FEDERAL COURT OF AUSTRALIA

VKAC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 974

MIGRATION – cancellation of visas of brother and sister – statement of citizenship in Issues Papers to former Minister said to be in error – applicants claim their true status is statelessness – not a failure to take into account statelessness (if it is a fact) as a relevant consideration – not a taking into account of an irrelevant consideration – no denial of procedural fairness not putting issue of the citizenship to each applicant for refutation or comment – in the case of the female applicant, no denial of procedural fairness in alleged failure of former Minister to consider reasons of Court of Criminal Appeal in reducing her sentence for drug offences

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 189, 196, 198, 501, 501E

Al-Kateb v Godwin (2004) 208 ALR 124 followed

Berryman v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 993 cited

Craig v South Australia (1995) 184 CLR 163 followed

Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541 distinguished

Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151 followed

Jones v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 70 distinguished

Kioa v West (1985) 159 CLR 550 cited

Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 followed

Minister for Immigration & Multicultural & Indigenous Affairs v Huynh (2004) 211 ALR 126 followed

Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] 162 CLR 24 followed

Minister for Immigration & Multicultural & Indigenous Affairs v W157/00A (2002) 125 FCR 433 followed

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited

Naidu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 83 ALD 64 distinguished

Refugee Review Tribunal and Another, Re; Ex parte Aala (2000) 204 CLR 82 cited

Stead v SGIC (1986) 161 CLR 141 cited

Videto v MIEA (1985) 8 FCR 167 distinguished

WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 cited

VKAC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

VID 761 of 2002

WAKW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

WAD 131 of 2003

NICHOLSON J

15 JULY 2005

PERTH

THE COURT ORDERS THAT:

In each of the applications by applicant VKAC and applicant WAKW:

1.                  the application for review be dismissed.

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

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

REASONS FOR JUDGMENT

1                     Applicant WAKW is the brother of applicant VKAC, his sister.  They each bring applications to review a decision of the former Minister for Immigration and Multicultural and Indigenous Affairs (‘the former Minister’) to cancel their visas pursuant to the provisions of s 501 of the Migration Act 1958 (Cth) (‘the Act’).  The decision of the former Minister in respect of applicant WAKW was made on 23 February 2003 and in respect of applicant VKAC, on 22 January 2002. 

evidence

2                     Applicant WAKW relies upon the affidavit of the solicitor for the respondent sworn on 8 July 2004; the affidavit of his solicitor sworn on 9 March 2005; an English translation of the Burma Citizenship Law of 1982; and an affidavit of himself sworn on 29 May 2003.  The respondent relies on further affidavits of its solicitor sworn on 18 June 2003 and 9 October 2003 and affidavits of Ms Dundas sworn on 18, 26 and 27 June 2003. 

3                     Applicant VKAC relies on the affidavit of the respondent’s solicitor sworn on 6 May 2003; an affidavit of her solicitor sworn on 9 March 2005; an English translation of the Burma Citizenship Law of 1982; and her own affidavit sworn on 5 November 2002.  The respondent relies on the affidavit of its solicitor sworn on 9 March 2005; the affidavits of Mr Gotovac sworn on 15 November 2002 and 18 November 2002; and the affidavits of Ms Grimm sworn on 30 June 2004 and 11 March 2005. 

outline of circumstances: applicant vkac

4                     Applicant VKAC was born in Burma, as it then was, on 22 September 1954.  She and her family (including her younger brother, applicant WAKW) left Burma (now Myanmar) on 8 June 1971 and entered Australia on 10 June 1971.  She was granted an entry permit on arrival in Australia and, under reg 4 of the Migration Reform (Transitional Provisions) Regulations (1994, No 261), after 1 September 1994 the permanent entry permit continued in effect as a visa permitting the holder to remain in Australia indefinitely.  In 1985, applicant VKAC applied to the respondent’s Department (‘the Department’) for an identity document to enable her to travel outside Australia on the basis that she could not obtain a Burmese passport because she had lost her Burmese citizenship 3 months after her permanent departure from Burma in 1971.  The respondent accepts applicant VKAC was so informed by the Myanmar authorities but not that the law in Myanmar requires such a conclusion.  Applicant VKAC was granted the identity document by the Department and used it to travel to Europe, departing Australia in November 1985 and returning in June 1986.  She has not left Australia since 1986. 

5                     In April 2000, applicant VKAC was convicted of a number of drug related offences and she was sentenced to a total of 8 years imprisonment with parole, but the sentence was reduced to 5 years on appeal.  She completed her actual term of imprisonment of some 20 months and was released on parole in about December 2001.  This was her only term of imprisonment. 

6                     By letter dated 31 August 2001, an officer of the former Minister served a notice of intention to cancelling applicant VKAC’s visa.  Applicant VKAC responded by letter from her solicitor.  In the letter from applicant VKAC’s solicitors to the Department dated 31 August 2001 it was stated:

‘My client was unable to obtain an Australian Passport nor was the Burmese Embassy prepared to issue her with a Burmese Passport.  The [latter] apparently informed [applicant VKAC] that she was “stateless”. I would appreciate if the Department would for the purpose of further submission indicate, if [applicant VKAC], were to be deported, the destination to which she would be deported.’

On the final page of the same letter it stated:

‘Whilst I anticipate that the Department has been provided with a history of my client’s offending I do for the [sake] of completeness enclose a copy of the Reasons for Decision in the Supreme Court dated 28 February 2001 the contents which I believe to be self-explanatory and which I believe will be of assistance to the Department in reaching their determination in respect of [applicant VKAC].’

The applicant contends this judgment was not provided to the former Minister by the Department. 

7                     On 22 January 2002 the former Minister determined to cancel applicant VKAC’s visa.  The former Minister’s decision was endorsed on a document headed ‘Consideration of liability for cancellation of [applicant VKAC’s] Visa under s 501 of the Migration Act 1958’ (‘the VKAC Issues Paper’).  The former Minister’s officer gave applicant VKAC notice of such cancellation by letter dated 31 January 2002.  In that letter the officer enclosed the VKAC Issues Paper and stated that it set out the reasons for the former Minister’s decision.

8                     On 1 November 2002, applicant VKAC commenced these proceedings in the Victoria Registry of the Federal Court.  The proceedings were subsequently transferred to Western Australia.  A memorandum of proposed substituted application was filed on 26 February 2004.  It is that application on which applicant VKAC now relies. 

9                     The VKAC Issues Paper describes applicant VKAC as having Burmese citizenship.  No information has been disclosed by the respondent to support this claim.  Applicant VKAC claims to have been stateless since shortly after her departure from Myanmar in 1971.  If that is the case, no country has legal responsibility for her in international law.  Australia has been her country of habitual residence for more than 30 years and applicant VKAC claims it would ordinarily be regarded as the country with which she has had the closest connection.  In 1985, Australia issued to applicant VKAC a travel document being a ‘Certificate of Evidence of Residence Status’ recording that she was granted permission to enter and remain for residence on 10 June 1971 and is not an Australian citizen. 

10                  Following the purported cancellation of applicant VKAC’s visa, she was regarded as an unlawful non-citizen and was detained pursuant to s 189 of the Act, being placed in immigration detention on 4 February 2002.  She continued to be held in detention pursuant to s 196, until she was released on an interlocutory injunction made by this Court on 19 May 2003.  (Section 196 of the Act has subsequently been amended to prevent the Court from making an interlocutory order for the release of a detainee). 

11                  Since at least early 2003 the respondent and her officers have actively attempted to remove applicant VKAC to Myanmar or to any other country without any success. 

12                  Applicant VKAC made an application for a protection visa, which was subsequently discontinued.

13                  Applicant VKAC was also granted a temporary visa on 11 March 2005, effective for 12 months.  It is not contended by the applicant that anything is to be made of this in relation to the application under consideration here.

outline of circumstances: applicant wakw

14                  Applicant WAKW was born in Burma (now Myanmar) on 11 August 1959.  He and his family (including applicant VKAC) left Myanmar on 8 June 1971 and entered Australia on 10 June 1971.  Upon entry he was granted a permanent entry permit.  Under reg 4 of the Migration Reform (Transitional Provisions) Regulations (1994, No 261), after 1 September 1994 the permanent entry permit continued in effect as a visa permitting the holder to remain in Australia indefinitely. 

15                  Applicant WAKW has a number of convictions stretching over a number of years.  His first prison sentence was in 1985.  The most recent sentence was on 20 November 2000 when he received a sentence of four years for amphetamine sell/supply.

16                  By letter dated 8 October 2001, an officer of the former Minister served notice of intention to consider cancellation of applicant WAKW’s visa.  The officer or another officer of the respondent obtained an immigration report from the Western Australian Ministry of Justice.  The information provided in that report left applicant WAKW’s citizenship status blank and further recorded that applicant WAKW stated that he came to Australia on a ‘stateless’ passport.

17                  On 23 February 2003, the former Minister determined to cancel applicant WAKW’s visa on the ‘Consideration of liability for cancellation of [applicant WAKW’s] Visa under s 501(2) of the Migration Act 1958’ (‘the WAKW Issues Paper’).  The former Minister’s officer gave applicant WAKW notice of such cancellation by letter dated 27 February 2003.  In that letter the officer enclosed the WAKW Issues Paper and stated that it set out the reasons for the former Minister’s decision. 

18                  On 30 May 2003, applicant WAKW commenced these proceedings in the Federal Court.  A memorandum of amended substituted application was filed on 18 November 2004.  It is that application on which applicant WAKW now relies. 

19                  The WAKW Issues Paper describes applicant WAKW as holding Burmese citizenship.  However, applicant WAKW contends he was stateless since shortly after his departure from Myanmar in 1971 and this should have been known to the former Minister’s officers.  As a stateless person, no country would have legal responsibility for the applicant in international law.  However Australia has been the country of habitual residence for applicant WAKW for more than 30 years and is said by him to be the country with which he has had the closest connection.  By letters dated 1 April 2003 and 9 August 2004, Myanmar has confirmed that applicant WAKW does not hold Myanmar citizenship.  The respondent does not accept this is a conclusion required by the law of Myanmar. 

20                  Following the purported cancellation of applicant WAKW’s visa, applicant WAKW was detained and was placed in immigration detention in January 2003.  He was held in detention until he was released on an interlocutory injunction made by this Court in June 2003.  In March 2003, applicant WAKW (as an alternative to remaining indefinitely in detention in Australia) requested that the respondent remove him from Australia to Myanmar.  Applicant WAKW maintains that in making such request he did not consider that Myanmar would accept him. 

21                  Since March 2003 the respondent and her officers have actively attempted to remove applicant WAKW to Myanmar or to any other country without success.  Applicant WAKW contends it remains unlikely that Myanmar or any country will permit him to enter. 

22                  Shortly before the hearing of this application, applicant WAKW was granted a temporary visa effective for a period of 12 months.  Nothing is sought to be made of this for the purposes of the present application.

grounds of application

23                  Each application is brought in reliance on s 39B of the Judiciary Act 1903 (Cth) in respect of the prerogative, injunctive and declaratory relief sought.  Each of the amended substituted applications for review relies initially on the ground that:

‘a)       The former Minister’s decision was made without jurisdiction and is thereby void:

PARTICULARS

i.                    The former Minister took into account an irrelevant consideration, namely that the Applicant was a citizen of Burma, alternatively failed to take into account a relevant consideration namely that the Applicant was Stateless.

ii.                  The former Minister failed to accord natural justice to the Applicant by having regard to an adverse and incorrect statement made by the former Minister’s officer to the effect that the Applicant was a citizen of Burma, without giving the Applicant an opportunity to refute or to comment on the adverse statement.’

24                  In the case of application VKAC, there is the following additional particularisation:

‘vi.       The former Minister failed to accord natural justice to the Applicant in that the Minister was not provided with and did not consider the whole of the submissions included or referred to in the Judgment of the WA Court of Criminal Appeal which reduced the Applicant’s sentence from 8 years to 5 years and took a more favourable and understanding view of the Applicant’s drug dealing offences than the District Court Judge.’

Identical submissions were made by each of the applicants on particulars i and ii.  The respondent’s submissions are considered and, where appropriate, incorporated in the reasoning of the Court.

Relevant statutory provisions

‘501     Refusal or cancellation of visa on character grounds

. . .

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

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

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

. . .

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

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

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

            (c)        having regard to either or both of the following:

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

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

                        the person is not of good character; or

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

                        (i)         engage in criminal conduct in Australia; or

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

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

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

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

Otherwise, the person passes the character test.

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

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

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

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

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

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

. . .’

Relevant/irrelevant considerations: whether applicants stateless

applicants’ contentions

25                  In the applicant VKAC Issues Paper it is stated that the citizenship of applicant VKAC is ‘Burmese’.  In the applicant WAKW Issues Paper the citizenship of applicant WAKW is shown as ‘Burma’.  Each contend, for contentions which now follow, that they are stateless.

26                  The applicants place reliance on the proposition that it is well established both in international law and in Australian domestic law that a person’s status as a citizen of another country is determined by the law of that other country. Therefore it is said that the applicant can only be a citizen of Myanmar if Myanmar accepts the applicant as a citizen. 

27                  Reference is made to the Burma citizenship law of 1982 and in particular to Article 16 thereof which reads:

‘16.  A citizen who leaves the State permanently, or who acquires the citizenship of or registers himself as a citizen of another country, or who takes out a passport or a similar certificate of another country ceases to be a citizen.’

Reliance is placed on that portion of Article 16 which addresses citizens who leave the state permanently.  Here reliance is placed on the applicants’ evidence that they have been permanent residents of Australia since 10 June 1971. 

28                  In relation to applicant VKAC, there is evidence that she travelled on a Burmese certificate of identity issued on 26 May 1971 and remaining valid until 26 October 1971.  Additionally she had enquired of the Burmese Embassy in Canberra as to whether she could obtain a passport from there when she wished to travel outside Australia between 1985 and 1986.  Her evidence is that she was told by Embassy staff that she was no longer eligible for the issue of a passport from Burma as she had ceased to be a Burmese citizen three months after departing Myanmar.  Additionally she deposed that she enlisted the support of Father Frank Brennan SJ who made enquiries on her behalf from the Embassy of the Union of Myanmar and was informed that any person over 15 years of age leaving Burma in 1971 with only a certificate of identity and departing with no intention to return was henceforth no longer a citizen of Burma and had no right to reside in Burma. 

29                  Applicant VKAC’s case in this respect relies upon a letter from the Ambassador to Australia from Myanmar to the Acting Regional Representative of the United Nations High Commission for Refugees dated 30 September 2004.  In that letter the Ambassador states that he is not in a position to offer any sort of travel document to applicant VKAC as she was no longer a Myanmar citizen.  His letter continued:

‘She came to Australia at the age of 17 in 1971 together with all of her family members and parents who received migrant visa and Permanent Residence status.  The Government officials issued to them Certificate of Identity for a single journey with the validity of three months as their purpose was to leave the Country permanently (leaving Myanmar for good).  Since they arrived in Australia, none of them reported to the Myanmar Embassy of their arrival or applied for the extension of their citizenship or claimed as they were citizen of Myanmar.  According to Myanmar Passport Regulation and Myanmar Citizenship law, their Citizenship was legally ceased when the validity of Certificate of Identity expired on 15, June 1971 as they left the Country permanently.  So [applicant VKAC] had lost Myanmar Citizen since then.

She made contact with the Myanmar Embassy in 1984 for the first time, inquiring if she could acquire a travel document only when she required to travel to Europe.  The official concerned in the Embassy responsibly replied that it was unable to issue any travel document as she had lost Myanmar Citizen since 1971.  Then she travelled Europe holding an Australian Certificate of Identity No. C-001618 issued by DFAT on 16, October 1985.  She was legally ceased Myanmar Citizenship again according to Myanmar Citizenship Law which clearly mentioned in Section 16, that a citizen who leaves the state permanently, or who acquires the citizenship of/or registers himself/herself as a citizen of other country, or takes out a passport or a similar certificate of another country ceases to be a citizen.’

30                  Applicant VKAC also contends there is no evidence before the Court which suggests that she is a citizen of any other country and that in those circumstances the Court should find that she has been a stateless person at all material times from three months after her departure from Burma in 1971. 

31                  Applicant WAKW relies on evidence to the same effect.  Letters on behalf of the Myanmar Ambassador to Australia dated 1 April 2003 and 9 August 2004 assert that he lost his right to Myanmar citizenship when he departed Myanmar or at least no later than 15 December 1971 when he did not renew his Certificate of Identity. 

32                  The applicants assert that in the event the Court is able to infer that the description of the their status as a Burmese citizens was in error of fact, such circumstance establishes jurisdictional error.  For that proposition applicant VKAC relies on the decision of the Full Court in Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340.  There the majority constituted by Black CJ and Sackville J (Sundberg J dissenting) held that a misstatement of certain sentences of imprisonment imposed on the appellant in that case, combined with the absence of a correct description of the offences in question, established jurisdictional error on the part of the Minister.  It was conceded by the Minister in that case that the appellant’s criminal record was a mandatory consideration required to be taken into account in the making of the decision: at [37].  The Court characterised the misstatement as resulting in the failure to take into account a relevant consideration being ‘an accurate statement of [the appellant’s] criminal record’: at [5(a)] and [8] per Black CJ. 

33                  The applicants accept that their respective Issues Papers do not constitute the former Minister’s reasons for decision nor are compliant with the requirements of s 501G(1)(e) of the Act.  Nevertheless, they say that it can in the circumstances be used to show that an irrelevant consideration has been taken into account or that there has been a failure to take into account a relevant consideration: Minister for Immigration & Multicultural & Indigenous Affairs v W157/00A (2002) 125 FCR 433 at [72] per Branson J; Berryman v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 993 at [44]; Lu at [50]-[55] per Sackville J. 

34                  Taking that approach the applicants submit it can safely be inferred that the former Minister made his decision to cancel each of their visas pursuant to s 501 of the Act on the basis that each of them was a ‘Burmese citizen’, that is a citizen of Myanmar.  They say their correct citizenship status was a relevant consideration which the former Minister was bound to take into account as a consequence of the requirements of the Act in s 501.  While it is accepted that neither the Act nor the section expressly bound the former Minister to take that matter into account, it is said that when the Act is read as a whole it does require that to be taken into account as a matter of logical necessity: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] 162 CLR 24 at 39-40; Lu at [36]-[40]. 

35                  That submission is purported by reference to the consequences of a decision to cancel a person’s visa under s 501.  Reference is made to s 189 and s 196 of the Act which have the effect of requiring a person upon cancellation of a visa to be taken immediately into detention and to remain indefinitely in detention.  Further it affects the power to issue further visas other than a protection visa: s 501E.  Particularly because of the possibility of indefinite detention arising, it is said there could not be any more important issue in exercising the discretion pursuant to s 501 as to whether or not to cancel a resident visa than the person exercising the discretion having the knowledge whether the visa holder is stateless and a person for whom it is likely no country will take responsibility. 

36                  The importance of the issue to the exercise of the discretion is said to be seen by a reference to the very different factual circumstances occurring in Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151 where it was stated at [87] that:

‘There is nothing in the legislative structure to indicate that a potential difficulty in removing a non-citizen must be taken into account by the Minister when deciding whether or not to cancel the non-citizen’s visa.’

reasoning

37                  To consider the grounds of each application it is sufficient to assume that each of the applicants is correct in claiming they are stateless.  That is, although the weight of the present evidence on the issue presently favours each of those applicants in that assertion, it is not necessary for the resolution of the applications that a definitive finding of fact be made on the issue.

38                  Ignoring relevant material or relying on irrelevant material, of which the High Court has spoken in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73]-[82] and in Craig v South Australia (1995) 184 CLR 163 at 179, arises only where the decision-maker disregards or takes account of some matter in the circumstances where the statute or other instrument conferring the relevant power requires that the particular matter be taken into account or ignored as a precondition of the existence of any authority to make a decision in the circumstances of the particular case: Craig at 177 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

39                  Where a discretion is unconfined by the (express) terms of a statute, the Court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act: Peko-Wallsend Ltd at 40 (Mason J). 

40                  The power which the former Minister exercised to cancel the applicants’ visas was that contained in s 501(2) of the Act.  That section does not explicitly require that the citizenship (if any) of the visa holder be taken into account as a prerequisite to the decision whether or not to cancel an applicant’s visa.  To the contrary, the section directs the mind of the decision-maker exercising the discretion to the issue of compliance with the character test.  The section is centrally focussed on that precondition alone.

41                  The applicants generally submit that nevertheless the s 501 should be understood in the context of the subject matter, scope and purpose of the Act as implicitly requiring the citizenship (if any) of an applicant to be taken into account as a prerequisite to exercise of the discretion to cancel an applicant’s visa.  This submission has not been supported by reference to any particular provisions.  Section 4 sets out the objects of the Act.  Object (4) provides that ‘to advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act’.  Consistently with the other objects, this is based on non-citizenship.  The purpose of the Act as seen through its objects clause does nothing to aid the implication which the applicants urge.  In my view, room for the implication is not to be found in the subject matter of s 501 nor is it supported by the purpose or other provisions of the Act.  It is contrary to the principles set out above from Craig and from Peko-Wallsend.

42                  That view is further supported by reference to Al-Kateb v Godwin (2004) 208 ALR 124.  There Hayne J said at [227], Heydon J agreeing at [303], of the provisions of the Act concerned with immigration detention and removal (sections 189, 196 and 198):

‘Removal is the purpose of the provisions, not repatriation or removal to a place.  It follows, therefore, that stateless or not, absent some other restriction on the power to remove, a non-citizen may be removed to any place willing to receive that person.’

See also at [7] Gleeson CJ, dissenting), [33] (McHugh J, relevantly agreeing with Hayne J) and [295] and [301] (Callinan J). 

43                  The substance of the applicants’ submissions are that the fact they were stateless was a relevant consideration going to the issue of the potential difficulty of removing each of them if their visas were cancelled.  However, in the light of Al-Kateb,statelessness is not a consideration to be taken into account.  Furthermore the statement by the Full Court in Djalic at [87] that there is nothing in the legislative structure to indicate that a potential difficulty in removing a non-citizen must be taken into account by the respondent when deciding whether or not to cancel a non-citizen’s visa, is applicable here.  While it is correct as the applicants contend that Djalic dealt with different factual circumstances, and that the potential difficulty of removing a non-citizen may be distinguished from a likely actual difficulty, the central point of the Full Court’s reasoning in relation to the requirements of the legislative structure remain applicable here.

44                  Further it cannot be inferred, as the applicants urge, that the former Minister made his decision ‘on the basis’ that each of the applicants was a citizen of Burma (Myanmar).  The submission that the Embassy of Burma had told applicant VKAC that she was no longer a citizen was annexed to VKAC Issues Paper.  Annexed to WAKW Issues paper was a report from the Western Australian Minister for Justice in which his citizenship was left blank although his birthplace was stated to be Burma.  The observations in W157/00A of Branson J at [78] and Allsop J at [108] apply here:

‘Having regard to the nature and content of the material that was apparently before the Minister at the time that he made his decision, I do not consider that it can be concluded either that he failed to read and consider that material or that the material was insufficient to enable him to take into account [the considerations in that case].’ (Branson J)

‘The universe of material available to the appellant in the issues document and attachments (taken together) contained sufficient information as to enable the appellant to identify the [considerations in that case] and to take them into account.  He may well have done so,  The difficulty is that in the absence of reasons for the decision, and in the light of the form of the issues document, it cannot be concluded that the appellant did not take into account the [considerations in that case].  Nor can it be concluded that he did so.’

(Allsop J)

45                  Reliance by each of the applicants on the concept of irrelevant consideration does not take their argument any further.  The presence of a factual misstatement does not of itself mean that the former Minister took into account an irrelevant consideration.  For there to be an irrelevant consideration it would have to be shown that the Act required the particular matter to be ignored as a precondition of the exercise of the discretion.  Further I agree with the respondent that in Lu the Court did not characterise the misstatement of the sentences as taking into account the relevant consideration; rather the Court characterised the misstatement as resulting in the failure to take into account a relevant consideration being ‘an accurate statement of [the appellant’s] criminal record’. 

procedural fairness – citizenship

Applicants’ contentions

46                  On the basis that misstatement of their citizenship was incorrect, the applicants submit that the former Minister’s decision was in breach of procedural fairness in respect of that particular.  They submit that at the very least it was open to dispute by them that neither of them was a citizen of Myanmar and that they could have presented the former Minister with substantial additional evidence on the issue.  They state they had no reason to believe that their respective Issues Papers would refer to them as a citizen of Burma when the author of that document knew or should have known that each of them were stateless. 

47                  In support the applicants place reliance on the decision of the Full Court in Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541.  That concerned a characterisation set out in the Issues Papers of the risk of recidivism of the person concerned which were not obviously open on material of which the person had had notice and on which the applicant there had had no opportunity to comment.  It also concerned incorrect information in the Issues Paper as to the extent of previous travel to the relevant country and as to the desire of the relevant person to marry someone from that country.  These were said to be relevant because of the effect of these matters on the issue of hardship that the appellant’s departure there would cause to his family: at [42].  The Court found that these contributed to a prejudicial statement of the Issues Paper to the effect that the appellant had retained cultural ties with the country in question: at [79].  Dagli has recently been followed in Jones v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 70. 

48                  The applicant also relies on Naidu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 83 ALD 64 at [44] and Jones at [54]-[65]. 

49                  The applicants further submit that it is only where an affirmative conclusion is reached that compliance with the requirements of procedural fairness could have made no difference to the result that relief will be withheld: Stead v SGIC (1986) 161 CLR 141 at 145; Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82 at 130-132 per Kirby J; Dagli at [91]-[97].  Here it is said that the absence of the provision of reasons by the former Minister makes it quite impossible for him to show that the mistake in the Issues Papers concerning the applicants’ citizenship did not cause him to make the same mistake.  As it was a highly relevant matter it is submitted that such a mistake could clearly have effected the former Minister’s decision. 

REASONING

50                  I agree with submissions made by the respondent.  The question whether the applicants were each citizens of another country was not relevant to the decision to be made by the former Minister under s 501 of the Act either in the Peko-Wallsend sense or in any other sense.  The purpose behind s 501 being protection of the Australian community, the exercise of the discretion provided for in the section does not encompass considerations of difficulty in removing the relevant non-citizen.  For this reason, the statement in the respective Issues Papers, relating to the citizenship of each of the applicants were not (within the oft-quoted expression in Kioa v West (1985) 159 CLR 550 at 629 (Brennan J) ‘adverse information that is credible, relevant and significant to the decision to be made’.  In such a case, the alleged adverse information being not credible, relevant and significant to the decision to be made pursuant to s 501, no breach of the rules of procedural fairness will have occurred. 

51                  I also agree with the respondent that the principal cases on which the applicant relies, Dagli, Naidu and Jones, are each distinguishable.  Each of Dagli and Jones concerned characterisations set out in Issues Papers of the risk of recidivism of the person concerned which were not obviously open on material of which the person had notice, and on which the person had had no opportunity to comment.  As stated, Dagli also concerned incorrect information in the Issues Paper as to the extent of previous travel to the relevant country and as to the desire of the relevant person to marry someone from that country, which were said to be relevant because of the effect of these matters on the issue of hardship that the appellant’s departure would cause to his family (at [42]) and which the Court found contributed to a prejudicial statement in the Issues Paper to the effect that the appellant had retained cultural ties with the country in question (at [79]).  Naidu concerned a sentencing judge’s comments raising a matter (the youth of the visa-holder’s victims) of which he had not had notice.  These types of information were credible, relevant and significant in character.

52                  The other authorities relied upon by the applicants, Stead and Aala,all go to the question whether (if a breach of procedural fairness occurred) relief should be declined as a matter of discretion on the ground that the outcome could not have been affected by the breach.  Here the primary requirement of the existence of a breach of the rules of procedural fairness cannot be made out for the preceding reasons.  

53                  In any event, as the submissions for the respondent also point out, the applicant VKAC through her solicitors was of the view that whether she was a citizen of Burma (Myanmar) was relevant to the decision to be made and she put forward information of her choice on that issue.  She was therefore heard on it.

procedural fairness – criminal appellate judgment

ApplICant VKAC’s contentions

54                  Applicant VKAC invites the Court to infer that the former Minister did not have before him on the exercise of his discretion pursuant to s 501 of the Act to cancel her visa the reasons of the appellate court on the 28 February 2001.  This is said to have occurred although applicant VKAC’s solicitors had forwarded those reasons to the Department in their letter of 31 August 2001. 

55                  The evidence from which it is said the inference can be made that the former Minister did not have that document before him are the affidavit of the solicitor for the respondent which identifies everything that was before the former Minister and does not include reference to the reasons of the Court of Criminal Appeal.  Second, there is no separate reference to those reasons in the annexures to the Issues Paper. Third, the reasons are not referred to by way of any commentary in the Issues Paper itself. 

56                  Applicant VKAC accepts that the Issues Paper does contain a reference to the fact that on the 28 February 2001 her appeal against the sentence of 28 April 2000 had resulted in the appeal being allowed and the sentence reduced to 5 years.  Applicant VKAC submits, however, that reference to the reasoning of the Court of Criminal Appeal would have shown the former Minister that while her offences were certainly serious, they showed that at least to a substantial extent she was a victim of circumstances in that she was providing drugs for her own use and for members of her family who were drug addicts.  It is said this is a very different approach to that taken by the sentencing judge in the District Court. 

57                  In support applicant VKAC relies particularly on what was said in Minister for Immigration & Multicultural & Indigenous Affairs v Huynh (2004) 211 ALR 126.  There the majority (Kiefel and Bennett JJ) held that reasons given by the New South Wales Court of Criminal Appeal, in reducing the non-parole period of the respondent’s sentence, were not matters which the Minister was obliged to take into account in considering whether to exercise his discretion under s 501(2) to cancel the visa of the respondent in that appeal.  Their Honours said at [76]:

‘The remarks of the sentencing judge and of the Court of Criminal Appeal as to the extent of the respondent’s involvement in the drug offence in question only become necessary to the minister’s consideration if there is some obligation, on the minister’s part, to take that matter into account in each case.  No such obligation arises from s 501.  Nor, in our view, can it be said that there is some general obligation to take account of what is said by the courts on these occasions.  It is for the minister to determine, in the exercise of the discretion given by the section, whether they assume importance in a particular case.  It follows in our view that neither the topic referred to by his Honour the primary judge nor what the courts had to say about it can be regarded as relevant considerations in an administrative law sense.’

58                  Here, applicant VKAC submits that the more favourable light thrown on her offending behaviour by the reasons of the Court of Criminal Appeal could have made a difference.  It is said it is not open here, on the authorities mentioned earlier, for it to be concluded that the requirements of procedural fairness as applied in relation to the reasons of the Court of Criminal Appeal could not have made a difference to the result. 

reasoning

59                  Applicant VKAC’s submissions are dependent upon the drawing of the inference that the solicitors forwarded to the Department the copy of the reasons of the appellate court as referred to in their letter of 31 August 2001.  The respondent submits that the clearest available inference is that the applicant VKAC’s solicitors did not so forward the judgment.  In making that submission she relies on the second affidavit of her solicitor.  It was there deposed by her that she had conducted a search of the Department’s files relating to applicant VKAC’s application and had not been able to find a copy of any record of a document referred to or named as ‘Judgment of the WA Court of Criminal Appeal’.  There was on the file a copy of a transcript of the Court of Criminal Appeal proceedings relating to applicant VKAC which was provided by the Director of Public Prosecutions and which simply recorded the remarks of the presiding judge and other judges on the occasion of the delivery of the appellate reasons.  The appellate reasons themselves, which were published on that occasion, were not included in the transcript. 

60                  I agree with the respondent that this evidence does not support the inference applicant VKAC seeks to have drawn that the appellate reasons were part of the record before the former Minister.  This is not therefore a case where the former Minister can be taken to have constructive knowledge of the appellate reasons as a consequence of them being on the Departmental file: Peko-Wallsend at 31; Videto v MIEA (1985) 8 FCR 167 at 179; Huynh at 144, at [80].

61                  At the hearing the ground under which this issue was raised was amended to extend to an allegation that the former Minister did not consider the submissions which ‘referred to’ the judgment of the Western Australian Court of Criminal Appeal.  Applicant VKAC submits that if her solicitors had in fact failed to enclose a document answering the description given to it by them, the former Minister or his officers were required to obtain and have regard to such a document.  In support she relied upon WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 at [48]-[49].  There it was said that:

‘The submissions to the RRT contained in the letter from the appellant’s solicitor of 13 January 2002, referred to above, did not reach the Tribunal because of a fault in the RRT’s facsimile transmission equipment.  Had those submissions been received by the RRT they would have directed the mind of the RRT to the foregoing question.  Counsel for the appellant submitted that a breach of natural justice occurred as a result.  It may be accepted that notwithstanding that the RRT was unaware of the defect in its process, continuation of the proceeding in the absence of the submissions from the appellant’s solicitor, when that party assumed that the RRT had received and would consider those submissions, may, in certain circumstances constitute the adoption of an unfair procedure.  (See:  Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 per Gleeson CJ at [14].)

In the end, however, whether or not a further breach of natural justice occurred in that regard, the purported decision of the RRT involved jurisdictional error in that the RRT failed to consider the correct question it was bound to determine and failed to perform the function required of it by the Act.

62                  In WAEJ the submission in question contained a contention which the Court accepted raised a fundamental question in the review. Here however no detail was given in the applicants’ solicitor’s submission as to the purpose of attaching the reasons so that no fundamental matter was raised. 

63                  In the circumstances it cannot be accepted that the former Minister was under some obligation to locate the reasons himself.  I consider Huynh at [77]-[81] supports that conclusion. 

64                  On the issue of whether the appellate reasons, if on the Departmental file, were a relevant consideration, Huynh at [76] is against such a conclusion.  In Huynh at [81] it is the case that the majority described the appellate reasons there in issue as in no way critical to the Minister’s decision.  I understand their Honours as saying that because of the view they took of the breadth of the discretion under s 501(2):  see at [74] and [75].  Once it is understood that the breadth of the discretion leaves it to the respondent to determine whether matters such as appellate reasons assume importance, it becomes apparent that it cannot be concluded such matters might have made a difference so that the claim of procedural fairness could be made out.

65                  I therefore agree with the respondent that in the circumstances it cannot be said that the applicant VKAC has made out a breach of the rules of procedural fairness on this ground.  Not only did the statutory duty which was on the former Minister in respect of the discretion which he was exercising not require him to give notice but neither did the nature of the materials before him. 

conclusion

66                  For these reasons I consider the applications should each be dismissed.

Associate:

Dated:              15 July 2005