation Under Section 501’ (‘the Direction’).

            (d)        A blank questionnaire.  The preamble to the questionnaires states:

‘The purpose of this questionnaire is to guide you in making known your personal circumstances and anything that you wish to be taken in to account when the Minister…considers your case’

            (e)        A report dated 5 December 2002 generated by the New South Wales Department of Corrective Services and entitled ‘Convictions, Sentences and Appeals’ (the ‘Sentence Administration Report’).

7                     On 10 January 2003 DIMIA received from the Parramatta Correctional Complex (‘the PCC’) a facsimile of the signed Receipt Confirmation Form.  Mr Seyfarth had made the following annotation on the form: ‘In the process of preparing written submissions which should be ready for submitting on or before the 23rd January 2003’.

8                     On 20 January 2003 Mr Hinderry wrote to Mr Seyfarth.  The letter enclosed Pre-Sentence Reports dated 2 June 1997 and 7 November 1997, as well as more recent documents authored by Mr Seyfarth’s then current Probation and Parole Officer.  The letter advised Mr Seyfarth that he should make any comments that he wished to make in relation to the enclosed documents by 3 February 2003.

9                     On 24 January 2003 Mr Seyfarth caused a facsimile to be sent from the PCC to Mr Hinderry, in which he said:

‘Most of the package is complete [but] as it exceeds 150 pages Welfare have agreed to post the package next week.

Welfare officer have advised due to size of the package are unable to fax the package.’

[An annotation by Welfare Officer Arthur Hodges then reads:]

 

‘However if you wish to pick up package from front gate please notify me.  Inmate will give me more paper on Tuesday 28/1.’

10                  Also on 24 January 2003 Mr Seyfarth wrote to Mr Hinderry stating:

‘As per your request I herewith attach all relevant documentation for the Ministers consideration.  In respect of the additional documentation those submissions will be available to you by the said reply date.

I apologise for the exhaustive amount of information and trust all will be submitted for the Honourable Ministers consideration.

…

In respect of the documentation that is missing I will ensure the balance is faxed to you on Tuesday 27th January 2003.

Documentation to be faxed on Tuesday

Employment History

Criminal History

Attitude to cancellation

Additional Comments’

11                  Mr Seyfarth attached a table of contents and over 150 pages of material to his letter.  The DIMIA file suggests that the letter, and the attached bundle, were received on 29 January 2004.

12                  On 4 February 2003 another facsimile was sent to Mr Hinderry.  It said:

‘Tony

Am awaiting final submissions from my father which has been posted yesterday 3/2/2003 and as such will have the balance of the documentation available tomorrow by fax, further then the only outstanding issue is a fax you are to receive from the NSW Police which needs to be included for the purposes of my submissions re rehabilitation.’

13                  On 6 February 2003 a Welfare Officer at the PCC, Mr Arthur Hodges, sent a further facsimile to Mr Hinderry enclosing a three page submission handwritten by Mr Seyfarth entitled ‘Criminal History’.  The fax read:

‘Sorry those three pages late I had urgent meeting first thing this morning.’

14                  In the attached submission, Mr Seyfarth said:

‘In respect of s 501 and the interpretation of the said legislation I believe that I do have a substantial criminal history having first come into custody in 1996, then not again till 2001 and then again in 2002.  Having served an custodial sentence in my previous two instances (1996 and 2002).

I attach a list of charges of which I am presently on remand for sentence in the District Court in February 2003.

In essence the reasons for my offending relate to drug related habits, as a consequence of having to deal with the passing of two partners, Patrick in 1997 and Stephen in 2001 and a reluctance to seek help in my grief issues…

…

By remaining in Australia I can undertake to the Honourable Minister not to seek to reoffend to the point that in order to demonstrate my desire to not reoffend at some stage in the future, one is assisting the New South Wales Police in their investigations (Operation Valment – headed by the New South Wales Police Crime Agencies Major Offenders Unit – ref Detective Senior Constables Douglas Revette and Sharon Butterfield – contactable on [a phone number] should you require any assistance into the precise operation  Due to the complexities of the operation, supporting paperwork should be available to be presented to the Right Honourable Minister for Immigration in the next two weeks or so, however I understand there has been some discussions with the aforementioned and an officer of the DIMA Character Section, namely Mr Tony Hinderry, thus it is envisaged one should be conditionally discharged from custody in the next few days or so, two weeks at most. 

…

PS       Apologies for the delay however the gaol has been in lockdown for all of last week and this week I have been dealing with grief issues with Stephens second anniversary passing occurring on the 5^th February.’

15                  Mr Seyfarth’s evidence before me was that during a ‘lock down’ no mail was allowed into or out of the PCC.

The DIMIA submission

16                  On 20 February 2003 Mr Hinderry prepared a document for the Minister entitled ‘Issues for Consideration of Possible Cancellation of Transitional (Permanent) Visa Under s 501(2) of the Migration Act 1958’ (‘the DIMIA submission’).  Relevant portions of that document are reproduced hereunder:

‘PURPOSE

(1)       To seek your decisions on

·              Whether Mr Seyfarth passes the character test in s.501(6) of the Migration Act; and

·              If not, whether his visa should be cancelled pursuant to s.501(2) of the Migration Act.

…

Consideration of visa cancellation

 

Grounds

(3)       Section 501(2) of the Migration Act 1958 provides that the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s.501(2)(a)), and the person does not satisfy the Minister that he or she in fact passes the character test (s.501(2)(b)).

(4)       Under section 501(6)(a), a person does not pass the character test if he or she has a substantial criminal record within the meaning of s.501(7).

(5)       Under section 501(6)(c)(i), a person does not pass the character test if he or she is not of good character, having regard to the person’s past and present criminal conduct.

(6)       Under section 501(7)(c), a person is deemed to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more.

…

 

Reasonable Suspicion

(7)       Evidence to support the reasonable suspicion that Mr Seyfarth does not pass the character test is stated in Magistrate Carney’s summation on pages 1 and 3 to 4.  In sentencing Mr Seyfarth on 20 December 2001 in relation to his offence of Use False Instrument with Intent, Magistrate Carney states:

            “The defendant Mr Seyfarth has pleaded guilty to a number of offences, dishonesty offences, …

            … IN ALL MATTERS THE DEFENDANT IS CONVICTED.  IN RELATION TO THE FOUR MONTH SENTENCES THE DEFENDANT IS SENTENCED TO A FIXED TERM OF IMPRISONMENT FOR A PERIOD OF FOUR MONTHS …

            … TAKING INTO ACCOUNT THE TOTALITY ISSUE OF THE OFFENCES AND THEIR TYPE BEING SUMMARY MATTERS BUT NEVERTHELESS COMMITTED WHILST ON BAIL I AM OF THE VIEW ONE MONTH IS APPROPRIATE …

            … IN RELATION TO ALL OTHER MATTERS ORDERED TO ENTER INTO BONDS PURSUANT TO SECTION 9 OF THE CRIMES (SENTENCING PROCEDURE) ACT FOR A PERIOD OF TWO YEARS …”

(8)        Further evidence to support the reasonable suspicion that Mr Seyfarth does not pass the character test is noted on page 2 of Magistrate Carney’s summation:

            “… It seems from first off at Lithgow Court for a make false statement to obtain financial advantage, two counts, he received a custodial sentence.  He appealed.  The conviction was confirmed and the sentence was to commence and in lieu of the minimum term and additional term there was certain variations to that but nevertheless prison sentences were confined …”

A copy of Magistrate Carney’s comments is at Annex D.

(9)       In Mr Seyfarth’s response to the Department received 29 January 2003, he notes his current offences which consists of Obtain Money by Deception, 2 counts of Make False Instrument with Intent to Use, 7 counts of Use False Instrument with Intent to Use, Blackmail by Threat to Publish and 6 counts of Obtain Money by Deception.  Mr Seyfarth states the following in his submission;

            “… I believe that I do have a substantial criminal history having first come into custody in 1996, then not till 2001, and then again in 2002.  Having served a custodial sentence in my previous two instances (1996 and 2002).”

(10)     Further evidence that Mr Seyfarth does not pass the character test is contained in the Protected Information.

(11)     It is open for you to find that Mr Seyfarth has a substantial criminal record under section 501(7)(c).

(12)     It is open for you to find on the above facts that there is a reasonable suspicion that Mr Seyfarth does not pass the character test due to the fact that he has been sentenced to a term of imprisonment of 12 months or more.

Evidence of Grounds

A copy of the Protected Information in relation to Mr Seyfarth received on 17 December 2002 is at Annex C.

A copy of Magistrate Carney’s comments is at Annex D.

A copy of Mr Seyfarth’s response is at Annex E.

Finding Against Character Test

 

(13)     It is open for you to find that Mr Seyfarth has a substantial criminal record under s 501(7)(c) and fails the character test.’

 

17                  The ‘protected information’ at Annex C is a document supplied by the NSW Police Service to the Australian Federal Police styled ‘Criminal History – Bail Report’ (‘the Bail Report’), and which lists the offences with which Mr Seyfarth has been charged and the sentences imposed upon him.  How this information could properly be regarded as confidential (see s 503A) does not appear, but as it is irrelevant to the outcome of the present proceedings it is not appropriate for me to comment further.  I was informed by counsel for the Minister that the explanation for the inclusion of the document in the materials before me is that the NSW Police later withdrew the claim for confidentiality.

18                  Further relevant portions of the DIMIA submission are:

‘Discretion

(14)     If you are satisfied that Mr Seyfarth does not pass the character test you must consider the exercise of your discretion to decide whether Mr Seyfarth should be permitted to remain in Australia.  S.501 of the Migration Act 1958 provides you with a discretion to cancel a visa.  You have issued Directions under s.499 to guide delegates and the AAT in the exercise of that discretion.  It is clear from a number of decisions of the Federal Court that, when you decide a case personally, you are not bound by your s.499 Directions.  In making a decision on this case it is open to you to be guided by the factors set out in the Direction.  However, in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors.

(15)     Mr Seyfarth was notified by facsimile on 9 January 2003 of the intention to consider cancelling the visa held by him pursuant to s.501 of the Act.  The cancellation grounds were set out in the notice and he was invited to submit any comment that he believed relevant to the consideration of the issue of visa cancellation.

(16)     Mr Seyfarth responded to the invitation by submission received on 29 January 2003.  In Mr Seyfarth’s submission, he included the following documents: an undated letter from Mr Seyfarth outlining his criminal history and details of his personal particulars, his family and employment history; Charge Sheets from the New South Wales Service; Mr Seyfarth’s Education Profile Assessment from AEVTI; several educational certificates Mr Seyfarth obtained during his incarceration; a letter from his Alcohol and Other Drug Health Promotion Worker; a Relapse Prevention Workbook with several questionnaires and exercises completed by Mr Seyfarth; and information leaflets on the Odyssey House Detoxification program.’

19                  The undated letter from Mr Seyfarth outlining his criminal history referred to in [16] of the DIMIA submission was not included in the documents submitted by Mr Seyfarth and which were received by DIMIA on 29 January 2003.  As appears from [13] and [14] above this document was faxed to DIMIA on 6 February 2003, but notwithstanding the inaccuracies in [16] of the submission, and in the description of the documents listed in [78] of the submission (a list of the evidence or other material on which the facts and background of the information contained in the submissions were based), I find that the undated letter from Mr Seyfarth referred to in [16] of the DIMIA submission was included in the documents submitted to the Minister.

20                  Mr Hinderry sets out extracts from the Direction and comments made by Magistrate Carney when sentencing Mr Seyfarth on 20 December 2001, before continuing:

‘(21)    Mr Seyfarth’s response to the Department included his offences as stated in Charge Sheets from the New South Police Service:

Date	Court	Offence
24 October 2002	Sutherland Local Court	Obtain money by deception Make false instrument with intent to use
20 December 2002	Parramatta Local Court	Use false instrument with intent – 2 counts Make false instrument with intent Blackmail by threat to publish
6 February 2003	Parramatta Local Court	Obtain money by deception – 6 counts Use false instrument with intent – 5 counts

(22)     On the basis of Mr Seyfarth’s criminal history it is open to you to find that his conduct against the community is serious.

(23)     Mr Seyfarth’s offences are listed as very serious offences under the Direction.’

21                  The charges referred to in [21] of the DIMIA submission were described by Mr Seyfarth in his ‘criminal history’ document submitted on 6 February 2003 as being charges for which he was on remand for sentence in the District Court in February 2003 (see [14] above).

Minister’s Decision

22                  On 4 March 2003 the Minister decided to cancel Mr Seyfarth’s visa.  The decision was expressed in the following terms:

‘PART E: DECISION

[79]     I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of [the Act], (2) my Direction under s 499 of that Act and Mr Seyfarth’s comments, and have decided that:

            Please delete whichever is NOT applicable:

[(a), (b) and (c) are deleted]

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

(emphasis in original)

23                  On 8 March 2003 Mr Hinderry sent a letter to Mr Seyfarth notifying him of the Minister’s decision.  The letter included the following:

‘You provided a submission on 29 January 2003.  The submission consisted of written comments from your family and friends were carefully considered and taken into account.  The [Minister] has after exercising his discretion, decided to cancel your visa on 4 March 2003 pursuant to section 501(2) of the Act.  The particular grounds under which you do not pass the Character Test are subsections 501(6)(a) & (c) of the Act.’

(emphasis added)

24                  Mr Seyfarth acknowledged the receipt of the 8 March 2003 notification letter on 10 March 2003.

Mr Seyfarth’s criminal record

25                  A pre-sentence report prepared by a Probation Officer records that:

‘[Mr Seyfarth] in early 1993 travelled to England and worked in a travel company before he was dismissed around December 1993.  Not long after his dismissal he illegally ordered six airline tickets and was imprisoned for one year before returning to Australia in June 1995.’

The information in the pre-sentence report is said to be drawn from interviews with Mr Seyfarth, perusal of the relevant files, and a conversation with Mr Seyfarth’s stepmother.

26                  There is no reference to this matter in the body of the DIMIA submission, and counsel for the Minister did not rely upon this sentence (assuming it was imposed) for the purpose of establishing that Mr Seyfarth has a substantial criminal record.

27                  Mr Seyfarth’s criminal record in this country, according to the Bail Report, can be summarised as follows:

            [1996]  –          On 15 August 1996 he was convicted in the Lithgow Local Court on charges of make false statement to obtain financial advantage (2 counts), pass valueless cheque (16 counts) and larceny.  Various concurrent sentences of imprisonment were imposed effectively resulting in a minimum term of 9 months commencing on 15 August 1996 and an additional term of 3 months commencing on 14 May 1997.  Mr Seyfarth appealed to the Parramatta District Court against these convictions.  The convictions were confirmed by the District Court on 10 November 1997.  Whether the sentence was varied by the District Court is a controversial matter to which I shall later return.

            [2001]  –          On 20 December 2001 he was convicted at the Parramatta Local Court on a number of charges of making a false statement to obtain a financial advantage and using false instruments.  Four sentences of 4 months imprisonment were imposed (to be served concurrently) with another sentence of one month to commence on the expiration of the concurrent 4 month terms.  Mr Seyfarth was also given a 2 year good behaviour bond in relation to other similar offences dealt with at the same time.

                        –          On 3 separate occasions in 2001 he received fines for entering into enclosed lands, possessing a prohibited drug and possessing a prohibited weapon.

            [2002]  –          On 28 November 2002 he was committed for sentence by the Parramatta Local Court on a number of charges of making false instruments and having false instruments with intent to use.

Judicial review proceedings

28                  Mr Seyfarth sought review of the Minister’s decision by making an application for constitutional writs in the High Court.  On 16 February 2004 Heydon J ordered that the matter be remitted to this Court, and on 23 July 2004 the matter came before me.  At that time, Mr Seyfarth indicated that he wished to recast his application, as it had came to his attention that his original grounds had been rendered hopeless by the decision of the High Court in Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143.

29                  Mr Seyfarth filed an amended application on 30 September 2004 in which he lists a number of grounds upon which the Minister is said to have fallen into jurisdictional error.  Those grounds are:

‘(1)      The applicant was denied natural justice and/or procedural fairness in that he was not given notice of the Minister’s intention not take into account material submissions made by and on behalf of the applicant in considering exercising his discretion pursuant to Section 501(2) of the Migration Act 1958 to cancel the applicant’s Permanent Residency Visa

(2)       The visa cancellation decision was made without jurisdiction in that it was made on a erroneous assumption that the applicant failed the Character Test pursuant to Section 501(6)(a) and 501(6)(c)(1) of the Migration Act 1958.

 

(3)       The Minister denied the applicant natural justice and/or procedural fairness when he acted on the contents of a document entitled “CONSIDERATION OF LIABILITY FOR CANCELLATION OF PERMANENT RESIDENT VISA UNDER S.501(2) OF THE MIGRATION ACT” (“the issues paper”) that contained material in that was materially inaccurate and not factual, without first giving the applicant an opportunity to consider, correct and comment and on, it.

(4)       The Minister failed to comply with his duty to provide a statement of reasons for his decision as required by law under s.501G(1)(e) of the Migration Act 1958.

(5)       The visa cancellation decision was tainted by jurisdictional error in that the Minister failed to take relevant matters into consideration pursuant to Section 501(6)(c) of the Migration Act 1958. when arriving at the visa cancellation decision.

(6)       That in making the decision the Minister slavishly followed a direction made under s499 of the Act and in doing so failed to give independent consideration to the merits of the applicant’s case.  He thereby unlawfully fettered the discretion conferred on him by subs 501(2).

(7)       The visa cancellation decision made by the Respondent was made under retrospective legislation.’

(emphasis in original)

30                  The seventh ground was abandoned at the hearing.

31                  During the course of the hearing, three principal issues emerged.  It is convenient to consider those issues before reverting to the detail of individual grounds.  The three issues are:

            (1)        whether Mr Seyfarth was sentenced to a term of imprisonment for twelve months or more, on one or more occasions and if not, the legal significance of that fact;

            (2)        whether Mr Seyfarth provided further material or information to DIMIA, which was not put before the Minister or which was ignored by the Minister when he made his determination cancelling Mr Seyfarth’s visa; and

            (3)        whether a DIMIA officer, Mr Hinderry, undertook to pursue enquiries of the NSW Police in relation to assistance extended to them by Mr Seyfarth, but failed to do so.

32                  In order to deal with the first of these issues, it is necessary to set out the relevant provisions of the Act.

Relevant legislation

33                  Section 501 of the Act provides (so far as it is relevant):

‘(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

            …

            (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 …

            Otherwise, the person passes the character test.

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

…

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

34                  The statutory scheme created by s 501 requires three steps to be satisfied before a visa can be validly cancelled: first, the Minster’s jurisdiction must be activated by a ‘reasonable suspicion’ that a person does not pass the character test; second, the person must fail to satisfy the Minister that the person passes the character test, and third the Minister must exercise a discretion to cancel the visa.

Whether Mr Seyfarth was sentenced to a term of imprisonment for twelve months or more

35                  The submission to the Minister (see [16] above) appears to have proceeded on the basis that Mr Seyfarth’s four 4 month convictions in 2001 satisfy the statutory condition.  However, this is an assumption that cannot be maintained in the face of the Full Court decisions in Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91 and Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 114.

36                  The Minister also relies on Mr Seyfarth’s 1996 sentence (see [27] above) whilst formally maintaining that Hicks and Ball were wrongly decided.  That sentence was also referred to in [8] of the DIMIA submission (see [16] above) in terms which suggest that the sentence imposed by the Local Court may have been varied by the District Court Appeal.  The evidence in relation to this matter is, however, less than complete or clear.

37                  The Bail Report was included in the submissions to the Minister as Annex C – ‘Protected Information’.  The Bail Report was printed from the New South Wales Police Service computer system on 17 December 2002, and it states:

‘[In relation to the Lithgow Local Court convictions:]

Minimum term: 9 months commencing 15/08/1996 Additional term: 3 months commencing 14/5/1997 (Appealed) …

[In relation to the Parramatta District Court appeal:]

Appealed against conviction conviction confirmed : in lieu minimum term : 9 months commencing 10/11/1997 concluding 03/08/1998

Additional term : 3 months commencing 04/08/1998 concluding 3/11/1998.

[Also in relation to the Parramatta District Court appeal but recorded against different charges:]

Appeal against conviction conviction confirmed: sentence to commence 101197 ….’

38                  The Sentence Administration Report dated 5 December 2002 was also included in the submission to the Minister as Annex I.  Under the heading ‘Conviction Details’ the Sentence Administration Report records that Mr Seyfarth was sentenced in the Lithgow Local Court on 15 August 1996 to a 12 month sentence with a 9 month non parole period, and that the sentence was appealed.  The Sentence Administration Report then shows that Mr Seyfarth was sentenced in the Parramatta District Court on 10 November 1997 to an 11 month and 25 day term with a non-parole period of 8 months and 25 days.  Under the heading ‘Movement Details’, the Sentence Administration Report records that Mr Seyfarth was admitted to the Bathurst Correctional Centre on 15 August 1996, and released for ‘Bail at Court’ on 20 August 1996.

39                  The discrepancy between the term as sentenced by the Local Court and the term as sentenced by the District Court is thus explained by the six days that Mr Seyfarth had already spent in gaol between 15 and 20 August 1996.

40                  On 10 November 1997 a warrant issued for Mr Seyfarth’s committal to prison.  The warrant included the following:

‘WHEREAS EDWARD NICHOLAS FRUGTNIET SEYFARTH (d.o.b. 28/8/72)

(hereinafter called the defendant)

was on the 15^TH day of AUGUST 1996,

duly convicted before Esquire,

one of Her Majesty’s Magistrate in and for the said State for the offence(s) of MAKE FALSE STATEMENT RECKLESSLY WITH INTENT TO OBTAIN FINANCIAL ADVANTAGE (2); CHEQUE NOT MET ON PRESENTATION (16) (12/12/95, 20/12/95, 2/1/96, 21/12/95, 2/1/96)

 

and by the said conviction it was adjudged that the said defendant should be imprisoned in the said prison in the said District, and kept there to hard labour for the space of MINIMUM TERM NINE MONTHS 15/8/96 – 14/5/97, ADDITIONAL TERM THREE MONTHS 15/5/97 – 14/8/97

AND WHEREAS the said EDWARD NICHOLAS FRUGTNIET SEYFARTH gave notice of appeal to the District Court (Criminal and Special Jurisdiction) holden at PARRAMATTA in the said State, and the said appeal was duly heard before His Honour Judge HOLT QC on this 10^TH day of NOVEMBER 1997, when the said conviction was affirmed: APPEAL DISMISSED.  MAGISTRATES ORDERS CONFIRMED IN ALL RESPECTS EXCEPT IN SO FAR AS TO THE DATES.  THE SIX DAYS THE APPELLANT HAS ALREADY SPENT IN CUSTODY ARE TAKEN INTO ACCOUNT.

These are therefore to command you, the said Officer of Police, and all other Constables as aforesaid, to take the said defendant and safely to convey to the Prison aforesaid, and there to deliver EDWARD NICHOLAS FRUGTNIET SEYFARTH to the Keeper thereof, together with this Precept: and I do hereby command you, the said Keeper of the said Prison, to receive the said defendant into your custody in the said Prison, there to imprison and keep EDWARD NICHOLAS FRUGTNIET SEYFARTH to hard labour for a minimum term of imprisonment of NINE MONTHS

to commence on 10/11/97.

AND the Court specified an additional term of THREE MONTHS to commence at the end of the minimum term.

The earliest day on which the offender may be eligible to be released on parole under this order is 3/8/98.

The additional term expires on 3/11/98.’

(emphasis in original)

41                  The warrant was not before the Minister.

42                  The sentence imposed by the Local Court on 15 August 1996 was a term of imprisonment for 12 months, but as a result of the appeal, the operative sentence became that imposed by the District Court.  The question is whether that sentence was 12 months imprisonment, or, as the Sentence Administration Report suggests, imprisonment for a term of 11 months and 25 days.

43                  In order to assist in the resolution of that question the Minister originally obtained an adjournment of the proceedings with a view to getting a certificate of conviction from the New South Wales Attorney General’s Department, it then being the Minister’s position that whether a person has been sentenced to a term of imprisonment of 12 months or more is an objective fact, capable of proof in the ordinary way, and not only by reference to the materials which were before the Minister.  A certificate of conviction could not be obtained by the time the hearing resumed, nor was the District Court’s file available, although the Registrar of the District Court faxed a document described as ‘a copy of District Court Judge Holt’s results as attached dated the 10/11/97’ to the Registrar of the Federal Court.

44                  Counsel for the Minister then changed tack, and informed me that it would be his submission that the jurisdictional facts are those described in s 501(2), hence the commencing point for the enquiry is whether the Minister reasonably suspected, on the material before him, that Mr Seyfarth had been sentenced to a term of imprisonment of 12 months or more, and that a certificate of conviction would be irrelevant to that question.

45                  Nonetheless, counsel tendered the document faxed by the District Court, which I received in evidence subject to relevance.  That document, which appears to be in the nature of an associate’s record, is as follows:

‘10/11/97         CORAM:  Holt DCJ

CL:                  Mr Muddle

F/W:                Mr Cassidy

Appeals dismissed and Magistrate orders are confirmed in all respects except insofar as to the dates.

-                     In respect of 16 charges of cheque not met on presentation.  In relation to each charge convicted and sentenced to 12 months.  Min term of 9 months to commence on 10/11/97 and to expire 3/8/98 + additional term of 3 months to commence 4/9/98 and to expire on 3/11/98.  (This is taking into account 6 days the appellant has already spent in custody)

-                     In respect of 2 charges of make false statement convicted and sentenced to 12 months imprisonment.  Min term of 9 months to commenced 10/11/97 and to expire 3/8/97 and additional term of 4/8/98 and to expire 3/11/98.

-                     In respect of 1 count of larceny.  Convicted and sentenced to imprisonment for a fixed term of 6 months commencing 10/11/97 and expire 3/5/98.

-                     Order appellant to pay compensation in sum of:

                        $4429.20 to Grace Bros Ltd

                        $458.00 to Harvey Norman Ltd

                        $43.20 to Darcy Boyd Skinner

                        $189.00 Bracey Retravision

            Upon release such sums to be paid @ $100.00 per week.  Such payment to commence 10/9/98.’

46                  It is common for a Court when sentencing a person to take into account any pre-sentence custody in relation to the offence.  In some cases a Court is required by statute to do so, eg, Crimes (Sentencing Procedure) Act 1999 (NSW) s 24(a).  This may be done either by backdating the commencement of the sentence for an equivalent period, or allowing a discount on what would otherwise be the proper sentence in consequence of the pre-sentence custody: see R v McHugh (1985) 1 NSWLR 588; R v Galati [2003] NSWCCA 148; R v Nykolyn [2003] NSWCCA 229.

47                  The authorities cited above suggest that the former method is to be preferred over the latter, as it promotes the accuracy of the record, preventing there being a hidden factor affecting the length of the sentence.  Ordinarily, use of one method rather than the other will be of no practical significance, because it will not affect the length of the custody.  However, where, as here, the adoption of one method rather than the other may affect the length of the sentence imposed, it may be important to determine which method the sentencing court employed.  That is because s 501(7)(c) has as its focus the sentence imposed upon a person rather than the term of imprisonment actually served: Te v Minister for Immigration & Ethnic Affairs (1999) 88 FCR 264.  In that case, the Full Court said (at 272):

‘The language used by Parliament in s 201(c) of the Migration Act directs attention not merely to the sentence imposed on the non-citizen, but to the quality of the offence committed by him on her, reflected in the sentence imposed by the Court.  It requires the offence to one for which the non-citizen was sentenced to imprisonment for a period of not less than one year.  It focuses upon the sentence which the sentencing court has determined is the appropriate punishment for the offence …’

48                  The proceedings in the District Court were governed by the Justices Act 1902 (NSW) (since repealed) (‘the Justices Act’).  Section 125B(1) of that Act provided as follows:

‘(1)      The Court by which an appeal is determined may order that a conviction or order confirmed by it, or any part of such conviction or order, shall take effect on and from a day specified in the order, being a day that is earlier than the day on which the conviction or order is confirmed.’

49                  Thus it would have been open to Holt DCJ to have ordered that 6 days of the sentence imposed in consequence of the conviction which his Honour confirmed should take effect from 15 August 1996, and the balance of the sentence should take effect from 10 November 1997.  But his Honour did not expressly do so.  Instead his Honour purports to impose a sentence of 12 months imprisonment, comprised of a minimum term of 9 months to commence on 10/11/97 and to expire on 3/8/98 and an additional term of 3 months to commence on 4/8/98 and to expire on 3/11/98.  But the minimum term and additional term when aggregated result in a term of imprisonment which is 6 days less than a 12 month term.  Thus his Honour did not expressly adopt either of the methods referred to above, although it may be implicit in the sentence that it is in part backdated  to 15/8/1996, as it is only in that way that all of the integers can be reconciled.

50                  Counsel for the Minister directs attention to the provisions of s 5(4) of the Sentencing Act 1989 (NSW) (since repealed) (‘the Sentencing Act’)which provides that the minimum and additional terms set for an offence comprise, for the purposes of any law, the term of the sentence of the Court for the offence.  But that may imply, in the circumstances of the present case, that the sentence of the Court is 6 days less than a 12 month term, rather than the 12 months as stated.

51                  Counsel also draws attention to s 8 of the Sentencing Act, which provided:

‘(1)      When setting a minimum or fixed term, a court is required to specify the day on which the term commences or commenced and the day on which the prisoner will be eligible to be released from prison or on parole.

(2)       …

(3)       …

(4)       The purpose of this section is to require the Court to give information about the likely effect of a sentence .’

and submits that the dates which Holt DCJ incorporated into his sentence are not part of the definition of the term of imprisonment to which Mr Seyfarth was sentenced, but were incorporated pursuant to s 8 of the Sentencing Act as an explanation of the likely practical effect of the sentence imposed.

52                  I accept that submission.  On the basis of the associate’s record, I conclude that Holt DCJ sentenced  Mr Seyfarth to a term of imprisonment of 12 months comprising a minimum term of 9 months and an additional term of three months. That was the sentence which Holt DCJ determined to be the appropriate punishment for Mr Seyfarth’s crimes.  It may be that the specific dates nominated in the sentence as being the period in which the applicant was to be held in custody are erroneous, or that some further surgery was required to the language of the sentence in order to ensure that Mr Seyfarth was released on the nominated dates.  Another possible view is that the sentence was implicitly backdated in part to 15 August 1996.  But there is insufficient foundation for a conclusion that Holt DCJ ‘discounted’ what would otherwise have been a 12 month sentence to allow for the period spent in custody, particularly as the Associate’s record expressly states that Mr Seyfarth  was convicted and sentenced to 12 months.  Section 125 of the Justices Act empowered the Court hearing an appeal to confirm the sentence of the lower Court.  Holt DCJ confirmed the sentence of imprisonment imposed by the Local Court which was unequivocally one of 12 months imprisonment.

Was the Minister entitled to suspect that Mr Seyfarth did not pass the character test?

53                  Mr Seyfarth would not pass the character test if he had been sentenced to a term of imprisonment of 12 months or more (s 501(6)(a)), or if, having regard to his past and present criminal conduct, he is not of good character (s 501(6)(c)(i)).  In his ‘criminal history’ document, Mr Seyfarth accepted that he had ‘a substantial criminal history’.

54                  I agree with the submission of counsel for the Minister that whether the Minister was entitled to suspect that Mr Seyfarth did not pass the character test is to be determined by reference to the materials before the Minister.  In the record of his decision, the Minister does not state why he reasonably suspects that Mr Seyfarth does not pass the character test.  Whilst the DIMIA submission refers to, and annexes ‘evidence’ to support the conclusion that Mr Seyfarth does not pass the character test, the submission does not identify the particular facts derived from that evidence which are said to support that conclusion.  In any event, the DIMIA submission, endorsed with the Minister’s decision, is not a statement of the Minister’s reasons for the decision as required by s 501G(1) of the Act: Minister for Immigration & Multicultural & Indigenous Affairs v W157/00A (2001) 125 FCR 433; Howells v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 327, although at least in some cases it might provide the basis for an inference as to matters which the Minister took into account, or failed to take into account, in reaching his decision: Long v Minister for Immigration & Multicultural & Indigenous Affairs  (2003) 76 ALD 610.

55                  In the Notice forwarded to Mr Seyfarth on 9 January 2003, Mr Seyfarth was informed that the ‘relevant grounds’ were both substantial criminal history (s 502(6)(a)), and past and present criminal conduct (s 501(6)(c)(i)).  In the ‘template’ letter of 8 March 2003 Mr Hinderry informed Mr Seyfarth that the particular grounds on which he did not pass the character test are subsections 501(6)(a) and (c) of the Act, although this may be another error arising from the failure on the part of Mr Hinderry to adjust the template to the circumstances of the particular case.  I do not accept the statement in this letter as proof that the Minister relied on both subsections.

56                  The section of the DIMIA submission headed ‘Grounds’ refers to both ss 501(6)(a) and 501(6)(c)(i), although in the section of the DIMIA submission headed ‘Reasonable suspicion’, when describing the findings which it is open to the Minister to make, only s 501(7)(c) and thus inferentially, only s 501(6)(a) is referred to.  There is, however, no reason why the Minister should confine his attention to s 501(6)(a) to the exclusion of s 501(6)(c)(i) as each subsection is concerned with a person’s criminal conduct.  The two subsections go naturally together as a particular set of facts may fall within either or both.

57                  If the Minister did base his decision on s 501(6)(a) alone, for jurisdictional error to be found, Mr Seyfarth would need to establish that on the materials before the Minister, it was not open to him reasonably to suspect that Mr Seyfarth had been sentenced to a term of imprisonment of 12 months or more.  For the reasons already given, it was not open to the Minister to reach that conclusion on the basis of the concurrent sentences imposed in 2001, but the Minister also had before him materials in relation to the sentences imposed on Mr Seyfarth  in 1996/1997.  If it was open to the Minister to form the requisite suspicion on the basis of those materials, then jurisdictional error is not established.

58                  The material before the Minister on this question consisted of the Bail Report and the Sentence Administration Report.  There is at least a superficial inconsistency between the two reports, as the former records that on 10 November 1997 Mr Seyfarth was sentenced to a minimum term of 9 months and an additional term of 3 months, whereas the latter identifies the ‘term’ as ’11m 25d’.

59                  It was the Bail Report which was put before the Minister in the DIMIA submission as evidencing Mr Seyfarth’s criminal record.  The Sentence Administration Report provided by the Department of Corrective Services was put forward in that submission as describing (as in part it does) offences committed whilst Mr Seyfarth was in custody.  The Sentence Administration Report may be an accurate report of the term which Mr Seyfarth was required to spend in prison in consequence of the sentence imposed on him, but nonetheless may not accurately record that sentence.  The Bail Report and the Sentence Administration Report are not necessarily in conflict.

60                  There was thus material before the Minister capable of grounding a reasonable suspicion that Mr Seyfarth was sentenced to a term of imprisonment of 12 months.  The fact that there was other material before the Minister which, if taken at face value, may suggest otherwise, is not sufficient to establish the requisite jurisdictional error.  This case is to be distinguished from Goldie v Commonwealth (2002) 117 FCR 566 because the reports are not necessarily conflicting and because if further enquiry had been made in relation to the 1996 sentence, it would have emerged that the term of imprisonment was in fact 12 months.

61                  I also do not think that I would be justified in inferring, purely on the basis of the DIMIA submission, that the Minister based his decision only upon the ground specified in s 501(6)(a).  Whilst the submission points the Minister in that direction, s 501(6)(c)(i) is also mentioned, and it cannot be assumed that the Minister confined himself to the direction which was pointed out to him in the DIMIA submission.  There was material before the Minister on which it was open to him to find that the ground in s 501(6)(c)(i) was made out.  Even if the Minister’s decision was based only on the s 501(6)(a) ground, there was material before him on which it was open to find that this ground was made out.  Either way, jurisdictional error has not been established.

Material said to have been disregarded by the Minister

62                  In his submissions in this Court filed on 24 November 2004, Mr Seyfarth states that he relies upon the following ground:

‘The applicant was denied natural justice … in that he was not given notice of the Minister’s intention to consider exercising his discretion … in not taking into account the submissions of the applicant’s family and friends and in particular the submission of his father and also that of the Detectives Revett and Sharon Butterfield.’

(emphasis in original)

63                  The words following ‘in not taking into account’ represent a particularisation of a more general ground claimed by Mr Seyfarth in an amended application filed on 30 September 2004.  In the amended application, the words following ‘in not taking into account’ were ‘material submissions’.  The ground, as particularised, makes a claim in relation to two types of further material: submissions of family and friends, and submissions of police officers.  I will deal with each in turn.

Submissions from Mr Seyfarth’s family and friends

64                  The 24 November 2004 submissions expand upon the stated ground:

‘… [A] material submission made by the Applicant’s father on behalf of the Applicant would appear to have not been taken into consideration …

… [T]here is an indication that indeed the Minister was presented with the Applicant’s father’s submission on behalf of the Applicant … [This is a reference to the letter reproduced at [23] above]

… [I]t is evident that material of great significance that was favourable to the Applicant … [was] omitted causing great unfairness and injustice.  In particular the Applicant draws the Court’s attention to two issues of significance … that were clearly omitted from the material placed before the Minister …

The first issue was the failure to present the submission of the Applicant’s father on behalf of the applicant to the Minister for his consideration.  It is clear from the material provided to this Court and the Applicant that the submission made by the Applicant’s father on behalf of the Applicant was never placed before the Minister …

[The ‘second issue’ is reproduced below under the heading ‘Evidence by police officers’]

(emphasis in original)

65                  On 2 December 2004, when the matter first came on for hearing, Mr Seyfarth gave evidence that had he sent DIMIA submissions from his sister, aunt and grandfather, as well as two submissions from his father (‘the further submissions’).  Mr Seyfarth said that he conveyed the further submissions in two batches: the first, being the submissions by his sister, and grandfather, as well as his father’s initial submission, formed part of the bundle which he sent on 24 January 2003, and which was received by DIMIA on 29 January 2003.  The second batch, which consisted of his father’s final submission, he forwarded to DIMIA ‘two or three days’ after the 4 February 2003 fax reproduced at [12] above.

66                  There are a number of problems with Mr Seyfarth’s evidence on this matter.

67                  First, there is no evidence that the further submissions were ever received by DIMIA or have ever formed part of DIMIA’s files.  On 26 November 2004 Dale Watson, the solicitor with carriage of this matter on behalf of the respondent, swore an affidavit in these proceedings, in which she states:

‘I note that the applicant has stated in his submission to this Court … that there was a failure to present a submission by his father to the respondent.  I have perused the files which contain all the materials received by the Department in relation to this cancellation decision and have not seen a submission by the applicant’s father.’

68                  Ms Watson gave oral evidence to the effect that she was certain that the only mention in the DIMIA files of submissions made by Mr Seyfarth’s family was the reference to ‘final submission from my father’ in the fax reproduced at [12] above.  She also gave evidence that she had received three files in relation to Mr Seyfarth from DIMIA, and that she had received the third file after requesting that DIMIA ensure that she was given all the files.  When cross-examined, she denied that it was possible that DIMIA might have further files.  Mr Udall, a legal officer employed by DIMIA, gave evidence that he has sighted the original files maintained by DIMIA, none of which contain submissions prepared by Mr Seyfarth or his father, or comments from other family and friends.  He confirmed that copies of these files were supplied by DIMIA to the Australian Government Solicitor.

69                  Mr Hinderry has also sworn an affidavit in these proceedings.  In it, he makes three main points.  Two of those points are relevant here (the third is reproduced below under the hearing ‘Evidence by police officers’):

            (1)        He does not recall receiving either the first or second batch of Mr Seyfarth’s further submissions, but he states that any such material would have been placed on the client file and attached to the papers forwarded to the Minister; and

      (2)        The reference in the Notification letter (see [23] above) to ‘written comments from your family and friends [which] were carefully considered and taken into account’ was:

                        ‘[A]n error on my part in not modifying the template document to reflect that no such submissions had been received.  If such submissions had been received by me they would have been placed on the client files in relation to the applicant which I had custody of and would have been attached to the issues paper to the Minister.’

70                  Second, the documents filed by Mr Seyfarth in the High Court appear to contradict his claim.  An affidavit sworn by Mr Seyfarth on 5 September 2003 and filed on 30 September 2003 states:

‘9.        That the decision was made in breach of the rules of natural justice in that the Minister failed to inform and obtain the views of my family as to what impact the cancellation of my visa would not only have on the myself but also on my family by the Minister’s decision to cancel my visa.

            (a)        That in the original notice of “liability of cancellation of visa” dated the 9^th January sent to me by the Department of Immigration and Multicultural and Indigenous Affairs I was invited to make submissions nominating family, friends or others who I wished to make comment upon my “liability to cancellation of my visa”.  That the applicant so did nominating members of his family and friends.

            (b)        That in the final notice dated the 8^th March from the Department of Immigration and Multicultural and Indigenous Affairs informing me that my visa had been cancelled that I was informed in the second paragraph “You provided submission on 29^th January 2003.  The submission consisted of written comments from your family and friends were carefully considered and taken into account …”

·        In actual fact there were no submissions from either the Applicant’s family or friends nor was the Applicant’s family or friends ever contacted.’

(emphasis in original)

71                  A further High Court document filed by Mr Seyfarth on 18 September 2003 was entitled ‘Order’ (in truth a draft order nisi).  That document states:

‘… The respondents DO SHOW CAUSE … WHY A WRIT OF CERTIORARI should not be issued …  upon the grounds that:

… That the decision was made in breach of the rules of natural justice in that the Respondent failed to inform and obtain the views of my – father, mother, brothers and sister as to what impact myself or my family would endure if the Respondent decided to cancel the [sic] my visa.’

(emphasis in original)

72                  Mr Seyfarth and his father endeavoured to explain these documents by saying that the phrases ‘failure to contact’ and ‘there were no submissions’ should be interpreted to mean ‘failure to obtain follow-up submissions or views’.  They were of the opinion that this becomes clear if the phrases are ‘taken in context’. 

73                  Third, Mr Seyfarth was unable to explain clearly the sequence of events by which he conveyed the further submissions to DIMIA.  In evidence-in-chief Mr Seyfarth said that he gave the further submissions to a welfare officer at the PCC for communication to DIMIA.  When asked to name the officer to whom he passed the further submissions, Mr Seyfarth said that he could not remember, but that it must have been one of the two welfare officers handling his case: either Arthur Hodge or Thomas Ng.  Mr Seyfarth gave evidence that he did not keep a copy of the further submissions, but instead gave all his copies to the welfare officer.  The welfare officers were called to give evidence, and neither could recall any information supplied to them by Mr Seyfarth for transmission to DIMIA which was not transmitted to DIMIA.  I accept the evidence of these officers.

74                  Mr Seyfarth’s father was similarly vague.  He said that he sent a ‘tentative submission’ of ‘about five or six pages’ to his son at the PCC ‘some time in January’.  He followed the tentative submission with a 28 page ‘full submission’ that he also sent to his son at the PCC, this time in ‘early February’.  He then said that it was only in recent times that he ‘discovered that in fact none of my submissions had been placed before the Minister’.

75                  Fourth, Mr Seyfarth was unable to explain why there is no mention of the further submissions in a table of contents included with his 24 January 2003 submissions (see [11] above).  Initially, he said that the omission was because the index was intended to follow the template of the questionnaire included with the Notice (see [6(d)] above).  Later, he claimed that the table of contents was intended to list everything from himself, but not material from third parties.  Mr Johnson asked the following series of questions in relation to this second contention:

‘There are a lot of things listed [on the table of contents] which you did not create, that’s true isn’t it? --- Right…

[O]nce again I suggest to you, the absence from this list of contents … of any description of any statement of your father or an aunt or a sister is an indication that no such statement was sent with this material, that's true isn't it? --- No, I disagree because the notice of intention to consider and the section 501 I was in possession of those documents and what I merely did was I actually gave them back to Immigration as part of my entire submission, everything purely about me from me.  Anything that was written by a third party, okay, in my mind I treated as a separate entity that I was just merely forwarded to Immigration through Welfare on behalf of the parties' behalf.

You were listing the things that you were forwarding whether they were provided or written by third parties or not, weren't you? --- No, I was listing everything that I was providing by me.’

76                  Fifth, Mr Seyfarth was unable to explain why his submissions filed in this Court omitted to mention submissions by family members and a second set of submissions by his father, except to state that his father had prepared the submissions on his behalf.  Mr Seyfarth’s father gave the following evidence on this issue:

‘… I discussed it with other members of the family and other people and the answer was … the court is going to say, I mean, so who are you, you're just the father … [So I thought] if the court is not even going to worry about my submission, why would they want to hear about you know other members of the family who are a little bit more distance away from the applicant.  So I didn't really.  That's why I just concentrated just on my mine and just left mine there.’

77                  Sixth, there is the lack of documentation in the evidence in relation to the second batch of submissions, which Mr Seyfarth claimed were sent ‘two or three days’ after 4 February 2003.  By contrast, his handwritten ‘Criminal History’ submissions (see [14] above) were attached to fax which is in evidence (see [13] above).

78                  Seventh, there is the somewhat eleventh hour nature of Mr Seyfarth’s claim.  The first mention in the evidence of further submissions is in the 30 September 2004 amended application.  Further, Ms Watson gave evidence that in a telephone conversation with Mr Seyfarth’s father in August 2004 he had said that his family was surprised about the Minister’s decision because at the time the decision was made they were waiting for DIMIA to contact them.  When this conversation was put to Mr Seyfarth’s father, he denied that this showed he was in ‘quite a different state of mind from a belief that there was no need for [DIMIA] to contact you because you’d already said everything you had to say in writing’. 

79                  Notwithstanding the somewhat ambiguous nature of the evidence in relation to the telephone conversation, it is nonetheless clear that the ‘further submissions’ claim only began to be agitated some 18 months after the Minister’s decision.

80                  Eighth, there is in the absence of any copy of the further submissions in the evidence before me.  When questioned on the issue, Mr Seyfarth’s father thought that there might be a copy of one or both of his submissions on a computer hard drive in his garage, but he had not checked any of the hard drives as he had not thought it to be necessary.  Under further questioning he agreed that he had known for over a week that Ms Watson had said that no copy any submission from him was on the DIMIA file, but he justified his inaction by stating that there were six computers in his garage, and that they were each in various stages of disassembly.  Finally, although he agreed that had he found the Minister’s decision to be surprising given what he had put in his submissions, he disagreed that that was a sufficient reason for him to determine whether he had a copy of his submissions.  Ultimately Mr Seyfarth’s father stated from the bar table that he neither had a copy of the submissions nor was he able to obtain a copy from the hard drives.  This statement was accepted by counsel for the Minister.

81                  Ninth, and finally, neither the sister, aunt or grandfather was called to give evidence, nor was their absence explained.

82                  I accept that in January and February 2003 Mr Seyfarth had it in mind to include a submission from his father in his  submission to the Minister.  However, I find that no such submission was included in the package of documents which Mr Seyfarth attached to his letter of 24 January 2003.  Nor am I satisfied that any submissions from his sister, aunt or grandfather were even prepared, let alone included in that package, or later submitted to DIMIA.  The problems with Mr Seyfarth’s evidence on this matter outlined above are such that I am also unable to find that a submission from his father was later forwarded by Mr Seyfarth to DIMIA.  It is possible that one or more of these submissions were prepared, which went awry in the PCC, although I think that this is unlikely.

83                  I accept Mr Hinderry’s evidence that the reference in the notification letter to ‘written comments from your family and friends [which] were carefully considered and taken into account’ was an error on his part, as no such submissions were received by DIMIA.  It would be beyond the bounds of reason to treat that letter as an admission that such submissions were received, but not passed on to the Minister.

Evidence by police officers

84                  The 24 November 2004 submissions state:

‘The second issue relates to no material being placed before the Minister that would have shown remorse for his actions and a great willingness by the Applicant to assist the Serious Crimes Squad in a very large and lenghty [sic] operation…[T]he Applicant asked [DIMIA] to contact various detectives and even supplied [DIMIA] with their relevant telephone numbers to be contacted.  Indeed, a Mr Tony Hinderry an official of the department did briefly contact certain of the officers mentioned and was to obtain a full report as to the circumstances but failed to follow through and submit a report for the Minister’s consideration…’

(emphasis in original)

85                  Mr Seyfarth called Detective Douglas Revett, a Detective Sergeant in the New South Wales Police.  He gave evidence that Mr Seyfarth had come forward and given information about a member of a major organised crime group.  Detective Revett said that Mr Seyfarth had approached him in January 2002 for a reference, but that he had told Mr Seyfarth that he could not give him one.  However, he told Mr Seyfarth that if DIMIA contacted him he would be happy to confirm that Mr Seyfarth had provided assistance, as well as explaining the seriousness of the matters upon which he had provided assistance.  Significantly, however, Detective Revett said that he had not spoken to anyone from DIMIA, and he had not attempted to contact anyone at DIMIA.

86                  Mr Hinderry, in his affidavit, also denies the substance of Mr Seyfarth’s submission.  He says:

‘I do not recall discussing with any person that I would obtain information from the New South Wales police in relation to the applicant’s assistance in a police operation.  Furthermore, this would be contrary to my usual practice which is that I do not make enquiries and obtain information on behalf of a visa holder…’

87                  Mr Seyfarth’s fax to Mr Hinderry of 4 February 2003 implies that the NSW Police were to provide a fax to DIMIA, and is not consistent with an arrangement reached with Mr Seyfarth that Mr Hinderry would contact the police officers.  However, in the ‘criminal history’ document provided to DIMIA on 6 February 2003, Mr Seyfarth states that it was his understanding that there have been some discussions between Mr Hinderry and the police, and he provides the policemens’ phone numbers ‘should you require any assistance into the precise operation’ (see [14] above).

88                  I am not satisfied that Mr Hinderry ever told Mr Seyfarth that he would contact the NSW Police, and the evidence of both Detective Revett and Mr Hinderry is that in fact he did not do so.  Mr Seyfarth did not give any evidence of a conversation with Mr Hinderry in which Mr Hinderry agreed to contact the police, and the general tenor of the contemporaneous written communications between Mr Seyfarth and DIMIA is inconsistent with any such arrangement.  Mr Seyfarth may have had the understanding referred to in the ‘criminal history’ document, although he did not expressly say so in evidence, but if he had that understanding, it did not accord with the fact.

89                  The only detailed evidence that Mr Seyfarth gave as to his conversations with Mr Hinderry is as follows:

‘Mr Seyfarth’s father: Can you tell this court why you in your submissions refer to, the current charges you were on at the time the Minister took this decision?

Mr Seyfarth: In one of my conversations, in one of the two or three conversations I had with Tony Hinderry was that he actually said to me that if I could assist him with telling everything that I was in for both past as well as current, okay, that would be of assistance to him.’

(emphasis added)

Mr Hinderry emphatically denied ever having a telephone conversation with Mr Seyfarth because, if such a conversation occurred, DIMIA practice required a note to made of it, and there is no such note in the file.  However, Mr Ng, one of the welfare officers, confirmed that in January 2003 on one or more occasions he telephoned Mr Hinderry at Mr Seyfarth’s request and then permitted Mr Seyfarth to talk on the telephone to Mr Hinderry.  I accept Mr Ng’s evidence in this respect.  It is supported by contemporaneous diary notes.  I reject Mr Hinderry’s evidence that he did not speak by telephone with Mr Seyfarth, and I accept Mr Seyfarth’s evidence that he had one or more conversations with Mr Hinderry, even though there is no diary note by Mr Hinderry confirming this fact.

90                  However, having made these findings, it is difficult to see how this assists Mr Seyfarth’s case.  Mr Ng could not recall the substance of any of Mr Seyfarth’s conversations with Mr Hinderry, and, as I have said above, there is no reason to conclude that Mr Hinderry offered to conduct any enquiry on Mr Seyfarth’s behalf.  Indeed, when the proposition was put to Mr Hinderry, his opinion was that ‘it is not up to me to make the case for a client … The onus is on the client to put forward all their responses.’

Specific grounds of complaint

91                  I will now deal with the specific grounds set out by Mr Seyfarth in his amended application (see [29] above).

(1)        Procedural fairness – submissions from family and friends

92                  The complaint is formulated in terms that Mr Seyfarth was not notified of the Minister’s intention not to take into account relevant submissions.  I have already found that Mr Seyfarth has not established that he provided DIMIA with submissions from his father, or family, hence in this respect the ground has not been made out.

93                  During the course of the hearing, it became apparent that Mr Seyfarth was also asserting that there was a denial of natural justice by reason of the failure by DIMIA to make enquiries of the NSW Police to obtain evidence in Mr Seyfarth’s favour, or at least in failing to warn him that such enquiries would not be made.

94                  I have already found that Mr Hinderry did not undertake to make enquiries of the police on Mr Seyfarth’s behalf.  The letter from Mr Seyfarth of 4 February 2003 implied that Mr Hinderry was to receive a fax from the NSW Police, rather than that he was to initiate enquiries of the police.  There is no evidence that Mr Seyfarth refrained himself from taking steps to obtain a communication to DIMIA from the police officers because Mr Hinderry was to contact the police, and the fax of 4 February 2003 suggests otherwise.

95                  There is no general duty on a decision-maker ‘to prompt and stimulate an elaboration which the applicant chooses not to embark upon’: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 (Gummow and Heydon JJ).  There is no general obligation on the Minister to make his own enquiries particularly where the visa holder has been given the opportunity to put all that he or she may wish to put before the Minister: Lorenzo v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 435 at [45], [51] (Hill J).  A failure to make enquiries may sometimes be a breach of the rules of natural justice or render a decision unreasonable (Re Minister for Immigration & Multicultural Affairs ; Ex parte Cassim (2000) 175 ALR 209 at [12] – [14] (McHugh J)), but there is no warrant for a finding to that effect in the circumstances of the present case.

96                  This ground fails.

(2)        No jurisdiction - Mr Seyfarth did not fail s 501(6)(a) or (c)

97                  This ground fails for the reasons already given.

(3)        Natural justice – material inaccuracies in the DIMIA submission

98                  Mr Seyfarth asserts that the DIMIA submission was ‘flawed, selective, not neutral and omitted significant matters favourable to the applicant’.  He complaints that he was not given the opportunity to consider, correct and comment on the DIMIA submission.

99                  Procedural fairness does not ordinarily require a decision-maker to disclose the decision-maker’s thinking process or proposed conclusions.  Further, the DIMIA submission is an integral part of the decision making process itself, and is not to be equated with information from a third party about the applicant which is required to be disclosed to him in accordance with ordinary principles.  It will be otherwise if the submission contained materials which had not been disclosed to the applicant (subject to s 503A in relation to protected information), as opposed to the Department’s assessment of known materials on an issue which had been identified as a critical issue: Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs  [2003] FCA 1069 at [41], [48] (Hely J); Lorenzo (supra) at [47] – [48].

100               In his oral submissions, Mr Seyfarth pointed to the following inaccuracies in the DIMIA submission:

            (a)        Annex B is described as a letter received from the Department of Corrective Services on 20 February, when, on its face, it is not, although the documents appear to come from that source;

            (b)        [16] of the submission states that Mr Seyfarth’s submission received by DIMIA on 29 January 2003 included an undated letter outlining his criminal history, whereas the letter was faxed to DIMIA on 6 February 2003;

            (c)        the materials listed at [78] of the submission (see [19] above) do not include the fax of 6 February 2003, but it was in fact included with the papers given to the Minister, and passages from the fax are quoted in the DIMIA submission;

            (d)        it was put to the Minister in [7] of the DIMIA submission that the 2001 offences which resulted in four concurrent sentences of 4 months was evidence to support the reasonable suspicion that Mr Seyfarth does not pass the character test, but the Minister’s powers could not have been enlivened as a result of these convictions; and

            (e)        the submission fails to report that the 12 month sentence given by the Local Court in relation to the 1996 offences was reduced by the District Court by a period of 6 days.

101               The inaccuracies referred to in (a), (b) and (c) above are established, but they are immaterial.  As to (d), if the decisions in Hicks and Ball are good law (the decision in Hicks is the subject of an unresolved application for special leave to appeal to the High Court), then the 2001 offences would not support a conclusion that Mr Seyfarth had been sentenced to a term of imprisonment of 12 months, but, particularly when taken with other matters, could support the reasonable suspicion that Mr Seyfarth does not pass the character test in terms of s 501(6)(c)(i).  As to (e), I have found that the District Court confirmed, rather than reduced, the 12 months sentence imposed by the magistrate.

102               In his written submissions, Mr Seyfarth asserts that the DIMIA submission fails to quote parts of the decision of Carney SM which were favourable to Mr Seyfarth, or to refer to the assistance given by Mr Seyfarth to the NSW Police.  This is true, but the whole of Mr Carney’s decision was attached to the submission, as was Mr Seyfarth’s letter which referred to the assistance which he had given to the police.

(4)        Failure to state reasons

103               Section 501G(4) provides that a failure to comply with the section in relation to a decision does not affect the validity of the decision.  In Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 at [46] (Gleeson CJ, Gummow and Heydon JJ), [55] (McHugh J) and [109] (Kirby J) the High Court held that a failure to give reasons cannot of itself amount to a jurisdictional error.

104               This ground fails.

(5)        Failure to take relevant matters into consideration

105               This ground is unparticularised, and the only matter contained in the written submissions which might support it is the contention that the Minister had not read the papers attached to the DIMIA submission.  There is no evidentiary foundation for a conclusion to this effect.  My attention was not otherwise drawn to any matter made compulsorily relevant by the Act which the Minister failed to take into account.

106               This ground fails.

(6)        Unlawful fetter on statutory discretion

107               The assertion made in relation to this ground is that the Minister:

‘[S]lavishly followed a direction made under s 499 of the Act, and in doing so, failed to give independent consideration to the merits of the applicant’s case.’

108               The DIMIA submission (at [14]) states:

‘You have issued Directions under s.499 to guide delegates and the AAT in the exercise of that discretion.  It is clear from a number of decisions of the Federal Court that, when you decide a case personally, you are not bound by your s.499 Directions.  In making a decision on this case it is open to you to be guided by the factors set out in the Direction.  However, in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors.’

109               It has not been established that the Minister failed to give consideration to the merits of the applicant’s case.

Conclusion

110               The application should be dismissed with costs.

I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:              22 December 2004

	The applicant’s father appeared on the applicant’s behalf
Counsel for the Respondent:	G T Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2, 15, 17 December 2004
Date of Judgment:	22 December 2004