Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723

FEDERAL COURT OF AUSTRALIA

MIGRATION - s 501 of the Migration Act 1958 – submissions which included draft reasons for Minister – material exaggeration in draft reasons – lack of procedural fairness.

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 applied

Kioa v West (1985) 159 CLR 550 referred to

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 77 ALJR 1829; 201 ALR 327 applied

IVAN RAFAEL PEREIRA NAVARRETE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1521 of 2004

ALLSOP J

21 DECEMBER 2004

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1521 of 2004

BETWEEN:	IVAN RAFAEL PEREIRA NAVARRETE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	21 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT DECLARES:

1. that the decision of the respondent Minister made on 13 August 2004 to cancel the applicant’s visa was made in circumstances of the applicant being denied procedural fairness.

THE COURT ORDERS THAT:

1. a writ in the nature of certiorari issue to quash said decision of the respondent;

2. the respondent be restrained, herself and through her servants or agents, from dealing with the applicant on a basis other than that his visa was not validly cancelled by the above decision;

3. the applicant be released from immigration detention forthwith;

4. the respondent pay the applicant’s costs;

5. these orders not be entered prior to 3.00 p.m. today;

6. leave be granted to the respondent to relist the matter at 2.15 pm today on notice to counsel to seek any variation to these orders.

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 1521 of 2004

BETWEEN:

IVAN RAFAEL PEREIRA NAVARRETE

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE:	ALLSOP J
DATE:	21 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a 25 year old citizen of Chile. When he was eleven years of age he migrated to Australia in the company of his family. Since his arrival in 1991, apart from a two-year period from late 1993 to late 1995, which he apparently spent in Chile, he has lived in Australia under a permanent resident visa. The applicant's adolescent and adult life thus has been largely spent in Australia. He is married, though he and his wife are separated. There are three children of the marriage, two boys aged 8 and 6 and a girl aged 4.

2 The respondent Minister has cancelled the applicant's visa under section 501 of the Migration Act 1958 (Cth) (the Act) making him liable to deportation. Section 501 provides a power to the Minister to cancel a person's visa in circumstances, relevantly here, when a visa holder has been sentenced to a term of imprisonment of 12 months or more. The section is couched in terms of the passing of a "character test". (See s 501(2), (6) and (7).)

3 I have come to the conclusion that the material put to the Minister for her consideration including, in particular, draft reasons for the cancellation of the applicant's visa (which the Minister appears to have adopted as her own) was expressed in such a manner as to raise important and adverse factual matters beyond those which someone in the position of the applicant could reasonably have anticipated as likely to arise from the material that he understood to be before the Minister in the known statutory context. Another way of expressing the reason for my view is to adopt the words of the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576, 591-2 and say that the material put to the Minister for consideration contained adverse conclusions, in effect by way of Departmental recommendation, that were not obviously open on the known material in the known context of the statute and decision in question.

4 These matters of expression and adverse conclusions concerned how the Departmental officer formulated and distilled the applicant's history, circumstances and position; thus, to understand why I have come to the view that I have it is necessary to have a careful appreciation of the factual background of the applicant against which to assess the fairness of the Departmental paper to the Minister.

5 The applicant has been convicted of a number of criminal offences. On 19 May 1999, he was charged with common assault said to have been committed on 18 May 1999. On 11 June 1999, he was convicted and fined $200 in Fairfield Local Court. On 10 June 1999 he was charged with common assault said to have been committed on 9-10 June 1999. On the following day, 11 June 1999, when the first offence was disposed of, this matter was also dealt with at Fairfield Local Court. He was fined $500 on the second charge. Also on 10 June 1999, he was charged with contravening an apprehended violence order on 9-10 June 1999. This too was dealt with by the Magistrate at Fairfield Local Court on 11 June 1999. The applicant entered a recognisance of $1,000 for two years under the then s 558 of the Crimes Act 1900 (NSW). It is not difficult to infer that all these charges were related. From other material in evidence that was before the Minister it can be inferred that some if not all of these incidents were related to the applicant's marital difficulties at the time. On 26 November 2001, the applicant was charged once again with common assault said to have been committed on 26 November 2001. This time he came before Liverpool Local Court. On 17 January 2002 he was fined $400.

6 Shortly after the disposal of the fourth of these offences, the applicant committed a serious offence. On 24 January 2002, he was caught at Perth Airport with a quantity of methylamphetamine in his possession. He was charged with possession of the drug with intent to sell or supply to another. He pleaded guilty. The facts surrounding the offence to which the plea was made were stated by counsel for the Crown as follows:

The facts are: at about 6.15 am, Eastern States time, on Thursday 24 January 2002 the two offenders and one co-accused attended at the Sydney airport and purchased tickets on a Qantas flight from Sydney to Perth.

Prior to boarding the plane two of the offenders, Mohasay and Pereira, each taped two plastic bags containing between 305 and 355 grams of methylamphetemine tablets to their bodies. Pereira placed another two bags containing tablets into his hand luggage. The total weight of the tablets was later found to be 1808 grams with a purity of mehtylamphetemine of 2 per cent. Schlemmen, who was the third co-accused, was aware the other two were in possession of the tablets and travelLed with them on the Qantas flight arriving in Perth at about 9.10 am Perth time.

On their arrival the two offenders and one co-accused caught a taxi to an inner-city motel where Schlemmen paid for a motel room booked under Mohasay’s name. The three went up to their room where Mohasay and Pereira removed the packages from their bodies and other tablets packed in the hand luggage. Schelmmen removed six tablets from one of the larger packages and with Pereira left the motel room to take the six tablets to another person leaving Mohasay in control of the remaining tablets which he placed into a cupboard drawer.

At about 9.15 am – sorry at about 9.50 am detectives from the organized crime investigations stopped and searched Schlemmen and Pereira in Bennet Street, East Perth and located the six tablets. At about the same time other detectives executed a Misuse of Drugs Act search warrant on the offender’s motel room during which they located the remaining tablets in the cupboard drawer. When interviewed at the scene the two offenders and co-accused made admissions in relation to their movements and activities.

7 Further circumstances surrounding the offence were put in the applicant's counsel's address in mitigation on the plea. The transcript of the proceedings before Jackson DCJ was in evidence. (It should be noted that there is an evident typographical error in the transcript misidentifying counsel who addressed the court on behalf of the applicant.) It is unnecessary to descend into too much detail as to the explanation for the applicant’s behaviour. He was said to have been in need of money after borrowing money to begin a floor sanding business and having all the goods and equipment for the business stolen. He was said to be depressed from his marital problems. He was said not to have been an organiser of the events in question. The address by the applicant's counsel also provided some explanation for the 1999 charges. It was said that there were domestic disputes and at least one was said to have been the upshot of the applicant returning to the matrimonial home and discovering his wife in the company of someone else. Nevertheless, each of the applicant and the person in whose company he was arrested (who also pleaded guilty but who had a more serious criminal record) was sentenced to five years’ imprisonment with a declaration as to eligibility for parole and a declaration that each was a drug trafficker.

8 On 18 February 2003 the applicant, while still in Acacia Prison in Western Australia, was given a letter from an unnamed officer in the “Cancellations Section” of the Department. The letter stated as follows:

Notice of intention to consider cancelling a visa under subsection 501(2) of the Migration Act 1958.

I am writing to you to provide you with notice of intention to cancel your visa.

You travelled to Australia on 30 April 1991 as the bearer of a Category 105 visa. You are currently the holder of a visa class BB 155 Resident Return Visa. This visa is currently your sole authority to remain in Australia.

It has come to the attention of the Department that this visa may be liable to cancellation by the Minister under section 501 of the Migration Act 1958 (the Act). The relevant grounds are:

· Subparagraph 501(6)(a)

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

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

· Your substantial criminal record (See Attachment 1)

· and/or

· Your past and present criminal conduct

· Your past and present general conduct

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’.

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 or is relevant to your circumstances. You may also provide any further information, apart from those considerations listed in the Minister’s Direction, that you feel the Minister ought to be aware of and take into account.

You may wish to comment on your criminal history, a copy of which is attached to this letter.

9 Direction 21, which was provided to the applicant, was in evidence before me. The applicant sent a letter dated 7 April 2003 to the Department. It was a short, but straightforward, plea not to have his visa cancelled. It did not deal with the four New South Wales offences, but only dealt with the serious offence for which he had been incarcerated. The letter was in the following terms.

I am writing to you concerning the intentions to cancel my visa, I really don’t know where to start, but to say, for you to please except my apologies and I take full responsibility for what I’ve done. And to ask you and your colleagues to please give me another chance to prove to you what I have done was wrong and foolish of me I do come for a good and supportive family I travelled with my family to Australia on the 30/4/91. I was 12 years of age, I have a younger brother and younger sister and am currently 23 years of age and have three children.

I have always worked and supported my wife and children. I have never in been in prison before, nor committed any other crimes of any nature, in my life. In 1997 I started to marital problems during these period I stopped working and my wife and I could not solve our problems, which were starting to become serious.

In 1999 I began to work again, flooring. I managed to save some money and my father offered to help me to start my own business, which included installing floorboards and floor polishing, etc. My life was changing for the best after the year of opening my business. All of my equipment was stolen and as I was not insured I had lost thousands of dollars and without these tools I could not keep up with my orders and lost my contracts.

After this I started to stress and didn’t know what to do. I did not know why I was having such bad luck. I didn’t want to ask my family for help as they had already given me so much, and didn’t know what to do. That is when I become so depressed for help that somehow I got involved in this huge mistake. I knew what I was doing was wrong and totally against my wishes.

Since being in custody the contact I have had with my wife and children is by mail. I miss my family so much, and my wife and children have been affect by what I have done; especially my children. My two boys and little girl have never been apart from me before. They have suffered for the mistake I’ve committed yet I know that I must make it up to them and to everyone who has been affected by my actions.

I respectfully ask that I be allowed to make it up to them and try to make a better life for my children. I have strong ties with my children and as they are Australian citizens, if I am deported, it would meant that they are left without a father. I hope that you can see that they have suffered enough for my mistake and my only concern is to be with them and try to make them proud of me.

I can only repeat that I am sorry for my action that have put me in jail but also know that I am a changed man and committed to my family. I want to again become a productive member of this great country and hope, no plead, that you can see that I want what is best for my children.

As stated above, this is my first offence and hope that you can see this is a grave mistake on my part but still only my first mistake. If I am given the chance to stay in Australia and keep my visa I will not disappoint your office, my children nor my family. I hope that you will not revoke my visa and pray that you can see my honesty and deepest regret at every committing an offence.

[errors in original and emphasis added]

10 It is important to note that it was apparent that the applicant must have known that the Department knew of the New South Wales offences. It had sent him a copy of his record. Thus, his statement in the letter that he had not committed any other crimes of any nature should be understood against that background and against the background that s 501(7) was apparently concerned with a serious crime of imprisonment. His letter should also be seen against the background of the letter which was sent to him by the Department and which identified the ground of the possible cancellation as s 501(6)(a) being a substantial criminal record as defined by s 501(7). The importance of these matters will become evident in due course.

11 The letter of the applicant enclosed a handwritten reference from an Australian citizen who had known the applicant since 1998.

12 On 30 October 2003 an officer from the Cancellations Section of the Department wrote to the applicant, who was now out of prison on parole, and living, once again, in Liverpool, New South Wales. The letter stated the following.

On 18 February 2003 you were forwarded a Notice of Intention to Consider Cancelling a Visa under subsection 501(2) of the Migration Act 1958 and a copy of s 499 Direction 21, for you to consider when formulating your reply.

You replied to the notice on 10 April 2003 but failed to clearly address paragraphs 2.13 – 2.17 of Direction 21, which relate to “The best interests of the child” and “Other considerations”

I have enclosed an additional copy of the s 499 Direction 21 with the areas that require your consideration and reply, highlighted. Please address every paragraph in your reply.

In view of the time that has transpired since last writing to you, please provide any written comments and information to this office for my attention no later than the close of business at this office 30 November 2003. You may respond by mail or facsimile to the address below. If you do not respond by 30 November 2003, a decision on whether to cancel your visa will be made using information already held by the Department.

Paragraphs 2.13 to 2.17 of Direction 21 were in the following terms.

The best interests of the child

2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not primary consideration but may be considered with other considerations under paragraph 2.17.

2.14 Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interest of one child may indicate the non citizen parent should not be reused a visa or removed from Australia, but that the best interest of another child may point towards visa refusal or cancellation.

2.15 In general terms, the child’s best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child’s best interests being served by separation from the non-citizen, include, but are not limited to:

a. any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or

b. any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizens conduct.

2.16 When considering the best interests of the child, decision-makers should have regard to the following:

(a) the nature of the relationship between the child and the non-citizen;

(b) the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;

(d) whether the child is an Australian citizen or permanent resident;

(e) The likely effect that any separation from the non-citizen would have on the child;

(f) The impact of the non-citizen’s prior conduct on the child;

(g) The time (if any) that the child has spent in Australia;

(h) The circumstances of the probable receiving country; including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia.

(i) Any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and

(j) Any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.

Other Considerations

2.17 When considering the issue of visa refusal or cancellation, other matters although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but hat generally they be given less individual weight than that given the primary considerations. These other considerations may include:

(a) the extent of disruption to the non-citizen’s family business and other ties to the Australian community;

· Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:

“The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.”

Article 17.1 provides that:

“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, not to unlawful attacks on his honour and reputation.”

(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:

· in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen) decision-makers must consider the circumstances under which the relationship was established and whether ht Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;

(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australian (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some ways dependant on the non-citizen for support which cannot be provided elsewhere;

(d) family composition of the non-citizen’s family, both in Australia and overseas;

(e) the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;

(f) the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);

(g) the nature and seriousness of the offence(s) or alleged offence(s) in the context of seeking to evade an outstanding legal matter);

(h) any evidence of rehabilitation and any recent good conduct;

(i) whether the application is for a temporary visa or permanent visa;

(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and

(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.

13 By letter dated 28 November 2003 the applicant sought to deal with the suggestions concerning the best interests of the children. The letter stated as follows:

I received your letter dated 30 October 2003 confirming your Notice of Intention to consider Cancelling a Visa under subsection 501(2) of the Migration Act 1958.

I would like to confirm my previous letter dated 7 April 2003. I have changed. My time in prison was very hard for me and I would not like to be in that situation again.

I have learnt a great deal during my time in prison and now I want to work to help my htree children. I don’t want my children to say in the future that I was not a good father.

I am very sorry for the offence I committed and I believe that I already paid my debt to the Australian society with my period in prison. I want to show that I have changed and I wish to become in a good and positive member of the community. Enclosed is a copy of a letter from the Department of Corrective Services that attests to the fact that my parole is progressing well.

In relation to “The best interests of the child” and “Other considerations” I would like to express the following:

2.15

a) I have never abused or neglected my children in any way. I love my children.

b) I am sure they have not suffered any physical or emotional trauma arising from my conduct. On the contrary, I have always wanted to give them the best.

2.16

a) The nature of my relationship with my children in the natural relationship existing between parents and children. I am separated from my wife, Karen Gonzalez since 1999. Before my period in prison I was seeing my children every weekend. Regrettably, since my release from prison I have not been able to see them as before because my former wife has not allowed this.

I have now asked for Family Law Conferencing an am awaiting a date. I hope this mediation will see access to my children reinstated ( a copy of letter is attached to confirm this).

b) My relationship with my children was both full-time and permanent from their births till the break down of my marriage. As I mentioned above, before my period in prison I was seeing my children every weekend.

c) My children are:

Ivan Camilo Pereira Gonzalez 8 years old

Angel Sebastian Pereira Gonzalez 6 years old

Catalina Kelly Pereira Gonzalez 4 years old

d) My children are Australian citizens: Ivan Camilo was born in Chile. He came to Australia as a permanent resident. He became Australian citizen when his mother became citizen by grant. Angel Sebastian and Catalina Kelly were born in Australia.

e to j) Therefore, my children will remain in Australia, they will have no problems with language, education, health because their only education has been here in Australia. If I am allowed remain in Australia, I am going to give them all my love and support.

If I am forced to return to Chile, it is unlikely that I will be able to be an active part of my children’s lives. I will not have the financial means to purchase three tickets for them to visit me in Chile, now will I probably be ever granted a visa to visit Australia. This will mean that my children will grow up without the necessary influence, love and support of a father. Although I may have made a mistake I believe paid for that as I have my children please do not punish my children further for my foolish actions.

I look forward for your favourable response.

[errors in original]

14 The letter of the applicant also enclosed a letter from his mother which included the following statement.

I know my son committed an offence but I know that he is very sorry for his mistake. He suffered greatly during his time in prison because he was separated from his family, especially his two little children.

As a mother, I request that you give him another chance. Please, believe me, he is not a bad man and he is not a bad son either. He has been a good father to his children and his offence was his first offence in Australia. His period in prison was very hard for him. Currently, he is attending Psychological Therapy.

If you decided to cancel his permanent residency in Australia, it would be terrible for me. He has all his close relatives in this country (parents, brother, sisters and children). If he had to return to Chile, there, he would have no support.

If you allow him to remain in Australia, I am sure he will prove that he has changed. He would like to restart his own Floor Sanding Company. He needs to be close to his children and his family.

My family and I ask you again to forgive. Really he is very sorry. I am sure it will not happen again!

By my faith in God I think you will understand my petition.

I thank you in advance for your consideration.

15 An officer of the Department then prepared a submission or issues paper for consideration by the Minister. The paper had five sections in its body and six annexures. There was no evidence before me of its preparation by the Department or of its consideration by the Minister, other than the document itself containing in two places what was accepted to be the signature of the Minister.

16 The immediate feature of comment relevant to this case is the fact that the fifth and final section of the submission was a body of draft reasons expressed in the first person singular. The place of this section was explained on the first page of the submission under the heading “Purpose” as follows:

1. To seek your decisions on:

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

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

2. Should you choose to make a cancellation decision the draft statement of reasons at Part E should set out correctly your reasons for doing so. If it fails to do this a revised statement of reasons that includes your required amendments will be prepared.

17 The submission was organised as follows. Part A contained the personal details relevant to the applicant. Part B dealt with the question of the character test. This matter was dealt with on the basis of the amphetamine conviction and the failure to pass the character test because of ss 501(6)(a) and (7). The facts of the offence were taken verbatim from the prosecutor's statement of facts to which the plea was made and to which I have referred. Complaint was made by the applicant's counsel, Mr Robinson, that this was misleading without reference to the terms of the address in mitigation by the applicant's counsel. I disagree. The author was, at this point, fleshing out the bare facts of the offence. That was perfectly appropriate. In any event, a copy of the transcript of the District Court hearing was enclosed with the submission.

18 Part C was the section dealing with discretion. Parts of Direction 21 were extracted. The part of paragraph 2.6 concerning the gravity with which the Government viewed drug offences was set out. Paragraph 2.7 of Direction 21 was set out as follows:

Paragraph 2.7 of the Direction states:

It is the government’s view that the sentence imposed for a crime is an indication of the seriousness of the offender’s conduct against the community. Decision-makers should have due regard to the Government’s view in this respect, including:

· the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and

· the repugnance of the crime:

· crimes involving violence or fraud against defenceless person (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.

19 The next paragraph, paragraph 17, contained an error. It stated as follows:

Some of Mr PEREIRA”s offences are recorded in the table below.

Date	Offence	Sentence
New South Wales 18/05/1999	Common Assault	$300
New South Wales 10/06/1999	Common Assault	$500
	Contravene apprehended domestic violence order	$1,000, 2 yrs
New South Wales 26/11/2001	Common Assault	$400
Western Australia 26/04/2002	Amphetamine Possess With Intent	5 yrs imp from 24/01/02 To be Declared a Drug Trafficker

These were not some of the applicant's offences. They were his only offences, though a copy of his criminal record was immediately said to be attached. This part of the submission left the reader with an impression that there were in fact other offences. The contextual importance of this will become apparent.

20 Parts of the applicant's letters were thereafter extracted. The full copies were annexed.

21 The paper then dealt with the likelihood of reoffending. Extracts were set out from the Western Australian Ministry of Justice Report and an extract from the applicant's letters. These documents were identified as annexed.

22 The paper then dealt with general deterrence. It referred to the policy of the Government and noted the Government's strong interest in deterring "offences of this nature".

23 The expectations of the Australian community were dealt with, first, by reference to paragraph 2.12 of the direction. The following was then said in relation to the drug offence.

The offence committed by Mr Pereira as listed in paragraph 9 is considered by the Government to be very serious. The nature of that offence is such that the Australian community expects non-citizens who breach Australian laws while in Australia and commit these crimes to have their visa cancelled.

It is to be noted that this comment on the seriousness of the offence was limited to the drug offence.

24 The submission then dealt with the subject of the best interests of the children. Reference was made to Article 3.1 of the Convention on the Rights of the Child. Reference was made (without quotation) to paragraph 2.16 of Direction 21, which set out aspects of the interests of the children to which regard should be had: the nature of the relationship between the child and the non-citizen, the duration and strength of the relationship, the age of the child, whether the child is a citizen or permanent resident, the likely effect the separation would have on the child, the impact of the non-citizen's prior conduct on the child, the time the child has been in Australia, the circumstances of the receiving country, language, and cultural barriers.

25 The submission then quoted from the applicant's second letter extensively. His letters were identified as annexed. The submission stated:

In the event that Mr Pereira’s visa is cancelled and he is removed to Chile, Mr Pereira has stated in his submission that his children would not accompany him.

In the unlikely event that the children did accompany Mr PEREIRA to Chile, the educational facilities and standard of the health support system of that country are of a lesser standard to those available in Australia. Language barriers and initial cultural barriers are also foreseen for the children in the probably country of future residence.

It is open to you to find from the information given that the cancellation of Mr PEREIRA’s visa and his removal from Australia may have a detrimental effect on his children.

It is also open for you to find that Mr PEREIRA’s children would suffer hardship if they were to be removed from their family and the support networks they have developed in Australia.

26 Finally in a section entitled "Other Considerations" reference was made to the balance of the applicant's family. This hardship was summed up as follows:

Should his visa be cancelled and he be removed from Australia, the extent of disruption to Mr PEREIRA, relates primarily to his inability to have contact with his children and immediate family members in Australia who represent his support group. His children currently don’t have access to their father. His parents and siblings would suffer from the emotional loss of an eldest son and sibling respectively.

27 Part D of the submission was entitled "decision". The first paragraph (paragraph 45) stated the following:

I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) the Direction under s 499 of that Act and (3) all evidence provided on behalf of/and by Mr PEREIRA.

28 Thereunder, in paragraph 46 of the submission, there was a choice set out as follows:

I have decided that:

(Please delete whichever is NOT applicable)

(a) I am satisfied that Mr PEREIRA passes the character test.

(b) I reasonably suspect that Mr PEREIRA does not pass the character test and Mr PEREIRA has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(2) of the Act to cancel the visa.

(c) I reasonably suspect that Mr PEREIRA does not pass the character test and Mr PEREIRA has not satisfied me that he passes the character test. I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa. My reasons for this decision are stated at Part E of this record.

29 The Minister circled (c) and signed and dated the document.

30 Part E of the submission was the draft set of reasons. The reasons were signed by the Minister and dated. The date was the same date as the date of the signature under the decision record, 13 August 2004. The evidence allows the conclusion that the Minister signed the draft reasons unchanged.

31 I will deal with the terms of the reasons below. It is important, however, to appreciate what the "reasons" were before they were adopted. They were part of the submission. They were no doubt read and intended to be read as part of the process of decision-making by the Minister. On one view they can be seen as a Departmental recommendation, not so much the personal view of the author, but an expression of view purportedly conformable with Government policy which would justify a decision to cancel the applicant's visa. As such they are part of the submission to be taken into account and considered before the decision. The submission, including the draft reasons viewed as I have indicated, is an integral part of the decision-making process. Unless it falls to be judged otherwise, it is not required to be viewed as adverse information obtained from a third party about the applicant: Bushell v The Secretary of State for the Environment [1981] AC 75, 95-6; Alphaone; and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 77 ALJR 1829; 201 ALR 327.

32 The applicant submitted that as a body of adverse conclusions formulated as draft reasons, Section E of the submission should necessarily have been disclosed to the applicant. Mr Robinson relied on what Gleeson CJ, Gummow J and Heydon J said in Palme at [20]-[22] of their reasons which was as follows:

The submission thus presented the minister with a balanced picture on topics, including likely recidivism, which was based upon contemporary material. The conclusion reached was that it was open for the minister that there was a low risk of recidivism. In that setting, the complaint of a failure to set out in the body of the submission a particular portion of the sentencing comments made 9 years before is fanciful.

Further, it does not readily appear how the principles of procedural fairness could be engaged in the manner contended for by the prosecutor. It may be accepted, as the prosecutor submitted, that his entitlement extended to the rebuttal of, and comment by way of submission upon, adverse material received by the decision-maker from other sources. That stops short of supporting a complaint of the nature essentially involved here of the “pitch” or “balance” in the statement of relevant considerations in the submission. Further, as indicated above, there is no substance in any complaint of unfair or prejudicial “lack of balance”.

Reference was made by the prosecutor to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd. Nothing there said supports any different conclusion to that just expressed. The Full Court’s statement of principle was as follows:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

33 It was submitted because Section E was a body of draft reasons to support cancellation it was necessarily "pitched" against the applicant and unbalanced. I leave to one side for the moment the detail of the draft reasons to which I will come shortly. I reject the argument that any set of draft reasons must necessarily be put to the subject of the decision because of their inherent adverse nature. As draft reasons they form part of the decision-making process available to be adopted and amount, as I have said, to a recommendation or provision of an open or available alternative. They can be seen as the consideration of the available material by the Department. They are not adverse third party material. They are the reflection of part of the thought process of decision-making up to and including the consideration by the Minister.

34 Alphaone and Palme provide the guidance to identify the circumstances where the applicant should be given an opportunity to deal with something in a Departmental submission. On the hypothesis, as here, that the applicant has been given, with some clarity, the framework and detail of the relevant universe of discourse, a submission that analyses and recommends giving detailed reasons for an available decision does not need to be disclosed if it does not materially go beyond the boundaries of the opportunity already given to deal with known issues. An applicant with ten convictions for serious violence who has had the opportunity to comment on his or her record cannot complain of unfairness if he or she is not shown the Departmental recommendation for cancellation because of the perceived seriousness, brutality and number of the offences. If, however, in considering these ten offences for violence, the author of the recommendation mistakenly concludes that one of the offences was a serious sexual assault (when in fact it was not a sexual assault at all) the error could be seen as material. Though it was not third party information, but internal consideration, it would have the effect of introducing to the decision-maker and the decision-making process a factual circumstance that was new, adverse and material. The source of the material does not matter, rather it is the unfairness of the recommendation in terms going forward without an opportunity to the subject of the decision to deal with the new matter with which is the procedural vice. There has been no opportunity to deal with the new matter because it does not obviously arise (Alphaone) from the existing material in its context; nor could a person in the position of the subject of the decision reasonably expect such a matter to be relevant. It is likewise if the "pitch" or "balance" of the recommendation is such as not to be fairly open. These words ("pitch" and "balance") were taken from the prosecutor's argument in Palme. In one sense, any recommendation that is adverse to the subject of the decision is "pitched" against him or her. But that is not, it seems to me, what the High Court were referring to.

35 A reasoned recommendation can be made, but it must deal with the material in a way that does not raise a consideration or issue or approach that is not obviously open or is such that a person in the position of the subject of the decision could not reasonably expect. New considerations, materially relevant mis-statements of the available material or materially relevant exaggeration or distortion of the available material, which is adverse to the person in question will raise such an issue or consideration. In these circumstances, fairness will generally demand that the person be given an opportunity to be heard because of the new consideration or because of the material mis-statement, exaggeration or distortion that has raised a new issue, in the sense that I have discussed.

36 It may not be easy to assess, in any given set of circumstances, whether there has been a new issue or a misstatement or exaggeration or distortion and, if there has, whether it is material. Though, if a draft set of reasons is provided and adopted, the question of materiality may not be difficult. Minds may well differ as to whether opinions or conclusions drawn by the author of the recommendation go beyond the material, or whether they are just views (to use the words of Mason J in Kioa v West (1985) 159 CLR 550, 588, policy or comment) with which one simply disagrees. Care must be taken in the analysis. This is not a species of merits review or an opportunity for judicial expression of the proper decision. However, the subject of the decision is entitled to have a recommendation against him or her, or the provision of an available view against his or her interests, that is accompanied by detailed reasons for adoption, written in a way that fairly deals with the available material, in respect of which procedural fairness has been given, without material mis-statement, exaggeration or distortion. This is especially so in relation to a decision to banish an applicant, likely forever, from the community in which he (albeit as a non-citizen) has lived for much of his life and in which his three young children are likely to remain and grow up.

37 It is necessary, of course, to have regard to the whole of the material in any given case in order to assess whether there is a new matter or a material mis-statement, exaggeration or distortion. Error in one document may need to be seen in the light of clarity and correctness in the balance of the material.

38 The above approach conforms with the underpinning foundation of procedural fairness that someone in the applicant's position is entitled to have his or her mind directed to the central issues or factors on which the Minister's decision is likely to turn (Kioa v West at 587; Alphaone; R v Home Secretary; ex parte Doody [1994] 1 AC 531, 563). Here, in significant part, this was comprehensively done by providing the applicant with the section of the Act, Direction 21 and his criminal record and by giving him an opportunity to be heard. But how the material is treated by the Department in its effective Ministerial recommendation can enliven a fresh obligation to bring some aspect critical to the recommendation to the attention of the subject of the decision. That will occur, as I have said, as a matter of material substance if, for some reason, there is a new issue which the subject of the decision cannot reasonably be taken to have anticipated. This is no more than basic fairness.

39 Before turning to the terms of the draft reasons, it is necessary to deal with an anterior point. The applicant was critical of the procedure whereby draft reasons were provided for adoption. It was a procedure, it was said, which was conducive to poor decision-making. It was put at one point that in a context where there is merits review by the Administrative Appeals Tribunal for a decision of this kind made by a delegate, but no merits review when the decision is made personally by the Minister a set of draft reasons was undermining of, or inimical to, that statutory distinction. Whether the process is one which will promote good decision-making is not for me to comment on or decide. My concern is legality: Attorney-General (NSW) v Quin (1991) 170 CLR 1 at 25-6 and 33-4. In Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433, in the context of an issues paper being found not to be reasons, and of the Minister having failed to comply with s 501G of the Act, Branson J said the following at [39] (with which Goldberg J at [84] and I at [88] agreed):

I doubt that s 501G(1) is intended to require that the notice therein referred to should emanate from the Minister in the sense that it must be drafted by the Minister. In my view, it would be sufficient for the Minister to adopt as his or her own written reasons prepared by a departmental officer provided, of course, that such reasons actually reflected the reasons why the Minister had reached his or her decision. …

40 If the Minister gave no consideration to the terms of the draft, for instance because the author was known to be reliable and she was prepared to sign a memorandum from that person without giving it consideration, it might be said that there was jurisdictional error for the failure by the Minister to make the decision personally. However, there was no evidence here upon which I could conclude otherwise than that the draft reasons were adopted by the Minister as her own reasons after due consideration and that she made the decision for herself and adopted the draft reasons therefor.

41 Thus, I reject this anterior argument that as a matter of principle the approach of providing draft reasons was not available.

42 It is necessary now to examine the draft reasons as a recommendation or positing of an available approach. It is important to understand that I am looking at the draft reasons as a submission to the Minister and not as the reasons of the Minister.

43 Under the heading "Protection of the Australian Community" there was a discussion of the applicant's offences. Paragraphs 52 and 53 contain the following.

Mr PEREIRA has been convicted of a number of offences between 1999 and 2002. He was convicted of 4 offences in New South Wales for crimes such as Common Assault and Contravene Apprehended Violence Order and one serious offence in Western Australia for the crime of Amphetamine Possess with Intent. The Western Australian offence constitutes a crime that I consider to be very serious under paragraph 2.6 of the Direction:

It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:

(a) In the production, importation, distribution, trafficking, (including possession for this purpose), commercial dealing, or selling of illicit drugs:

· persons who embark upon drug-related crimes for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people:

· the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and

· offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community;

(n) any other crimes involving violence or the threat of violence: such crimes are of special concern to the welfare and safety of the Australian community;

I considered that Mr PEREIRA’s criminal record shows he has incurred fines for acts of violence and a lengthy prison term for drug trafficking. I also considered the effect that illicit drugs have on the community. His conduct has caused serious disruption to a number of Australian citizens and residents and caused them to have concerns in relation to their own safety. I considered this conduct to be very serious.

44 Three matters should be noted about these paragraphs. First, an apparent distinction was drawn between the "serious" offence in Western Australia and the New South Wales offences. This is to be noted, because it is a distinction that is later blurred. Secondly, the New South Wales convictions are described as "acts of violence". At one level this is unremarkable and inherent within the notion of common assault. At another, it may tend to dramatise in its terms the nature of the conduct which gave rise to the charges. This may be so when there is no information before the Minister as to what happened to give rise to those charges beyond the extent of the punishment (fines) and the apparent connection of at least some of the events with the disintegration of the applicant's marriage. Thirdly, there is a reference to "his conduct", including his convictions in New South Wales, having caused "serious disruption" to Australians and caused them to have concerns in relation to their safety. Without knowing anything about the circumstances that gave rise to the assault convictions, there was no basis to say that there was any disruption to people beyond what may be the conduct available to ground an assault charge which may cover a wide range of conduct from the serious and intentional to the recklessly or openly angry. This is not nitpicking linguistics. The materiality of paragraphs 52 and 53 is shown by paragraph 54 which was in the following terms.

The nature of Mr PEREIRA’s conduct and its effect on the community is such that I gave this consideration great weight, having taken the view that the Australian community is entitled to protection from such conduct.

45 The protection of the public from the conviction for drug trafficking is one thing; but to say that the community needs protection from the conduct that gave rise to the assault convictions by removing the applicant from the Australian community forever when there was no material before the Department or the Minister of what that conduct was, in my view, went beyond, and in that sense exaggerated, the available material.

46 The draft reasons then go on to refer to a pattern of criminal behavior over four years. The applicant says that it was over two years, but that is perhaps an error that can be overlooked as it did span four calendar years. However, paragraphs 55 and 56 of the draft reasons, as they were under the heading "Risk of Recidivism", are of further concern. They stated as follows:

I considered the patter of Mr PEREIRA’s criminal behaviour, which encompassed a period of some 4 years. I noted that Mr PEREIRA claims not to have committed any offences other than his most recent offence of Amphetamine Possess with Intent and that he considers the cause for his offending to have been family and work problems. I also noted Mr PEREIRA’s claim that he has changed and now wants to become a good member of the community.

Mr PEREIRA has denied the existence of prior convictions in New South Wales. I assessed that there is a continuing risk that Mr PEREIRA might re-offend. I placed moderate weight on his risk of recidivism.

47 These comments must be viewed against the background of the earlier correspondence. The Departmental letter said that the "relevant ground" was s 501(6)(a). The applicant dealt with the drug offence in his letter. He gave no explanation of the New South Wales offences. He did say that he had not committed any other crimes, but as I have said, it must have been apparent to the Department that he had his record and that he knew the Department had his record. It had been sent to him by the Department. In my view, it was a distortion of the correspondence to conclude that the applicant was denying the New South Wales offences ever happened. He was dealing with the drug offence. It may be that his approach reflected on the perceived lack of seriousness of the New South Wales offences. What he actually thought is, however, irrelevant. But a common sense appreciation of the Department's initial letter and his response does not fairly lead to a conclusion that he was denying that he committed the New South Wales offences. He pleaded guilty to them. This was, in my view, a distortion of the material.

48 The treatment of the New South Wales convictions as serious crimes which was implicit in how they had been treated in paragraphs 53, 54 and 55 was compounded by paragraph 60 which was in the following terms.

In view of the serious nature of Mr PEREIRA’s offences, however I believe that the Australian community would expect Mr PEREIRA’s visa to be cancelled and him to be removed from Australia. I gave great weight to this consideration.

49 On the material available it was an exaggeration to say that the New South Wales offences were of a serious nature. That would depend on understanding something about the underlying facts. Of course, at one level, any infraction of the law is serious, in particular any degree of violence. Context, however, is all important. Here, the context of judging seriousness is whether the Australian community would expect this man to be expelled from the community forever. To talk of the serious nature of an offence in that context requires one either to have before one an offence of a character that bespeaks serious criminality of conduct or, if an offence such as common assault for which fines have been imposed is before one, to know something about the underlying circumstances. Neither obtained here in relation to the New South Wales offences. There was, in my view, a material distortion or exaggeration of the material that was available.

50 This exaggeration or distortion is compounded again, in my view, in paragraphs 67 and 69 which were in the following terms:

I noted that Mr PEREIRA’s criminal conduct began when he was 20 years old, that his crimes were serious, involved violence on some occasions, and that his conduct was related to marital and work related problems. I accepted that his marital and work related problems caused Mr PEREIRA considerable stress.

…

In reaching my decision I concluded that the nature and seriousness of Mr PEREIRA’s crimes over a period of four years, the harm that illicit drugs cause the community and the expectations of the Australian community outweighed all other considerations above.

51 In those paragraphs, there was some recognition of the background to the matters, but the gist of what the Minister was being told by her Department here, as a concluding remark about the applicant's past, was that the applicant was a criminal who had engaged in serious crimes of violence. That was an exaggeration of the available material in a fundamentally important respect. I say this, not because I take a different view to the author as to the quality of the circumstances, but because the conclusion cannot be made in those terms without understanding the circumstances of what happened to give rise to these charges. That was not known to the Department. The above exaggeration was also made worse by the reference in paragraph 17 of the otherwise balanced Section C of the submission to "some" of the applicant's criminal offences.

52 In my view, there was in the draft reasons an entrenched material exaggeration which went beyond the material available and which effectively introduced a new issue. This was compounded by the direction in which the applicant was taken in the Departmental letter focusing on s 501(6)(a).

53 The material exaggeration was not cured by regard to the material put before the Minister. The draft reasons were said to be correct. They were intended to be relied on as being correct. No doubt the Minister did rely upon them – she adopted them. The evidence does not permit the conclusion that the Minister read all the annexed supporting material. The statement in paragraph 45 of the submission (see [27] above) that the Minister had regard to “all relevant matters” does not identify what material was examined.

54 It is necessary to emphasise that my conclusions are reached not because the Minister's reasons were so expressed. The findings and reasons, as such, in this form, may well not give rise to jurisdictional error. As reasons, they may reflect factual conclusions at odds with the available material, but which display no jurisdictional error. I need not decide this question and it may depend upon the proper application of cases such as Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59. So much can be accepted; but it does not follow that as draft reasons submitted for adoption, so written, they do not raise the necessity for a further opportunity to be heard because of material mis-statement or material exaggeration or distortion in approach as a body of draft reasons for submission to the Minister.

55 A further complaint was made based as to an asserted failure to afford procedural fairness based on the Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 concerning the taking into account of the best interests of the children. The draft reasons contained the following in paragraph 61 to 63.

I also gave primary consideration to the best interests of the children. Mr PERERIA has three children through his marriage to Ms Karen Gonzalez, from whom he has been separated since 1999. His former wife has refused access to the children and Mr PEREIRA has recently sought Family Law Conferencing in an attempt to obtain access of the children.

Mr PEREIRA advised that should he be removed from Australia, his children would not accompany him to Chile. However, I found that it was reasonable to assume that if they did, then they would not have access to educational opportunities and a health support system that are of a comparable standard to those available in Australia. I therefore found that the children would suffer hardship if they accompanied Mr PEREIRA to Chile.

I noted Mr PEREIRA’s comments in his submissions that his removal from Australia would cause his children to grow up without the necessary influence, love and support of a father. I concluded that the cancellation of Mr PEREIRA’s visa and his removal from Australia would cause some hardship on the children. I gave the difficulties his children would suffer if he was removed from Australia considerable weight but noted that Mr PEREIRA’s criminal history and incarceration also cause him and his family hardship.

56 The Minister noted the applicant's comments in his letter. Also, Section C of the submission had set out relevant parts of the applicant's second letter. However, a number of decisions of this Court have explained the importance of identifying what the interests of the children are, see in particular Wan v The Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, 140. Before one can take the interests of the children into account as a primary consideration, one needs to appreciate what those interests are. The submission referred to paragraph 2.16 of Direction 21. That was a good beginning. But there was no real application by the Minister to the circumstances, such as they were known, of these three young Australian citizens aged 8, 6 and 4. The Minister stated that she concluded that the applicant's removal from Australia leaving behind, as was anticipated, his three small children "would cause some hardship on the children". The "difficulties" that they would suffer were not identified.

57 As I said in Perez v The Minister for Immigration and Multicultural and Indigenous Affairs (2002) 119 FCR 454 at 485-6:

Here, nowhere did the delegate identify for himself those interests, or what they called for. It should be said at the outset that this is not some inflexible rule of law, or requirement for mechanical incantation. It is a logical and appropriate starting point if the task is to be essayed reliably. The interests of the children are considerations in respect of their human development - their health including their psychological health and happiness, their social and educational development as balanced nurtured young citizens of this country. This is not a check list but an illustration of the kinds of considerations relevant to these young people which form their best interests in connection with a decision whether to keep their father away from them in gaol save for visits or whether to release him on appropriate conditions if thought necessary.

58 Not only was there little, if any, elucidation in the reasons of the Minister of the interests of these three young Australians, there is an absence of expression of what so weighs against this primary consideration as to outweigh it: see Wan at [32] to [34] and see also Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218 at [53] to [57].

59 Further, there appears to have been taken into account as a contrary matter that the applicant's criminal history and incarceration (both expressed in the past tense) also “cause him and his family hardship” (expressed in the present tense). It is difficult to understand what this means given the inquiry is as to the effect in the future of expelling the applicant from this country. I do not propose to pursue this difficulty. Given that I am of the view that the content of the draft reasons was otherwise such as to lead to a denial of procedural fairness, it is unnecessary to base my decision on Teoh. It is sufficient to say that the paucity of the Minister's reasoning in respect of the interest of the children provides a strong foundation to say that the application of the views of the Full Court in Wan would lead to the decision being set aside also.

60 Apprehended bias was relied on. I reject this ground. The provision of the draft reasons, the adoption of them and the terms of the submission otherwise, taken together or alone would not raise a reasonable apprehension in a fair minded informed lay person that the decision may not have been brought about by an impartial mind. In this respect, I refer to the test set out in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6], [7] and [8].

61 There was no irrelevant consideration in taking into account by adoption of the draft reasons. They are not someone else's reasons for another decision. They are, as I have said, part of decision-making process, an available view was being put to the Minister. Leaving aside the difficulties I have otherwise expressed about them, to take the draft reasons into account was not to take into account an irrelevant consideration.

62 There was also asserted a failure to obtain information and inquire as to the nature of the New South Wales offences. In my view the proper way to analyse this is as I have identified, that is, that the recommendation or submission went beyond the available material to such a degree as to raise the obligation to give the applicant an opportunity to be heard. It is not to be analysed in my view by reference to a duty to inquire and discover relevant information. No foundation has been shown for such a duty.

63 Irrationality and illogicality were asserted as to paragraph 63 of the reasons which had the curious passage as to the best interests of the children to which I have already referred. It is unnecessary to decide, but I do not think that this is sufficient to infect the whole of the decision with jurisdictional error by reference to the principles discussed in Applicant S 20. However, as I have already said, it does contribute to the conclusion that the interests of the children may not have been dealt with in a satisfactory way.

64 It follows from these reasons that the applicant, in my view, was not afforded procedural fairness by the Minister in the making of this decision. The decision to cancel a visa was therefore, in my view, made without jurisdiction or in excess of jurisdiction. That would lead to the conclusion that the applicant’s visa has not in fact been cancelled validly and the applicant should be treated as currently holding the visa he had.

65 The orders of the Court will be as follows. The Court:

(1) Declares that the decision of the respondent Minister made on 13 August 2004 to cancel the applicant's visa was made in circumstances of the applicant being denied procedural fairness.

(2) Orders that a writ in the nature of certiorari issue quashing the said decision of the respondent Minister.

(3) Orders that the respondent be restrained herself and through her servants or agents from dealing with the applicant on a basis otherwise than that his visa was not validly cancelled by the above decision.

(4) Orders that the respondent cause the applicant to be released from immigration detention forthwith.

(5) Orders that the respondent pay the applicant's costs.

(6) Order that these orders not be entered prior to 3 pm today.

(7) Grant leave to the respondent to relist the matter at 2.15pm on notice to counsel to the applicant if there is to be any debate about the terms of the above relief.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 11 January 2005

Counsel for the Applicant:	Mr M A Robinson

Solicitor for the Applicant:	Adrian Joel & Co

Counsel for the Respondent:	Mr G T Johnson

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	9 December 2004

Date of Judgment:	21 December 2004

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