FEDERAL COURT OF AUSTRALIA
Weti v Minister for Immigration & Citizenship [2007] FCA 1531
MIGRATION LAW – cancellation of visa on character grounds – previous warning on same ground – notice of intention to cancel
Administrative Appeals Tribunal Act 1975 (Cth) ss 39, 40(1)
Migration Act 1958 (Cth) ss 499, 501(2), (6), (7)
House v The King (1936) 55 CLR 499 referred to
Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 35 ALR 186referred to
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24referred to
Sales v Minister for Immigration & Multicultural Affairs [2006] FCA 1807considered
Sullivan v Department of Transport (1978) 20 ALR 323 considered
ANYA FRANCISCA WETI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL
NSD 13 of 2007
EDMONDS J
5 OCTOBER 2007
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY THE HON R N J PURVIS AM QC, DEPUTY PRESIDENT |
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BETWEEN: |
ANYA FRANCISCA WETI Applicant
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AND: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
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JUDGE: |
EDMONDS J |
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DATE OF ORDER: |
5 OCTOBER 2007 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The applicant pay the first respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 13 of 2007 |
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY THE HON R N J PURVIS AM QC, DEPUTY PRESIDENT |
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BETWEEN: |
ANYA FRANCISCA WETI Applicant
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AND: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
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JUDGE: |
EDMONDS J |
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DATE: |
5 OCTOBER 2007 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
Introduction
1 This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”), N2006/1237 dated 8 December 2006 constituted by the Hon R N J Purvis AM QC, Deputy President, affirming a decision of a delegate of the first respondent (“the Minister”) to cancel the applicant’s Special Category Visa Subclass TY-444 on character grounds under subs 501(2) of the Migration Act 1958 (Cth) (“the Act”).
Background
2 The applicant – a New Zealand citizen – was born on 15 November 1981 and arrived in Australia with her parents on 19 June 1985. She was three years and seven months old. Since that time she has only left Australia on six occasions. On two occasions in 1986 and 1987 she left the country for a period of less than one month. On all remaining occasions – with just one exception – she left the country for less than two months. The one exception being in 1989 when she left the country for four months when she was eight years old. The last occasion she left Australia for a brief period was in 1996.
3 The applicant attended school in Sydney to Year 10, leaving school when she was aged about 16. Her parents have divorced and each has remarried. She has a brother, now aged about 20 years, a half sister, the daughter of her mother, aged about five years, and two half brothers, the sons of her father, aged about four years and three years respectively. The applicant’s natural parents both live with their current spouses in suburbs of Sydney.
4 The applicant started using drugs in about 1996, whilst still at school. It was then cigarettes and marijuana. Later it became heroin. The applicant had many convictions between 1996 and 2005 and was first sentenced to a term of imprisonment in 2002.
5 On 14 February 2005 the Minister notified the applicant that her visa may be liable for cancellation on character grounds. In March 2005, whilst serving another term of imprisonment, the applicant claimed that she had rehabilitated herself. On 5 April 2005 the Minister notified the applicant that he had decided not to cancel her visa but issued her a warning that “conviction for any further offences will result in a fresh assessment being made to again consider cancellation of your visa”.
6 After this warning and her release from prison the applicant re-offended and was convicted of seven counts of shoplifting and two counts of larceny and sentenced to further terms of imprisonment.
7 The applicant was notified on 29 August 2006 of the Minister’s intention to consider cancelling her visa. The applicant responded by facsimile on 12 September 2006 claiming that:
(a) she had lived in Australia for 22 years with her immediate family;
(b) she had no contact with her family members in New Zealand and, if deported, would be going to a country that was unfamiliar to her; and
(c) she had addressed her negative behaviour and drug problem whilst in custody and if given the opportunity would be able to prove that she was “now a valuable member of society”.
8 On 14 September 2006 the applicant was notified of the Minister’s decision to cancel her visa. The reasons for that decision were hand delivered to the applicant on 25 September 2006. The reasons included that:
(a) the Australian community was entitled to be protected from the continuing serious criminal behaviour of the applicant;
(b) the applicant’s conduct of committing a series of further offences after the warning in April 2005 and her record of internal infringements whilst in custody during 2006 indicated that it was unlikely her statements that she had addressed her negative behaviour were correct and there was a high risk she would re-offend;
(c) while the applicant would experience significant disruption and hardship to her life and to her immediate family, the fact that she was 24 years old and would have no language or cultural difficulties in New Zealand meant that she could establish herself independently in New Zealand.
Legislative Context
9 The Minister’s decision was made pursuant to s 501(6)(c)(ii) of the Act. Section 501 relevantly provides:
“ …
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test .
Substantial criminal record
(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.”
10 Pursuant to s 499 of the Act the Minister has given written directions about the cancellation of visas under s 501 of the Act. Direction No. 21 was issued by the Minister on 23 August 2001. Direction No. 21 provides that it is binding on all decision-makers under s 501, including the Tribunal.
Tribunal Hearing
11 On 20 September 2006 the applicant lodged an application for review of the Minister’s decision with the Tribunal. On 6 November 2006 the applicant’s solicitor filed a notice of appearance in the following terms:
“1. I am the Solicitor for the Applicant.
2. I am unable to appear at the hearing of this matter.”
12 On 8 November 2006 the applicant’s solicitor filed a two page Statement of Facts and Contentions (“SOFAC”)and a witness statement from the applicant’s mother. In the SOFAC the applicant’s solicitor emphasised the applicant’s social ties to Australia and possibility of rehabilitation as follows:
“3. The Applicant contends that notwithstanding her criminal conduct that the discretion not to cancel her visa or ought to apply by reason of the following:
(i) The Applicant’s length of residence in Australia (21 years);
(ii) The Applicant’s family disposition;
(iii) The Applicant’s past and present community ties;
(iv) The Applicant sincere regret and remorse about her criminal conduct.
4. The Applicant contends that her addiction to narcotics since the age of 15 years has driven her to commit anti social acts in order to sustain her addiction and to that extent the Applicant’s ‘risk to the wider Australian community’ is mitigated by the treatment of her addiction.
5. The Applicant contends that her criminal history, although suggestive of a risk of recidivism, is properly characterised as being ‘Low’ by the Applicant voluntarily participating in community treatment programs.
6. The Applicant contends that the expectations of the Australian community would not traverse the general expectation that a person who serves a custodial sentence for drug related offences, would, following a course of treatment in custody, be rehabilitated and be permitted to remain in Australia.”
13 At the hearing of her application on 27 November 2006 the applicant appeared for herself and sought an adjournment as follows:
“THE D. PRESIDENT: Yes, Ms Weti, are you appearing on your own behalf?
MS A. WETI: Yes, I was, Deputy President, but I was supposed to have a step-in solicitor appear for me today but I was told five days ago that no, he wasn’t going to appear. There was going to be no one to appear for me. So I wanted to know if I could get my case adjourned until I find another solicitor.”
14 The transcript records that the applicant confirmed she rang the Tribunal in the previous week and told them of this problem and said that she was intending to represent herself and had not yet taken any steps to find an alternative solicitor. The applicant said that she intended to call Marsdens Solicitors that afternoon to seek representation.
15 The transcript indicates that the Deputy President tried to accommodate the applicant’s adjournment request as follows:
(a) the Tribunal was aware that it had to make its decision by 20 December 2006, otherwise pursuant to s 500(6L) of the Act, it would be taken to have affirmed the Minister’s decision;
(b) the Tribunal sought to adjourn the matter to 8 December 2006 (being the only date the Deputy President was available in the given period);
(c) internal enquires through the Tribunal’s registry revealed that there were no available hearing rooms to enable the matter to be heard on any date (other than 28 November 2006, being the second day for which it was set down) in the period before 20 December 2006;
(d) the Deputy President then adjourned the hearing on 27 November 2006, on the applicant’s request, to enable the applicant to make what arrangements she could and commenced the hearing on 28 November 2006.
16 Ms Weti gave oral evidence and was cross-examined at the hearing.
Tribunal’s Decision
17 In his decision affirming the cancellation of the applicant’s visa, the Deputy President:
(a) expressly had regard to the submissions made by the applicant’s solicitor;
(b) made factual findings entirely in conformity with the written evidence;
(c) found that he could have little confidence in the applicant’s statements about rehabilitation given her past behaviour;
(d) had regard to the fact that her living in Australia was not a right but a privilege and the abuse of that privilege by non-citizens should be discouraged;
(e) considered that the community was entitled to be protected from the applicant’s repetitive criminal conduct;
(f) had regard to the consequences of cancellation on the applicant’s family circumstances.
The Amended Application to this court
18 The applicant filed an amended application in this Court on 30 May 2007, which raises four grounds of review:
(1) The applicant was denied natural justice in the Tribunal in that without reasonable cause the case was not adjourned on her application for sufficient period to enable her to find alternative legal representation.
(2) Further or in the alternative the Tribunal failed to give proper consideration to a relevant matter namely that the applicant was denied procedural fairness in responding to the original Notice of Intention to Consider Cancellation (“the NOICC”) of her visa under s 501 of the Act.
(3) Further or in the alternative the Tribunal failed to give proper consideration to the full descriptive effects of visa cancellation on the applicant’s family and other ties to the Australian community.
(4) Furthermore or in the alternative the Tribunal’s decision was motivated by an improper purpose in that it placed undue emphasis in its decision on consideration of “general deterrence” so as to render the decision to cancel the applicant’s visa punitive in nature and involved double punishment of the applicant contrary to the common law principle of double jeopardy.
19 On the hearing of the appeal, counsel for the applicant indicated that ground (4) was not pressed, by which I have taken to mean “abandoned”.
Ground 1 – Denial of Natural Justice – Failure to Adjourn Resulted in Applicant not Receiving a Fair Hearing
20 The relevant facts are summarised in the applicant’s written submissions and are largely not in dispute. However, there are some, such as in (4) below, where, on a reading of the transcript of the proceedings before the Tribunal on 27 November 2006, I would draw a different conclusion from that submitted by the applicant.
(1) As indicated in [11] above, on 6 November 2006 Mr Christopher Levingston, solicitor, gave written notice to the Tribunal that he was unable to appear for the applicant on the hearing of the matter. He informed the applicant that a “step-in” solicitor would appear for her.
(2) The matter had been listed for hearing before the Deputy President on 27 and 28 November 2006. About five days before the hearing was to commence, the applicant was informed that the “step-in” solicitor who was to appear in lieu of Mr Levingston was not available to appear.
(3) The application for the adjournment was not opposed. There was no suggestion that any prejudice would have been caused to the Minister by an adjournment.
(4) The Deputy President indicated that he was unavailable from 11 to 20 December. This is based on the following excerpt from the transcript:
“THE D. PRESIDENT: If somebody is going to assist you the date would need to be convenient to that person as well. As you have heard from Mr Palfrey, we really have got three weeks. 20th is a Wednesday, yes, just over three weeks to have a hearing and to give a decision. It’s hard enough to give a decision, let alone one very short period of time. So the matter really would have to be heard next week, some day. Is 8 December convenient to you, Mr Palfrey, it is a Friday? That is Friday week.
MR PALFREY: I don’t have another hearing on that date. I have from the 11th a two week hearing.
THE D. PRESIDENT: From the 11th at the moment I don’t have a free day, certainly up to the 20th. I do not have a free day. The only free day I possibly have is Friday week.”
I do not read this as the Deputy President saying he is only unavailable from 11 to 20 December. His words: “[F]rom the 11th” are really a reference back to what Mr Palfrey has said: “I have from the 11th a two week hearing”. The Deputy President is saying: “[A]t the moment I don’t have a free day, certainly up to the 20th. I do not have a free day. The only free day I possibly have is Friday week [8 December].”
(5) The Deputy President indicated that he was possibly available on 8 December 2006, however, no hearing room was found to be available on that day. The Deputy President said: “Indeed there are no days available seemingly up until 20 December”, which, in context, could only be read as meaning that there were no days up until 20 December 2006 on which a hearing room was available.
(6) The applicant observes that the Deputy President did not canvass the possibility of having the matter heard before a different Tribunal member in order to accommodate the adjournment application; but presumably this was because no hearing rooms were available on any day up until 20 December 2006.
(7) The Deputy President did not canvass the possibility of having the matter heard either before himself or another member of the Tribunal between 1 – 7 December 2006 inclusive; but presumably this was because, in the case of the Deputy President, his only free day up until 20 December was 8 December, and in any case, because no hearing room was available.
(8) On 27 November 2006 when the adjournment application was made, the Deputy President was not part-heard in the matter.
(9) The matter was accordingly listed for hearing on 28 November 2006 whereupon the applicant was unrepresented.
(10) The applicant gave evidence at the proceeding without the benefit of a legal representative to assist her in adducing her evidence in chief nor to protect her interests during her cross-examination or to conduct re-examination or make submissions in reply on her behalf.
(11) The consequences of a failure to overturn the decision to cancel the applicant’s visa are extremely grave for the applicant putting her at risk of deportation. The task before the applicant was an extremely onerous one especially without the benefit of legal representation.
21 The Minister put a different spin on some of these matters. His counsel observed that in early November 2006 the applicant engaged the services of a solicitor who explicitly stated he could not appear at the hearing. On her behalf, that solicitor filed the SOFAC containing comprehensive submissions/contentions on all relevant issues – the applicant’s length of residence in Australia; her family disposition; her past and present community ties and her criminal conduct. He also filed on her behalf a witness statement from her mother. The applicant was well aware of all the relevant evidence and issues and had the benefit of legal advice. The Tribunal attempted to grant the applicant’s request for an adjournment on the morning of the hearing but was unable to grant one longer than a day due to the time constraints upon it to make the decision (see [15(a)] above) and the lack of availability of any other hearing rooms. In the circumstances, it was simply not possible for the Tribunal to fully accommodate the request.
22 Both parties referred me to the provisions of s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), which provides:
“39 Opportunity to make submissions concerning evidence
(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
(2) This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.”
The Tribunal is specifically empowered to adjourn a proceeding when reviewing a decision (under s 40(1)(c) of the AAT Act).
23 The applicant submitted that the Tribunal failed to provide her with a reasonable opportunity to present her case for the reasons outlined in [20(1)] – [20(11)] above. I have some difficulty with this submission. The matters outlined in [20(1)] – [20(11)] above are undoubtedly relevant to the issue of the exercise of the Tribunal’s discretion to only grant a very limited adjournment, but, apart from [20(10)], they do not seem to me to be reasons why the Tribunal’s decision constituted a failure to provide the applicant with a reasonable opportunity to present her case.
24 I was referred to what was said by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 342, namely:
“Section 39 of the Administrative Appeals Tribunal Act provides, for present purposes, that ‘the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case’. In dealing with an application for review, the Tribunal is plainly under a duty to act judicially, that is to say, with judicial fairness and detachment. In these circumstances, the requirement contained in s 39 that the Tribunal shall ensure that a party to the proceedings before it be given a reasonable opportunity to present his case constitutes statutory recognition of an obligation which the law would, in any event, imply. Where a Tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe (see R v Moodie (1977) 17 ALR 219 at 225).”
25 A little later (at 343) his Honour said:
“A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. … The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment.”
26 When pressed as to what the Deputy President should have done in the circumstances but did not do, counsel for the applicant submitted:
(1) “First and foremost he should have canvassed the possibility of having the matter heard by another member of the Tribunal.”
As I have indicated at [20(6)] above, presumably the Deputy President did not undertake any such canvassing because he was aware that no hearing rooms were available on any day up until 20 December 2006.
(2) “[H]e should have canvassed the dates, between 1 December of that year …” and 7 December as to whether the matter could be heard by himself or another member of the Tribunal.
As I have indicated in [20(4)] above, my reading of the relevant excerpt from the transcript indicates that the Deputy President did not have any days available from that moment until 20 December 2006, other than the next day (28 November 2006) and possibly 8 December 2006. That last-mentioned date was not a choice because of lack of availability of a hearing room, and the possibility of the matter being heard by another member of the Tribunal in the 1 to 7 December 2006 period was out for the same reasons.
27 Finally, the applicant submitted that the subsequent conduct of the hearing, together with the Deputy President’s initial instinct to accede to the request to adjourn the matter, only serves to emphasize the merits of the adjournment application – the reason the Deputy President chose not to do so being apparently based entirely on pragmatic considerations regarding room availability.
Analysis of Ground 1
28 While it is clear that a refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case – see Deane J in Sullivan at 343 – whether it does or not depends on what underlies the request for an adjournment. For example, and this is close to the example cited by Deane J in Sullivan, if a party makes application for an adjournment to enable him to procure a particular person as a witness, refusal of that application may well constitute such a failure. The refusal of an application for an adjournment predicated on a lack of legal representation and a need for time to secure such representation, as in the present case, may also constitute such a failure, but then again it may not. It will depend on the facts and circumstances of the case, in particular how the lack of legal representation impacted (adversely) on the ability of the applicant to present his/her case.
29 In the present case, the application for adjournment was not refused but was limited to one day – to 28 November 2006 – rather than ten days – to 8 December 2006 – which was the preferred term of adjournment of the Deputy President. Whether or not an adjournment is granted and the terms of that adjournment are matters entirely within the discretion of the Tribunal. As was said in House v The King (1936) 55 CLR 499 at 504 – 505:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”
30 The considerations which led or compelled the Deputy President to so limit the term of adjournment have already been canvassed at some length, and it was not submitted on behalf of the applicant that the exercise of the discretion miscarried because such considerations, or any one or more of them, were not relevant. But the applicant submitted that the Deputy President failed to take into account two relevant considerations, namely:
(1) The possibility of having the matter heard by another member of the Tribunal; and
(2) the possibility of the matter being heard in the period 1 – 7 December 2006.
I have already indicated at [26] above why I do not think these were real possibilities and that may well explain why the Deputy President made no specific reference to them. In the scheme of things, I do not think the lack of any specific reference to them indicates that they were not taken into account; rather they were overtaken by the fact that the Deputy President only had one possible free day between 27 November 2006 and 20 December 2006 (apart from 28 November 2006) and that was 8 December 2006 and the fact that there were no hearing rooms available up until 20 December 2006 even if another member of the Tribunal was available to hear the matter at a date later than 28 November 2006.
31 While there was no express challenge to the Tribunal’s exercise of its discretion in limiting the terms of the adjournment to one day in the form of a ground of review, a considerable amount of time was spent in argument on the Tribunal’s alleged failure to take these two matters into account. If there was such a ground of review, I would not be prepared to conclude that the Tribunal’s exercise of discretion miscarried by reason of such matters.
32 This still leaves the issue of whether the Tribunal’s decision to limit the terms of the adjournment to one day constitutes a failure to give the applicant the opportunity of adequately presenting her case. That can only be properly assessed by undertaking a comparative analysis of how the applicant’s case was actually presented and how it might have been presented had she been legally represented. In undertaking this analysis, it is important to keep in mind that the issue is whether the Tribunal’s decision constituted a failure to give the applicant the opportunity of adequately presenting her case, not whether, with legal representation, her case would have been better presented.
33 In his written submissions, counsel for the applicant submitted that there is a clear inference to be drawn from the transcript that the applicant was in fact disadvantaged in the presentation of her case as a consequence of being unrepresented in that:
· Her witness was not present at court to speak on her behalf (notwithstanding that the Minister had not required her for cross-examination).
· The Tribunal relied on written submissions filed by her former lawyer – submissions which the court never expressly sought consent from the applicant to rely upon. Nor was the applicant asked specifically to elaborate on the written grounds.
· The applicant gave evidence and was cross-examined at length – there was no effective opportunity for re-examination. The credibility of her assertion that she was committed to rehabilitation was clearly in issue.
· The Tribunal asserted in its reasons that there was no evidence “about the Applicant’s relationship with other members of her family or members of the community” – yet there was little inquiry made by the Tribunal into the nature of those relationships when the applicant gave evidence notwithstanding that the applicant was unrepresented.
· The applicant gave limited closing submissions. Furthermore, the Tribunal raised an issue which had only been touched upon in written submissions filed by the Minister – namely, the suggested general deterrent value of visa cancellation. This issue took on a prominence in the hearing at the Tribunal’s behest and the Minister elaborated in his oral submissions. The issue of general deterrence and the applicant’s failure to heed a previous warning clearly had a profound effect on the Tribunal’s decision. This was an area which the applicant was clearly ill-prepared to address.
34 In her written submissions, counsel for the Minister submitted that it is not apparent how the applicant suffered any substantial injustice from not having a solicitor present to object to questions and make oral submissions on her behalf. The applicant’s written submissions fail to give any instance of any question which was unfair and which was relied upon adversely to the applicant. Nor do those submissions highlight any particular aspect of the process which the applicant did not adequately understand. The factual issues were not complex and there were no legal issues. The question was whether the Tribunal should exercise its discretion to not cancel the applicant’s visa despite her criminal record. The central factors relevant to the exercise of that discretion, her recidivism and her family ties, were well canvassed before the delegate and the Tribunal and were matters upon which she had been able to receive legal advice and assistance prior to the hearing.
35 During the course of argument, I asked counsel for the applicant to tell me, apart from the fact that had the applicant been legally represented the case may have been presented better than it was, what other unfairness manifested itself by the fact that the matter was not adjourned to afford the applicant an opportunity to perhaps seek, although not necessarily get, legal representation? I paraphrase his response as follows:
(1) The applicant had no witness evidence at the hearing. With legal representation, the importance of this would have been impressed upon her and upon those witnesses. It was an extremely important aspect of the case for the Tribunal to determine the impact of visa cancellation on the applicant, on her relationship with her family and on her relationship with others in the community.
(2) There was no evidence, apart from some very general evidence from the applicant, about her relationship to people in New Zealand.
(3) There was no evidence about prospects of rehabilitation. Clearly with the benefit of a representative some attempt could have been made to organise a report or some other document that would have been of assistance to the Court in assessing her prospects for rehabilitation.
36 In response, counsel for the Minister submitted that while the applicant’s solicitor could not appear at the hearing, something the applicant knew from early November, she did have legal assistance in preparing her case for hearing. The fact that one witness statement was filed – from the applicant’s mother – indicates that the matter of evidence at the Tribunal hearing was addressed in the course of that preparation and one can only conclude that the advice was that no further evidence was necessary or, if the advice was to the contrary, the applicant and her family chose to ignore it. Counsel referred me to a passage in the transcript where the applicant is recorded as saying:
“There is not much evidence there is going to be hardship and stress on my family if I am deported to New Zealand but I think that I should be given a chance to prove myself. That’s all.”
And in response to a question from the Deputy President seeking confirmation from the applicant that she has no witnesses to call:
“No, my family wasn’t able to come today, they were all at work.”
It was submitted that the fact that the solicitor then acting, Mr Levingston, did not file any further evidence and the fact the family preferred to work rather than support the applicant at the hearing perhaps indicates that Mr Levingston did file all of the available evidence.
37 On the issue of whether or not there was some unfairness because the applicant was not able to put on any evidence about rehabilitation, counsel for the Minister submitted that in relation to the preparation of evidence rather than the presentation of evidence, if there is any unfairness about what was prepared, that really lies to the conduct of her solicitor rather than any procedure adopted by the Tribunal.
38 Having considered these respective submissions and having read the transcript of the proceedings before the Tribunal both on 27 and 28 November 2006 a number of times, focusing on the manner in which the Deputy President conducted the proceedings – the questions he asked of the applicant going to the presentation of her case, and by way of clarification of some of her answers, the assistance he afforded her in reversing the order of address – the nature of the questions which were put to the applicant in her cross-examination and the manner in which they were put, I am not persuaded that the Tribunal’s decision to limit the adjournment of the proceedings to one day, resulting in the almost inevitable consequence that she would not be legally represented at the hearing on the following day, constitutes a denial of natural justice or procedural fairness in the form of a failure to provide her with a reasonable opportunity to adequately present her case.
39 The first ground of review cannot be sustained.
Ground 2 – Failure to Consider a Relevant Consideration
40 The second ground of review was that the Tribunal failed to give proper consideration to a relevant matter, namely, that the applicant was denied procedural fairness in responding to the original NOICC of her visa under s 501 of the Act.
41 The alleged denial of procedural fairness in responding to the NOICC was particularised in the applicant’s amended application in the following way:
(a) The applicant was in criminal detention at the time that she was required to respond to the NOICC; and
(b) the applicant did not use a lawyer or migration agent in providing that response; and
(c) the applicant was only granted 14 days to respond to the NOICC (that is, she was not granted an extension of time beyond the 14 days, notwithstanding that she did not formally request an extension); and
(d) the applicant was not afforded any other opportunity to respond to the NOICC.
42 The applicant’s case on this ground relied almost if not entirely on the decision of Allsop J in Sales v Minister for Immigration & Multicultural Affairs [2006] FCA 1807 where his Honour held that in the facts and circumstances of that case, the 14 day response period specified in a letter to Mr Sales, informing him that he was liable to the possibility of visa cancellation and deportation, was “plainly inadequate for him to address the task before him” (at [32]) and “was not procedural fairness” (at 36]).
43 Counsel for the applicant submitted that although Sales involved a decision made by the Minister personally, the circumstances of this case include all of the above criteria. Furthermore, like the applicant in Sales,neither the applicant nor her mother could be described as “people of wide or deep resources, or otherwise of significant education” (at [23]). In Sales,Allsop J described Direction 21 as “a comprehensive and careful document” and that the “task to prepare material for a consideration of such matters, objectively understood, is wide-reaching and significant” (at [14]). I was referred to the remarks of Allsop J at [31] to [34] with the submission that they are all applicable to the applicant with the exception that she has not spent “most” of her adult life in prison, however, she has certainly spent a significant part of her adult life in prison.
44 The fact that this alleged failure had not been raised in the Tribunal was no bar to its qualification as an error of law on the part of the Tribunal according to counsel for the applicant. In this regard I was referred to what was said by Bowen CJ in Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 35 ALR 186 at 194; see too Fox J at 199; although Deane J at 205 was troubled as to whether the appellant’s failure in that case to raise the issue in the Tribunal precludes the intervention of the court on appeal.
45 Counsel for the Minister accepted that failure to consider a relevant consideration is, as Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, “one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action”; but noted that failure by a decision-maker to take into account relevant considerations is only an error where the statute makes the considerations ones which the decision-maker is “bound to take into account in making that decision”.
46 Counsel for the applicant further submitted that the ground of review should be rejected for the following reasons:
(1) As neither the Act, nor Direction No. 21, either expressly, or by implication, mandate the consideration of this factor, the failure to take it into account cannot be an error.
(2) Any procedural failings by the delegate of the Minister in reaching the original decision could not be relevant in any sense as the Tribunal was making the decision afresh and so any such unfairness was able to be remedied.
(3) It is not apparent that there was any relevant unfairness by the delegate. Unlike the case in Sales, this was the second time the applicant had to explain why her visa should not be cancelled, the applicant did not complain that she was unable to respond effectively and she took the opportunity to make submissions, similar in substance, to those later made by her solicitor.
Analysis of Ground 2
47 In the facts and circumstances of this case, I do not think the 14 day response period in the NOICC denied the applicant procedural fairness. While there are some factual similarities between this case and Sales, they are more apparent than real. Importantly, this was the second time within approximately 18 months that the applicant was called upon to respond to such a notice and her responses in that case resulted in a warning. It was made clear in the NOICC that in making a decision whether to cancel the applicant’s visa under s 501(2) of the Act, the Minister or delegate would take into account, amongst other things, the information the applicant supplied on the earlier occasion.
48 This ground of review cannot be sustained.
Ground 3 – Failure to Consider Full Disruptive Effects on Applicant’s Family and other Ties to Australian Community
49 This is undoubtedly a factor to which the Tribunal should have had regard in terms of Direction No. 21 – see [2.17(a)] thereof. The applicant submitted that the Tribunal failed to give proper consideration to the length of time the applicant, a New Zealand citizen, had lived in Australia continuously; there is little discussion in the Tribunal’s decision concerning the length of time the applicant has resided in Australia and the extent of her ties to her family and the disruptive effects of her visa cancellation.
50 In assessing the exercise of the discretion the applicant submitted that the Tribunal simply did not consider the possibility that one consequence of visa cancellation is that the applicant may be permanently excluded from returning to Australia.
51 It was further submitted that the Tribunal failed to consider the effects of the visa cancellation on the applicant’s ties to her siblings – her half brother and her half sisters. I was referred to Sales in which Allsop J suggested that the “bests interests of children”, dealt with at [2.13] of the Direction, could also include children who are not direct issue of the person concerned such as the “extended family of the applicant, including nephews and nieces” (at [20]). Finally, the applicant submitted that although the Tribunal asserted that there was no evidence “about the Applicant’s relationship with other members of her family or members of the community” (at [38]), there was little inquiry made by the Tribunal into the nature of those relationships when the applicant gave evidence notwithstanding that the applicant was unrepresented.
Analysis of Ground 3
52 However, it is apparent that the Tribunal did give this factor consideration. At [38] it said:
“Disruption would result to the Applicant’s family. Her parents reside in Sydney. She maintains that she has a good bonding now with each of them although it is noted neither attended the Hearing. The mother affirmed her 2005 statement. The father did not provide any information to the Tribunal. There was not any evidence about the Applicant’s relationship with other members of her family or members of the community.”
53 I also reject the inference, implicit in the submissions that there was little inquiry made by the Tribunal into the nature of those relationships when the applicant gave evidence, that the Tribunal was in some way under a duty to make inquiry because the applicant was unrepresented.
54 This ground of review must also be rejected.
55 The appeal must be dismissed with costs.
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I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. |
A/g Associate:
Dated: 5 October 2007
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Counsel for the Applicant: |
Mr S Sivas |
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Counsel for the Respondent: |
Ms R Francois |
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Solicitor for the Respondent: |
Clayton Utz |
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Date of Hearing: |
13 June 2007 |
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Date of Judgment: |
5 October 2007 |
