FEDERAL COURT OF AUSTRALIA
Ngaronoa v Minister for Immigration & Citizenship [2007] FCA 1565
ADMINISTRATIVE LAW – irrelevant considerations – administrative discretion limited by object, scope, purpose and express terms of statute – jurisdictional error – no onus of proof in administrative decisions – probative evidence or logical grounds for finding – procedural fairness
MIGRATION – character test – discretion to cancel visa – consideration of criminal charges which were dismissed not a consideration irrelevant to Minister’s discretion – summary of protected information provided – duty to accord procedural fairness may apply where protected information is disclosed – adequate opportunity to respond
CONSTITUTIONAL LAW – whether Minister’s consideration of criminal charges which were dismissed contravened the Constitution – question “manifestly unsound”
Constitution s 80
Migration Act 1958 (Cth) ss 499, 501, s 503A
Judiciary Act 1903 (Cth) s 78B
Abebe v Commonwealth (1999) 197 CLR 510 referred to
Applicant S453 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1106 followed
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Black v Minister for Immigration and Citizenship [2007] FCA 1249 discussed
Briginshaw v Briginshaw (1938) 60 CLR 336 discussed
Cheatle v The Queen (1993) 177 CLR 541 referred to
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576applied
Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 distinguished
Hill v Green (1999) 48 NSWLR 161 followed
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580referred to
Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268 referred to
Kingswell v The Queen (1985) 159 CLR 264 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 referred to
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to
Minister for Immigration and Multicultural and Indigenous Affairs v Ball (2004) 138 FCR 450 distinguished
Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths [2004] FCAFC 22 referred to
Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505applied
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2007) 231 ALR 340 followed
Minister for Immigration, Local Government and Ethnic Affairs v Baker (1997) 73 FCR 187 referred to
Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723 distinguished
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred to
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363referred to
Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 distinguished
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 231 ALR 592referred to
BRUCE LEE NGARONOA v MINISTER FOR IMMIGRATION & CITIZENSHIP
NSD 1498 OF 2007
JACOBSON J
11 OCTOBER 2007
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1498of 2007 |
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BETWEEN: |
BRUCE LEE NGARONOA Applicant
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AND: |
MINISTER FOR IMMIGRATION & CITIZENSHIP Respondent
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JACOBSON J |
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DATE OF ORDER: |
11 OCTOBER 2007 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the 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 1498 of 2007 |
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BETWEEN: |
BRUCE LEE NGARONOA Applicant
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AND: |
MINISTER FOR IMMIGRATION & CITIZENSHIP Respondent
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JUDGE: |
JACOBSON J |
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DATE: |
11 OCTOBER 2007 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
Introduction
1 On 16 July 2007 the Minister exercised his power under s 501(2) of the Migration Act 1958 (Cth) to cancel the residency visa of Mr Bruce Lee Ngaronoa. The Minister was satisfied that Mr Ngaronoa did not pass the character test stated in the Act because he had a substantial criminal record consisting of a prison sentence of four and a half years for serious assaults. He was sentenced to that term of imprisonment in August 2002.
2 In exercising his discretion to cancel the visa, the Minister considered matters which had occurred after Mr Ngaronoa’s imprisonment for the convictions for assault in 2002. In particular, the Minister had regard to further charges of violence against Mr Ngaronoa arising out of an attack made in January 2006 upon a Ms Haug with whom Mr Ngaronoa was then living.
3 The attack upon Ms Haug resulted in five charges against Mr Ngaronoa, of which two were for assault. He was found guilty of the assault charges and, in May 2007, was sentenced to a term of imprisonment of two years with a non-parole period of six months. He was found not guilty on the other three charges.
4 Nevertheless, in exercising his discretion to cancel the visa, the Minister took into account information protected under s 503A of the Act relating to all of the charges arising from the attack on Ms Haug, including information apparently relating to the three charges on which Mr Ngaronoa was acquitted. In his statement of reasons, the Minister said:
“The protected information provided me with a detailed account of the allegations against Mr Ngaronoa. I thought it unlikely that it was wrong in every regard. I did not accept that the finding of not guilty on three charges meant that some elements of the assault described did not in fact occur.”
5 The Minister went on to say that having regard to the protected information, a matter of great concern to him was that Mr Ngaronoa appeared to have attempted to force his own anti-depressant medicine into Ms Haug’s mouth during the assault. The Minister found that Mr Ngaronoa’s conduct in the attack on Ms Haug was very serious and he gave it considerable weight in exercising his discretion to cancel the visa.
6 The protected information which the Minister took into account was not disclosed to Mr Ngaronoa. However, the Notice of Intention to Consider Cancellation of Mr Ngaronoa’s visa dated 17 May 2007, which was given to him on that date, was accompanied by a summary of the protected information. The summary included the statement that Mr Ngaronoa attempted to force the anti-depressant medication into Ms Haug’s mouth.
7 Mr Ngaronoa responded to the Notice but he made no specific reference to the matters set out in the summary of the protected information which accompanied the Notice.
8 Counsel for Mr Ngaronoa raised three grounds of jurisdictional error in the decision of the Minister.
9 The first ground is that in taking into account matters going to the three charges on which Mr Ngaronoa was acquitted, the Minister took into account irrelevant considerations in the exercise of his discretion to cancel the visa.
10 The second ground is that in finding that “some elements” of the charges, on which Mr Ngaronoa was acquitted, had in fact occurred, the Minister applied an incorrect standard of proof.
11 This ground is based upon a statement in the Minister’s reasons that the standard of proof he applied in making his decision was the balance of probabilities, not the criminal standard. Mr Ngaronoa’s counsel submitted that the Minister ought to have applied the Briginshaw standard: see Briginshaw v Briginshaw (1938) 60 CLR 336.
12 The third ground is that Mr Ngaronoa was denied procedural fairness in relation to the use that was made of the protected information. Although the substance of the protected information was provided to Mr Ngaronoa, his counsel submitted that he was not told, nor was it apparent on the face of the material, that the conduct would be taken into account in the exercise of the Minister’s discretion.
13 Mr Ngaronoa’s counsel also contended that this proceeding involves a matter arising under the Constitution or involving its interpretation. A direction was sought for notice to be given to the Attorneys-General of the Commonwealth and States under s 78B of the Judiciary Act 1903 (Cth).
14 The Constitutional matter was said to be that, by taking into account charges upon which Mr Ngaronoa was acquitted, the Minister impinged upon the express guarantee in s 80 of the Constitution that the trial of an indictable offence is to be by jury.
15 After some debate, I came to the view that the question was “manifestly unsound” and did not require a notice to be given under s 78B: see Applicant S453 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1106 at [36].
16 I will set out my reasons on that question later.
The Background Facts
17 The background facts are set out in the Issues Paper supplied to the Minister to seek his decision on whether Mr Ngaronoa passed the character test and, if not, whether to cancel the visa.
18 Mr Ngaronoa is a citizen of New Zealand, where he was born in July 1975. He first entered Australia on 2 September 1995, aged 20 years. He was granted a Subclass 444 – Special Category (class TY) visa which allowed him to enter and remain in Australia. Other than three departures for very short periods, he has lived in Australia since that time. He held a Subclass 444 – Special Category (class TY) visa at the time of the Minister’s decision.
19 On 16 August 2002 Mr Ngaronoa pleaded guilty to four counts of assault under the Crimes Act 1900 (NSW). The charges arose out of an incident that occurred at Terrigal on 4 October 2001. The circumstances were described in the sentencing remarks of Judge English who set out the events which occurred when Mr Ngaronoa entered a home at Terrigal armed with a shovel and attacked the occupants.
20 Her Honour referred to medical evidence that Mr Ngaronoa met the diagnostic criteria for bipolar disorder. She said that when he took his medication and abstained from using illicit substances, he had demonstrated that he can be a worthwhile member of the community.
21 Her Honour continued as follows:
“Having said that however, I cannot overlook the objective seriousness of the offences which he has committed. His victims sustained serious injuries requiring hospitalisation and ongoing medical treatment. They were no doubt terrified to be confronted by a large young man who not only punched his victims, but chose to assault them with a wooden shovel handle inflicting serious injuries.
The fact that he was depressed and abusing drugs and alcohol at the time is no excuse. These were vicious assaults on innocent victims.”
22 On 17 September 2003 the Department of Immigration and Multicultural and Indigenous Affairs gave Mr Ngaronoa a notice of intention to cancel his visa under s 501(2) of the Act. The Notice stated that the matters to be taken into account by the Minister included Judge English’s remarks on sentencing.
23 I will refer to the Notice of 17 September 2003 as “the First Notice”. It was sent to Mr Ngaronoa at Cessnock Correctional Centre where he was serving his term of imprisonment.
24 There was correspondence between the Department and Mr Ngaronoa during the period from September 2003 and August 2004. It is unnecessary to refer to it.
25 On 9 November 2006 the Department sent Mr Ngaronoa a second Notice of Intention to Consider Visa Cancellation (“the Second Notice”). It was sent to him at Goulburn Correctional Centre.
26 The Second Notice was apparently given because of concerns within the Department that the First Notice did not contain a copy of the relevant provisions of the Act. The Second Notice contained a list of matters which the Minister proposed to take into account which included Judge English’s remarks but added material that post-dated the conviction of 16 August 2002.
27 On 4 May 2007 Mr Ngaronoa was convicted of two charges of assault on Ms Haug occasioning actual bodily harm. The assault occurred on 27 January 2006. Judge Finnane of the District Court of New South Wales imposed a sentence of two years imprisonment on both counts, to be served concurrently. His Honour set a non-parole period of six months.
28 The three charges on which Mr Ngaronoa was found not guilty were –
· Threatening to use an offensive weapon to commit an indictable offence;
· Detaining Ms Haug without her consent and occasioning actual bodily harm to her;
· Having sexual intercourse with Ms Haug without her consent and threatening to inflict bodily harm on her.
29 On 17 May 2007 the Department sent Mr Ngaronoa a third Notice of Intention to Consider Cancellation of his visa (‘the Third Notice’). As previously mentioned, the Third Notice stated that the information which could be relied upon to exercise the discretion to cancel Mr Ngaronoa’s visa included information that was protected under
s 503A of the Act. However, a summary of that information was provided to him.
30 The summary was contained in the Court Book at p 135. I will set it out in full:
“The Department of Immigration and Citizenship has information that is considered ‘protected’ under section 503A of the Migration Act 1958.
Although the exact information cannot be released to you, a description of the information may be given. That description follows.
In January 2006 you and Ms Haug were living together in an intimate relationship at 30 McGowen Crescent in Liverpool. Ms Haug had decided that she wanted to end the relationship with you and tried to leave the house.
You stopped Ms Haug from doing this and in the process you;
intimidated her
slapped her,
attempted to choke her,
demanded she strip off her clothes which she did partially,
tied her to a bed using coat-hanger wire,
held a knife towards her vagina and threatened to cut her from her vagina to her breasts,
rubbed your penis on her buttocks, legs and face,
had sexual intercourse with her,
then took your antidepressant medication and attempted to force the same medication into Ms Haug’s mouth.”
31 The Third Notice was sent to Mr Ngaronoa at Junee Correctional Centre. It contained the following statements under the sub-heading “Your opportunity to comment”:
“Before the minister or delegate considers whether to cancel your visa under subsection 501(2), you are provided with an opportunity to comment. You may provide information and comments in relation to:
· Whether or not you pass the character test; and
· Any information that you feel the minister or delegate ought to be aware of and take into account in deciding whether the discretion to cancel your visa should be exercised.
If there is additional information that you wish the minister or delegate of the minister to consider, you must give that information to the department. This information can include material provided by other people on your behalf.
I have enclosed a Personal Details Form which you may submit in addition to your comments as to why your visa should not be cancelled. However, you should not feel confined to the questions in this document. A copy of this form is at Attachment O for your information.
Please read the Direction carefully. You should ensure that your response addresses each and every topic that you feel is relevant to your circumstances.
If you do not provide any further information the minister or the delegate may rely upon the information set out above to determine that your visa is liable to cancellation under subsection 501(2) of the Act.”
32 Mr Ngaronoa replied to the Department in a handwritten document. The document was undated but was apparently received by the Department on or about 1 June 2007. The document expressed concerns about Mr Ngaronoa’s personal and family position. Mr Ngaronoa stated that he had been addressing his mental health and his drug and alcohol problems.
33 He expressed his regrets and sorrow for his actions but he did not specifically address the matters set out in the summary of protected information.
34 There was further correspondence between the Department and Mr Ngaronoa in June and July 2007. It is unnecessary to refer to it. However, it is to be noted that the author of the issues paper stated, in relation to each document sent by Mr Ngaronoa to the Department, that he did not appear to have been assisted by a lawyer or migration agent in preparing his response.
The Minister’s Statement of Reasons
35 The Minister’s Statement of Reasons was dated 16 July 2007. The Minister found that Mr Ngaronoa did not pass the character test because he was sentenced to a term of imprisonment of four years and six months on 8 August 2002: s 501(6)(a) and s 501(7)(c) of the Act.
36 Having found that Mr Ngaronoa did not pass the character test, the Minister went on to assess the information contained in the Issues Paper to consider whether to exercise his discretion to cancel the visa. He was not bound by Ministerial Direction No. 21, given under s 499 of the Act, but stated that he was guided by the factors set out in that Direction.
37 The Minister sated that he gave primary consideration to the protection of the Australian community. He accepted Judge English’s remark that the victims of the assault were terrified. He considered that the sentence of four years and six months suggested that the Judge saw the offence as serious. The Minister thought the attack was in the nature of a home invasion but he accepted that there were “to some small degree”, mitigating factors to the offences.
38 The Minister then turned to the question of the assault on Ms Haug. He referred to the five charges, the finding of guilt on two of them and the acquittal on the other three.
39 The critical part of the Minister’s reasons appears in the following paragraphs:
“[14] The standard of proof required when making this decision is that of the balance of probabilities and not the higher standard of beyond reasonable doubt that may be used in a criminal matter. I accepted that the protected information represented what Mr Ngaronoa had been charged with and not what he had been found guilty of beyond a reasonable doubt. The protected information provided me with a detailed account of the allegations against Mr Ngaronoa. I thought it unlikely that it was wrong in every regard. I did not accept that the finding of not guilty on three charges meant that some elements of the assault described did not in fact occur. I noted that although Mr Ngaronoa had the opportunity to comment on the summary of the protected information and the nature of his assault on Ms Haug that he did not. Mr Ngaronoa offered no mitigating factors for his assault on Ms Haug.
[15] Having regard to the protected information, a matter of great concern to me was that Mr Ngaronoa appeared to have attempted to force his own anti-depressant medication into Ms Haug’s mouth during the assault and only then took the medication himself.
[16] Mr Ngaronoa stated that following his offences of 2001 he was now aware of his disorders, was medicated and had insight into his behaviour. By 2006 Mr Ngaronoa should have been in no doubt that he suffered from various disorders and that he was prone to violent behaviour if he did not take his medication. That he would assault Ms Haug when he had his medication available to him was of great concern.
[17] I found that Mr Ngaronoa’s conduct was very serious and that the Australian community is entitled to protection from such conduct.
[18] The information relevant to this consideration weighs in favour of cancelling Mr Ngaronoa’s visa. I gave this consideration considerable weight.”
40 Later, in his statement of reasons, the Minister said he was very concerned that despite having been advised previously that his visa may be cancelled, Mr Ngaronoa committed a violent offence in January 2006 at the time the Department was considering the cancellation of the visa.
41 In dealing with the expectations of the Australian community, the Minister said that he gave primary consideration to this factor. He said that the community would be of the opinion that compassionate reasons existed to prevent Mr Ngaronoa’s removal because to do so would be likely to permanently separate him from his ten year old son who suffers from behavioural disorders.
42 The Minister then said:
“[43] After balancing the compassionate expectations of the Australian community against other factors, I found that the Australian community would expect that Mr Ngaronoa’s visa would not be cancelled and that he would remain in Australia at this time.
[44] The information relevant to this primary consideration weighs against cancelling Mr Ngaronoa’s visa. I gave this primary consideration moderate weight.”
43 The Minister’s statement of reasons went on to deal with other discretionary considerations which are not relevant to the questions that presently arise.
44 In his conclusion, the Minister stated that in reaching his decision he concluded that the protection of the Australian community outweighed all other considerations. He decided to exercise his discretion to cancel Mr Ngaronoa’s visa under s 501(2) of the Act.
Relevant Considerations
45 It was submitted on behalf of Mr Ngaronoa that, having chosen to be guided by Direction No. 21, the Minister misconstrued the direction and fell into jurisdictional error by impermissibly taking into account alleged criminal conduct for which Mr Ngaronoa was acquitted.
46 The authorities make it clear that the Minister is not bound to proceed by reference to a direction under s 499 but it is open to the Minister to use the direction as a guide: Black v Minister for Immigration and Citizenship [2007] FCA 1249 at [19]; Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 at [31].
47 In the present case, Mr Ngaronoa’s counsel did not point to any error on the part of the Minister in construing Direction No 21. Rather, the gravamen of the submission was that, upon the proper construction of s 501 of the Act, the Minister was precluded from taking into account allegations of criminal conduct as to which the person had been acquitted. To do so was said to be to take into account an irrelevant consideration.
48 In Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505, Kiefel and Bennett JJ observed at [72] the Act does not state what factors the Minister is bound to consider in determining whether or not to cancel a visa. Their Honours referred to a number of authorities which make it clear that a precondition for the exercise of the discretion is failure to satisfy the character test.
49 The discretion is not fettered by any express limitation but it must be exercised by reference to conditions identified from the subject matter, scope and purpose of the Act: see Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268 at [17]; Huynh at [73]; see also Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 at [189].
50 In Huynh, the majority justices pointed out at [74] that a reference to the subject matter, scope and purpose confirms the breadth of the Minister’s discretion. The object of the Act is to regulate, in the national interest, the entry into and presence in Australia of non-citizens: see Huynh at [74]. It follows from what their Honours said that the Minister is not bound to consider the level of involvement in an offence which carries a sentence of imprisonment for the requisite term; nevertheless, he or she may do so in the exercise of the discretion.
51 It also follows, in my view from the wording of s 501 considered as a whole, and from the observations of their Honours in Huynh, that the Minister was not precluded in the exercise of his discretion, from having regard to conduct in respect of which charges were laid but on which Mr Ngaronoa was acquitted.
52 First, as is implicit in the observations of their Honours in Huynh, the object of the provision is not confined to prohibiting the entry or presence in Australia of persons who have been convicted of criminal conduct.
53 Second, as a Full Court observed in Minister for Immigration, Local Government and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194, s 501 is concerned with a person’s conduct, either “general conduct” or conduct of a more particular kind which may be described as “criminal conduct”. This may be seen quite clearly in s 501(6) which provides that a person does not pass the character test if he or she has a substantial criminal record (see s 501(6)(a) or is not of good character having regard to, inter alia, the person’s past and present general conduct. (See s 501(6)(c)(ii)).
54 Third, Direction No. 21 states that the object of the Act is to regulate in the national interest, the coming into and presence in Australia of non-citizens. It also states that the Minister has a responsibility to protect the community from criminal and “other reprehensible conduct”.
55 I do not consider that the remarks of Besanko J in Black at [24] – [27] support the proposition urged upon me by counsel for Mr Ngaronoa, that the Minister is precluded from considering, in the exercise of the discretion, matters upon which the person was acquitted in criminal proceedings.
56 What must be borne in mind is that the present case is concerned with the exercise of the discretion, not the determination that Mr Ngaronoa failed to satisfy the character test. Whilst it would not have been open to the Minister to determine that Mr Ngaronoa had a substantial criminal record on the basis of charges on which he was acquitted, that was not the question which fell for determination: cf s 501(10).
57 Having satisfied himself that Mr Ngaronoa met the precondition, namely failure to satisfy the character test by reason of the term of imprisonment of four years and six months, the question was whether it was open to the Minister to look to conduct engaged in by Mr Ngaronoa in 2006, regardless of whether that conduct was the subject of a criminal conviction.
58 In my view, the authorities to which I have referred establish that the Minister was not constrained from having regard to “general conduct” provided that it pertained to matters affecting the protection of the Australian community. In my opinion, the matter to which the Minister referred did so pertain.
59 I will deal below with the applicant’s second ground, namely the question of whether, in considering the matters on which Mr Ngaronoa was acquitted, the Minister applied the correct standard of proof.
60 Of course, there will always be a question of what weight the Minister should attach to the evidence. That will be a matter for the Minister, but he or she must not act capriciously.
61 I do not consider that the observations of Spender J in Haneef detract from the conclusion I have reached on the question of relevant considerations.
62 In Haneef, Spender J was concerned with the proper construction of s 501(6)(b) of the Act which states one of the criteria for determining whether a person passes the character test.
63 In particular, the question before Spender J was the proper construction of the composite phrase “has an association with someone else … who the Minister reasonably suspects has been, or is involved in criminal conduct.” His Honour considered that the proper construction of the phrase was to be ascertained from its context and purpose: see [152], [178] – [179].
64 It is true that his Honour came to the view that s 501(6)(b) required an alliance or link between the visa holder and the persons engaged in criminal activity. It is this factor which reflects adversely on the character of the visa holder: see [230].
65 However, it seems to me that his Honour’s conclusion related only to the question of whether an “innocent” association fell within the second criterion of the character test stated in s 501(6)(b). It was not concerned with the breadth of the discretion which is conferred on the Minister in the event that the necessary precondition is met: see [269] – [271].
The Briginshaw Standard
66 Counsel for Mr Ngaronoa submitted that in the context of administrative proceedings, the decision-maker is bound to have regard to the well-known statement of Dixon J in Briginshaw at 361-362.
67 There, his Honour drew attention in the context of curial proceedings, to the requirement that a judge should reach a state of reasonable satisfaction having regard to the seriousness of the allegations and of their consequences. Dixon J also said that “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect references.
68 In QAAH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363 at [102] – [103], Madgwick J considered that the observations of
Dixon J in Briginshaw could be applied to a decision made by the Refugee Review Tribunal. However, the decision of the majority judges in the Full Court in QAAH (Wilcox and Madgwick JJ) was reversed by the High Court: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2007) 231 ALR 340.
69 In the High Court in QAAH, the majority justices pointed out at [40] that the Court has repeatedly said that proceedings of the Refugee Review Tribunal are administrative in nature, or inquisitorial, and that there is no onus upon an applicant or the Minister. Their Honours referred to a series of authorities in which this statement had been made including Abebe v Commonwealth (1999) 197 CLR 510: see Abebe at [83] – [84] per Gleeson CJ and
McHugh J.
70 It seems to me to follow that the same approach must be applied to the decision of the Minister to exercise his discretion to cancel a visa. The correct approach in my opinion is that stated by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, in his review of the relevant authorities at [130] – [145].
71 In summary, the Minister must not act arbitrarily or capriciously. The satisfaction of the decision-maker must be based on findings or inferences of fact that are supported by some probative material or logical grounds: see Eshetu at [145]; see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 365-366.
72 Although the Minister based his findings on the matters incidental to the attack on Ms Haug upon the “balance of probabilities”, this must be read in light of the well-known warning against over-zealous scrutiny of the decision-maker’s reasons. The statements made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, apply to the reasons of the Minister: see Black at [23].
73 The Minister had before him protected information that provided him with a detailed account of the allegations against Mr Ngaronoa. Moreover, Mr Ngaronoa was given an opportunity to comment on the substance of this account, but he did not do so.
74 In those circumstances, the Minister had evidence of the allegations and no answer to them. It was therefore open to him in the context of a decision whether to cancel the visa, to give some weight to those allegations.
75 As a matter of first impression it might seem surprising that the Minister thought it unlikely that allegations on which Mr Ngaronoa was acquitted were “wrong in every regard.” But what must be borne in mind is that the issue fell for consideration in a non-curial context. As I have said, the Minister had the protected information and no answer as to the substance of it. He had the responsibility to protect the community from criminal or other reprehensible conduct. He was entitled to give weight to the protected information.
76 It follows in my view that it cannot be said that the Minister acted capriciously or that the finding was not supported by probative evidence or logical grounds.
77 The matter to which the Minister gave considerable weight was that Mr Ngaronoa attempted to force his medication down Ms Haug’s throat. That aspect of the attack on Ms Haug does not seem to form part of the charges on which Mr Ngaronoa was acquitted ie. possession of an offensive weapon, aggravated detainment for advantage and aggravated sexual assault.
78 The Minister reached a state of satisfaction consistent with the evidence before him as recorded in the protected information. The evidence was not contested by Mr Ngaronoa even though he was given an opportunity to comment on it. I do not consider that the Minister reached his decision arbitrarily or capriciously.
79 That is not to gainsay the proposition that the decision to cancel a visa is a serious one. The practical effect of the decision is that Mr Ngaronoa will be permanently excluded under Australian law from returning here: Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths [2004] FCAFC 22 at [3]. Nevertheless in the exercise of his discretion, the Minister was entitled to determine that the protection of the Australian community outweighed all other considerations, notwithstanding his view that compassionate considerations weighed against removal.
80 The burden of weighing these considerations was one for the Minister. It has not been established that the Minister acted outside the terms of his statutory power: see Black at [26].
Procedural Fairness
81 It was accepted on behalf of Mr Ngaronoa that he had received a summary of the protected information relating to the attack on Ms Haug. It was not contended that the summary was inaccurate or misleading.
82 What was submitted was that the letter, under which the summary was provided, did not indicate how the information contained in the summary might be used by the Minister, or how the Applicant might respond.
83 This submission is based upon the principle that procedural fairness:-
“… extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion … which would not obviously be open on the known material.” See Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 592.
84 That passage was referred to by the High Court, with apparent approval, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 231 ALR 592 at [29], [49].
85 In Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723 at [38], Allsop J recognised that this principle may require the Minister to do more than merely provide a person with a copy of s 501, Direction No. 21 and his or her criminal record. How the material is to be treated by the Department in its Ministerial recommendation may enliven a fresh obligation to bring a critical aspect to the attention of the person affected: Navarrete at [38].
86 The Third Notice did not merely refer to the charges arising from the attack. It attached a summary of the information that the Department identified as material that might be relied upon to assess whether to exercise the discretion to cancel Mr Ngaronoa’s visa. The covering letter told Mr Ngaranoa that he had an opportunity to comment on the information. It informed him that if he did not provide any further information, the Minister might rely upon the information identified in the letter to determine that the visa was liable to cancellation: see [31] above.
87 In my view, this was sufficient to satisfy the test stated in Alphaone. Mr Ngaronoa was informed in the letter that the Minister could take into account the material stated in the summary of protected information in his decision to cancel the visa. The use to which the Minister could put the information was sufficiently described. This is not a case in which a fresh obligation was enlivened within the test required in Navarrete because Mr Ngaronoa was told how the material could be used.
88 It is true, as Allsop J observed in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 at [31], that in circumstances such as the present, procedural fairness requires an objectively adequate opportunity for the person affected to deal with the task that is presented.
89 In Sales, Allsop J considered that a period of fourteen days was insufficient for a person to respond to a notice of intention to cancel a visa. His Honour took into account the difficulties faced by a person who had spent most of his adult life in prison. His Honour also pointed to the serious personal consequences to the applicant and his family of an adverse decision by the Minister: see Sales at [32] – [34].
90 By contrast, in the present case, it seems to me that it was sufficiently clear to Mr Ngaronoa how the summary of the protected information could be used by the Minister. I have come to that view on an objective consideration of the terms of the Third Notice and the attached summary. The gravity of the allegations set out in the summary speak for themselves. I have had regard to Mr Ngaronoa’s personal circumstances. I do not consider it is a matter on which evidence of his subjective thought processes would have assisted.
91 Counsel for the Minister submitted that in any event the Minister was not obliged to satisfy the requirements of procedural fairness in relation to protected information under
s 503A of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v Ball (2004) 138 FCR 450 at [30], [90] – [91]. It would follow, so it was argued, that the Minister was under no obligation to provide a summary and that procedural fairness did not require him to explain the use that could be made of the information.
92 The question is one of statutory construction of s 503A. It may well be that having exercised his discretion to provide a summary of the protected information, the rules of procedural fairness applied: Hill v Green (1999) 48 NSWLR 161 at [32] – [34], [39].
93 Although the question does not arise in the present case, the consequence of the Minister’s submissions is that it would be open to him, for instance, to provide an inaccurate or misleading summary of the protected information without regard to the rules of procedural fairness. I do not consider that this question was decided in Ball and am inclined to the view that the submission must be rejected.
The Constitutional Question
94 The Constitutional question which was said to arise was the “guarantee” in s 80 of the Constitution to a trial by jury on indictment for an offence against any law of the Commonwealth. Reference was made to Cheatle v The Queen (1993) 177 CLR 541 at 552 and Kingswell v The Queen (1985) 159 CLR 264 at 292, 301.
95 It was submitted by counsel for Mr Ngaronoa that it was incumbent on the Minister, in exercising his discretion under s 501 of the Act, to confine himself to matters consistent with s 80 of the Constitution. Thus it was argued that the Minister was precluded from having regard to the offences on which Mr Ngaronoa was acquitted.
96 In my view, no such question arises in the present case. There are three reasons for this.
97 First, to the extent that s 80 provides a “guarantee”, the terms of it are very limited. Any guarantee is restricted to a trial on indictment for an offence against any law of the Commonwealth. It does not provide a basis for drawing an implied guarantee that is not expressed in the section: Kingswell at 276-277.
98 Second, Mr Ngaronoa was not tried by a jury for an offence against a law of the Commonwealth. He was tried under State law.
99 Third, what underlies the submission is the proposition that an administrative decision-maker is precluded from looking at factual allegations of criminal conduct on which the person affected was acquitted. That proposition cannot be correct, except insofar as it relates to the threshold character test and s 501(10) of the Act. A different enquiry is involved in the exercise of the Minister’s discretion.
Conclusion and Orders
100 I was assisted by the written and oral submissions of all counsel. Their submissions distilled the essential questions and addressed them clearly and succinctly in a way that enabled me to give my judgment promptly.
101 The orders I will make are that the application be dismissed with costs.
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I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. |
Associate:
Date: 11 October 2007
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Counsel for the Applicant: |
Ms B K Nolan and Ms S Callan |
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Counsel for the Respondent: |
Mr S Lloyd |
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Solicitor for the Respondent: |
Clayton Utz |
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Date of Hearing: |
28 September 2007 |
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Date of Judgment: |
11 October 2007 |
