FEDERAL COURT OF AUSTRALIA

Cunliffe v Minister for Immigration and Citizenship [2012] FCA 79

THE COURT ORDERS THAT:

1.    The amended application dated 2 September 2011 be refused with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    The principal issue in this proceeding is whether the applicant, Leslie Neil Cunliffe, a citizen of the United Kingdom, who has lived in Australia for approximately 45 years, is entitled to relief under s 476A of the Migration Act 1958 (Cth) (“the Act”). The applicant, who was convicted of and imprisoned for serious offences in 1999, and released on parole in April 2011, seeks to quash the decision of the respondent, the Minister for Immigration and Citizenship (“Minister”), to cancel his visa, on the basis of a failure to afford procedural fairness.

2    On 10 June 2011, the Minister decided to cancel the applicant’s Class BF Transitional (Permanent) visa pursuant to s 501A of the Act.

3    The applicant, who was notified of the decision on 16 June 2011, seeks, by an amended application filed on 2 September 2011, the following relief:

1.    Pending the hearing and determination of this application, an interlocutory injunction requiring the respondent and his servants and agents to refrain from acting on the respondent’s decision and, in particular, to refrain from removing the applicant from Australia.

2.    A declaration that the respondent’s decision is invalid and of no effect.

3.    An order that a writ of certiorari issue quashing the respondent's decision.

4.    An order that a writ of prohibition issue restraining the respondent or any other person from acting on the respondent’s decision.

5.    An order that the respondent pay the applicant's costs of and incidental to the application.

6.    Such other or further order as the Court thinks fit.

gROUNDS

4    The grounds of the application are:

1.    The respondent’s decision is affected by jurisdictional error because the respondent failed to afford procedural fairness to the applicant.

Particulars

The respondent misunderstood or failed to hear the applicant’s submissions about the best interests of each of the applicant’s four grandchildren when he took into account relevant international obligations arising under the Convention on the Rights of the Child in relation to one grandchild only.

2.    The respondent’s decision is affected by jurisdictional error because the respondent failed to afford procedural fairness to the applicant.

Particulars

The respondent misunderstood or failed to hear the applicant’s submissions in relation to the International Covenant of Civil and Political Rights.

3.    The respondent’s decision is affected by jurisdictional error because the respondent failed to afford procedural fairness to the applicant.

Particulars

The respondent misunderstood or failed to hear the applicant’s submissions in relation to the unfairness caused to the applicant by the conduct of the respondent, his delegates or department who failed to correct advice given to the applicant in 2002 that the respondent had no power to cancel the applicant’s visa, notwithstanding that they knew since 2003 that the advice was no longer correct.

5    The application was supported by written submissions dated 2 September 2011.

6    The application was opposed. Submissions dated 23 September 2011 were filed in opposition.

fACTUAL BACKGROUND

7    The factual background to the application was undisputed.

8    The applicant, who was born on 22 February 1948 in the United Kingdom, migrated to Australia on 17 September 1967 with his parents, brother and sister.

9    In 1972, the applicant married an Australian. They had two daughters, born in 1974 and 1977.

10    On 15 March 1999 the applicant applied for Australian citizenship.

11    On 18 May 1999, an officer of the Department of Immigration and Multicultural Affairs, now known as the Department of Immigration and Citizenship (“the Department”), made a decision to approve the application for citizenship.

12    On 18 October 1999, however, the applicant was arraigned and pleaded guilty to eight criminal offences committed on 10 and 17 May 1999.

13    The applicant was convicted of the relevant offences, which included kidnap, blackmail and rape. Whilst impersonating a police officer, he kidnapped a young woman at gunpoint, handcuffed her, placed a hood over her head, and drove her to a shed that he had prepared in advance by padding the walls and bolting a chair to the floor. He tied her to the chair, blindfolded her, and placed headphones on her head to prevent her from hearing surrounding sounds. He then placed a realistic looking explosive device on the victim’s chest, took a photograph of her, and forced her to record a ransom demand to her parents. After leaving the victim in the shed for several hours while he made his ransom demand, he returned to the shed, cut the victim’s pants away, and raped and indecently assaulted her. He then left her in the shed again for several hours. The victim eventually freed herself from her bonds, screamed for help and was rescued from the shed.

14    On 19 November 1999 the applicant was sentenced to a period of 20 years imprisonment with a minimum non-parole period of 16 years.

15    On 18 August 2000 the Victorian Court of Appeal allowed the applicant’s appeal against sentence and reduced it to 15 years imprisonment with a minimum non-parole period of 12 years.

16    By a letter dated 28 August 2000, the Department advised the applicant that it was considering cancelling his visa.

17    By a letter dated 18 February 2002, the Department advised the applicant that, following a recent High Court decision, the Minister no longer had the power to deport him and was no longer considering cancelling his visa.

18    In 2003, the High Court, in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 (“Shaw”), held that British subjects who arrived after 26 January 1949 and have not become citizens are “aliens” for the purposes of the Act. Shaw established that, contrary to the Department’s advice to the applicant in February 2002, the Minister did have power to deport him. Nevertheless, neither the Minister or the Department, nor any delegate, notified the applicant in 2003 that as a result of the High Court’s decision in Shaw, he would now be vulnerable to deportation and it would appear that the applicant was not informed of that possibility until 2010.

19    By a Notice dated 4 June 2010, the Department advised the applicant that it was again considering cancelling his visa under s 501 of the Act. The applicant signed an acknowledgement of receipt form on 22 June 2010.

20    Written submissions (with supporting documents) dated 13 July 2010 by the applicant’s legal representative, Julian McMahon, were made on the applicant’s behalf.

21    Written submissions (with supporting documents) dated 31 January 2011 were made on the applicant’s behalf by Rob Daly of Victoria Legal Aid.

22    On 14 February 2011 the Minister’s delegate made a decision not to cancel the applicant’s visa (“the delegate’s decision”).

23    On 16 April 2011 the applicant, who had been granted parole at the earliest available date, was released from prison.

24    By a Notice dated 3 May 2011, the applicant was advised that the Minister intended to consider setting aside the delegate’s decision and using his personal power under s 501A(2) of the Act to cancel the applicant’s visa.

25    Further submissions (with supporting documents) were made by the applicant and on his behalf by Mr McMahon on 27 May 2011.

26    On or about 8 June 2011, the Department forwarded to the Minister a submission in confidence dated 8 June 2011 attaching an Issues Paper “outlining the relevant issues for your consideration” and a draft statement of reasons, which (should the Minister decide to use his power under s 501A(2) to set aside the delegate’s decision and cancel the applicant’s visa) could be annotated and signed if it adequately reflected the reasons, or amended to better reflect them.

27    The submissions in confidence set out some background facts.

28    The Issues Paper stated, inter alia:

To            Minister for Immigration and Citizenship

SUBJECT        CUNLIFFE, Leslie Neil (22 February 1948)

    Consideration of visa cancellation under subsection 501A(2) of the Migration Act 1958 (the Act).

PURPOSE    To provide information on this case and seek your decisions on:

-    whether Mr CUNLIFFE passes the character test at subsection 501(6) of the Act; and

-    if not, whether to cancel Mr CUNLIFFE’s Class BF Transitional (Permanent) visa under subsection 501A(2) of the Act.

RECOMMENDED ACTION    That you consider this Issues Paper and the attached documentation, then indicate your decision as to whether Mr CUNLIFFE’s visa should be cancelled under subsection 501A(2).

29    Under the heading “Issues for Consideration of Possible Visa Cancellation Under Subsection 501A(2) of the Migration Act 1958”, the Issues Paper set out:

PART A:    IMMIGRATION BACKGROUND

PART B:    NOTIFICATION TO VISA HOLDER / PROCEDURAL FAIRNESS

PART C:    CONSIDERATION OF VISA CANCELLATION – THE CHARACTER TEST

PART D:    NATIONAL INTEREST

PART E:    CONSIDERATION OF VISA CANCELLATION – EXERCISE OF YOUR DISCRETION

30    Under the heading “PRIMARY CONSIDERATIONS”, the Issues Paper set out “four primary considerations in the Direction” and references to relevant available evidence. (The Direction referred to was a “Direction under s 499 of the Act issued by former Minister Evans” and “[which] remains in effect, to guide delegates and the AAT in the exercise of the discretion whether to refuse or cancel a visa under section 501 on the ground that the visa holder does not pass the character test” (at [29]). The Issues Paper stated that the Direction did not apply to the exercise of the Minister’s power under s 501A(2), but it was open to him to be guided by factors there set out and to accord them whatever weight he considered appropriate).

31    The five primary considerations identified were:

(a)    protection of the Australian community;

(b)    risk that the conduct may be repeated;

(c)    whether the person was a minor when they began living in Australia;

(d)    length of time that a person has been ordinarily resident in Australia; and

(e)    international obligations.

32    The Issues Paper included, under “International Obligations”, discussions under “Best Interests of the Child” and “Obligations under the Refugees Convention and other relevant international obligations”.

33    Under the heading “Other (Non-Primary) Considerations”, the Issues Paper included discussions under “Relationships in Australia and any hardship to others which may result from removal of the person”, “Age/Health issues of person”, “The person’s links to the country to which they would be removed and the difficulties which may face them there” and “Whether the person has previously been formally advised about the consequences of their conduct for migration purposes.”

34    Part E of the Issues Paper set out the attachments thereto, which relevantly included Attachment O (“Submissions from Rob Daly of Victoria Legal Aid, dated 31 January 2011”), Attachment T (“Submissions from Julian McMahon of Gorman Chambers, dated 13 July 2010”) and Attachment NN (“Further submissions from Mr CUNLIFFE’s legal representative, Julian McMahon of Gorman Chambers, dated 27 May 2011”), which were made on behalf of the applicant.

35    The Issues Paper made no recommendation as to the decision which the Minister, in the exercise of his discretion, should reach. It was not provided to the applicant prior to the Minister’s decision.

36    On 10 June 2011, the Minister decided to exercise his personal power under s 501A(2) of the Act to set aside the delegate’s decision and to cancel the applicant’s Class BF Transitional (Permanent) visa. The Minister signed a document entitled “VISA CANCELLATION UNDER SUBSECTION 501A(2) OF THE MIGRATION ACT 1958 – DECISION BY THE MINISTER FOR IMMIGRATION AND CITIZENSHIP” dated 10 June 2011, which stated:

I have considered all relevant matters including an assessment of the character test as defined by subsection 501(6) of the Migration Act 1958, Ministerial Direction 41 made under section 499 of that Act and all evidence before me, including that provided by, on behalf of, or in relation to Leslie Neil CUNLIFFE in connection with the possible cancellation of his Class BF Transitional (Permanent) visa.

…

Cancellation outcome

(d)    I reasonably suspect that Mr CUNLIFFE does not pass the character test and Mr CUNLIFFE has not satisfied me that he passes the character test and I am satisfied that cancellation of his visa is in the national interest. I have decided to exercise my discretion under subsection 501A(2) to set aside the original decision of my delegate not to cancel Mr CUNLIFFE’s visa and to cancel Mr CUNLIFFE’s visa. I hereby cancel Mr CUNLIFFE’s Class BF Transitional (Permanent) visa. My reasons for this decision are set out in the attached Statement of Reasons.

Chris Bowen

Minister for Immigration and Citizenship

Date: 10/06/11

37    The Minister also signed a Statement of Reasons dated 10 June 2011, which stated:

This statement relates to the Class BF Transitional (Permanent) visa held by Mr CUNLIFFE at the time of my decision. Any other visas held by the visa holder (other than a protection visa or a visa specified by regulations, neither of which are relevant here) will be cancelled by operation of law, pursuant to subsection 501F(3) of the Act.

1.    On 10 February 2011 my delegate reasonably suspected that Mr CUNLIFFE does not pass the character test and was not satisfied that he, Mr CUNLIFFE, passes the character test. However, he decided NOT to exercise his discretion under subsection 501(2) of the Act to cancel Mr CUNLIFFE’s visa but decided to warn Mr CUNLIFFE about his conduct in relation to subsection 501(2).

CHARACTER TEST

2.    On 19 November 1999 Mr CUNLIFFE was convicted and sentenced in the Supreme Court of Victoria of the following offences. The sentences were varied in the Supreme Court of Victoria - Court of Appeal on 18 August 2000 as follows:

•    Kidnapping - sentenced to six years imprisonment

•    Rape - sentenced to six years imprisonment

•    Blackmail - sentenced to five years imprisonment

•    False Imprisonment (Common Law) - sentenced to four years imprisonment

•    Bomb Hoax-Make Statement/Convey Info - sentenced to two years imprisonment

•    Carry Firearm Whilst Commit Ind/Offence - sentenced to two years imprisonment

•    False Imprisonment (Common Law) - sentenced to one year imprisonment

•    Indecent Assault - sentenced to one year imprisonment.

As a result of these sentences of imprisonment, Mr CUNLIFFE has a substantial criminal record within the meaning of subsection 501(7) of the Act. I find that due to his substantial criminal record he does not pass the character test under paragraph 501(6)(a) of the Act.

National Interest

3.    I am satisfied that it is in the national interest that the visa held by Mr CUNLIFFE be cancelled under subsection 501A(2). In making this determination I gave consideration to a number of factors, including the seriousness and nature of the crimes committed by Mr CUNLIFFE listed above.

4.    I took into account that the offences of which Mr CUNLIFFE was convicted on 19 November 1999 are of a serious and particularly heinous nature, in that they involved him kidnapping and falsely imprisoning a young woman and taking advantage of her, whilst defenceless and deprived of her liberty, for his own sexual gratification.

5.    I also took into account the judges’ comments that Mr CUNLIFFE's crimes “create fear and abhorrence in the community”, and that “the general revulsion of the community at large at such crimes” cannot be ignored.

6.    I have noted and acknowledged that Mr CUNLIFFE did not have an extensive prior criminal history, that forensic assessments of Mr CUNLIFFE’s psychological state suggest that he was suffering from depression and suicidal thoughts before and at the time of these offences and that the suicidal thoughts continued while he was incarcerated. I further note his legal representative's claims that he has a supportive family here in Australia and is at low risk of re-offending, and a psychologist's assessment that also concludes that he is at low risk of re-offending. I have also borne in mind that the consequences of any further offending of a similar nature to that he has already committed would be extremely grave.

7.    Having regard to these considerations, I am satisfied that the cancellation of Mr CUNLIFFE's visa is in the national interest.

DISCRETION

8.    Having found that Mr CUNLIFFE does not pass the character test and that it would be in the national interest to cancel his visa, I carefully assessed all of the information set out in the Issues Paper and considered whether to exercise my discretion to set aside my delegate's decision and to cancel Mr CUNLIFFE's visa. In doing so, I had regard to the considerations in Ministerial Direction No. 41 - Visa refusal and cancellation under section 501 ("the Direction") - in so far as I believed it to be relevant to the exercise of my powers under subsection 501A(2). While the Direction does not apply to the exercise of my powers under section 501A and in any event does not bind me, I considered that the matters set out in Part B of the Direction provide useful guidance for the exercise of my discretion under subsection 501A(2).

Primary Considerations

9.    I gave primary consideration to the protection of the Australian community, (taking into account the seriousness and nature of the conduct and the risk that the conduct may be repeated), the age at which the person commenced living in Australia, the length of time that the person has lived in Australia and any relevant international obligations.

Protection of Australian Community

Seriousness and nature of conduct

10.    I noted that the offences above of which Mr CUNLIFFE has been convicted include Rape and Indecent Assault which are crimes of violence and of a serious sexual nature, as well as Blackmail, Kidnapping and False Imprisonment (Common Law), all of which are of types listed in paragraphs 10.1.1(2)(c), (d) and (l) of the Direction as being of particular concern, and for which Mr CUNLIFFE has been penalised by substantial terms of imprisonment and sentenced as a serious sexual offender.

11.    I further noted that the crimes occurred when Mr CUNLIFFE took advantage of a vulnerable victim and were thus also abhorrent to the Australian community, according to the Direction.

12.    I took into account the forensic assessment of Mr CUNLIFFE's psychological state at the time and before the offences as well as his personal circumstances particularly the financial and marital problems, and that he is reported to have shown remorse particularly with respect to the sexually based offending.

Risk that the conduct may be repeated

13.    I have noted that Mr CUNLIFFE did not have an extensive criminal history prior to the offences committed in May 1999.

14.    I further noted that there is no record that he has breached any judicial orders.

15.    I have noted that in the appeal judgment of 18 August 2000, the judge remarked that in custody Mr CUNLIFFE was regarded as suicidal and that prison reports list an incident of self harm.

16.    I note claims made by Mr CUNLIFFE's legal representative that Mr CUNLIFFE is a low risk of re-offending because of his employment history, family support and insight he has shown into his offending behaviour through ongoing counselling whilst in custody.

17.    I have taken into account the psychological assessment of Mr CUNLIFFE, the various supporting statements from Mr CUNLIFFE as well as evidence of work and educational courses that Mr CUNLIFFE has completed.

Age on commencing residence in Australia

18.    As Mr CUNLIFFE commenced residence in Australia at the age of 19, this consideration is not relevant in this case.

Length of residence in Australia

19.    I have noted that Mr CUNLIFFE has lived in Australia for over 43 years. I further noted that 11 years and six months of that period have been spent in prison. I noted that his first offending occurred in 1974, seven years after arriving in Australia and that he did not offend again until May 1999.

20.    I have noted that Mr CUNLIFFE has been gainfully employed and has operated his own business prior to his custodial term. I have also noted that he has found employment since his release in April 2011.

International Obligations

Best Interests of the Child

21.    I have noted that Mr CUNLIFFE has a grandson and indicated that he is very close to him and helped to raise him for about five years while his daughter was unable to care for her child due to a drug addiction. I note further that his grandson has been in the care of his biological parents since the late 1990s.

22.    The evidence available to me does not indicate that there are any other minor children whose best interests may be significantly affected by the cancellation of Mr CUNLIFFE's visa.

Other International Obligations

23. I note that Mr CUNLIFFE has not made any claims which require assessment in relation to Australia's international non-refoulement obligations, nor does the other available evidence indicate that such an assessment is appropriate in this case.

24.    I also note the submissions dated 27 May 2011 made on Mr CUNLIFFE's behalf by his legal representative in relation to the International Convention on Civil and Political Rights (ICCPR). However, I do not consider that the claims support a finding that Australia is at any risk of breaching its international non-refoulement obligations under the ICCPR or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Other (non-primary) Considerations

25.    I note that Mr CUNLIFFE is divorced and not in a relationship at present, though he is on amicable terms with his ex-wife, who has provided supporting statements on his behalf. I also note that he has two Australian citizen daughters aged 33 and 36, as well as three other grandchildren in addition to the grandson mentioned above and I take in account one daughter's plea for his visa not to be cancelled.

26_    I noted that Mr CUNLIFFE has other family in Australia including his elderly mother, a brother and a sister who have provided letters of support as well as several uncles, aunts, cousins, nieces and nephews.

27.    I noted that Mr CUNLIFFE has undertaken to provide primary care for his elderly mother upon his release from prison. I noted further that at present Mr CUNLIFFE is resident in a suburb of Melbourne while his mother lives in Corio, a suburb of Geelong.

28.    I have taken into account that Mr CUNLIFFE is 63 years old and suffers from "chronic dysthymia" and that he indicates that he is on prescription medication for depression and asthma, and that he receives weekly psychological counselling. I have also noted that Mr CUNLIFFE has a history of mental health issues, amongst them self harm and suicide attempts.

29.    Mr CUNLIFFE indicates that he no longer knows of or has "any friends and relatives of any kind in the UK", and that he "will have no where to stay, no income and no way of getting medical assistance for my asthma", should he be removed to his country of nationality.

30.    I note that, prior to the decision of my delegate on 10 February 2011 to warn Mr CUNLIFFE about his conduct in relation to subsection 501(2), Mr CUNLIFFE had not previously been formally advised about the consequences of his conduct for migration purposes.

CONCLUSION

31.    I have considered all relevant matters including (1) an assessment against the character test as defined by subsection 501(6) of the Act, (2) whether cancelling Mr CUNLIFFE's visa is in the national interest, (3) whether to exercise my discretion to set aside my delegate's decision and to cancel Mr CUNLIFFE's visa, (4) Ministerial Direction 41 under section 499 of that Act, as I considered appropriate, and (5) all other evidence available to me, including evidence provided by, or on behalf of Mr CUNLIFFE.

32.    In reaching my decision, I concluded that it was in the national interest to cancel Mr CUNLIFFE's visa. This was primarily because of the particularly serious nature of the relevant offences and the circumstances in which they occurred, and bearing in mind that, while there are indications that the risk of Mr CUNLIFFE re-offending probably is low, the consequences of any further offending of a similar nature to that he has already committed would be extremely grave. In particular, I bore in mind that Mr CUNLIFFE's crimes created fear and abhorrence as well as general revulsion in the community. I find that the national interest considerations outweigh Mr CUNLIFFE's family and other links with Australia formed during his over 43 years of residence in this country, and any other countervailing factors identified above.

33.    Having given full consideration to all of these matters, I decided to exercise my discretion to set aside my delegate's decision of 10 February 2011 and to cancel Mr CUNLIFFE's Class BF Transitional (Permanent) visa under subsection 501A(2).

38    The applicant was notified of the Minister’s decision by a letter dated and hand-delivered on 16 June 2011.

rELEVANT LEGISLATION

39    Section 501A of the Act provides:

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister—natural justice applies

(2)    The Minister may set aside the original decision and:

(a)    refuse to grant a visa to the person; or

(b)    cancel a visa that has been granted to the person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

(e)    the Minister is satisfied that the refusal or cancellation is in the national interest.

Action by Minister—natural justice does not apply

(3)    The Minister may set aside the original decision and:

(a)    refuse to grant a visa to the person; or

(b)    cancel a visa that has been granted to the person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

(4)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

(4A)    Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.

Minister’s exercise of power

(5)    The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

Decision not reviewable under Part 5 or 7

(7)    A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.

40    Section 476A of the Act relevantly provides:

(1)    Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

…

(c)    the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or

…

(2)    Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

discussion

41    It was common ground that, on the basis of the High Court decisions in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2002) 211 CLR 441, a decision that involves the failure to comply with the principles of natural justice is not a privative clause decision because it is not a decision made “under” the Act. However, pursuant to s 476A(1)(c), the Federal Court has original jurisdiction in relation to a purported privative clause decision made, relevantly, under s 501A. It was not disputed that in the present case, if the Minister failed to afford procedural fairness, the relevant decision would be a purported privative clause decision affected by jurisdictional error, on the basis of which a writ of prohibition may issue.

42    Where the applicant has established an entitlement to the grant of prohibition, certiorari can be granted as an ancillary remedy to a grant of relief under s 75(v) of the Constitution (see Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2007) 157 FCR 260 at 278).

Parties’ submissions

43    The applicant submitted that:

A Commonwealth officer who denies procedural fairness in the exercise of a statutory power exceeds jurisdiction in a manner that is capable of attracting the constitutional writ of prohibition (Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82). When a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment (Annetts v McCann (1990) 170 CLR 596). The exercise of the Minister’s power under s 501A(2) is conditioned upon the observance of procedural fairness.

44    The respondent expressly accepted the above principles, including the submission that the power conferred by s 501A(2) is qualified by the requirement to afford procedural fairness. The respondent also accepted that if want of procedural fairness were established, the applicant should not be refused relief on discretionary grounds.

45    It was common ground that the applicant had not passed the character test defined in s 501(6) and (7) of the Act. Nor did the applicant contend that it was not open to the Minister to be satisfied that it was in the national interest to cancel his visa. The applicant acknowledged that the court, in the context of judicial review, was not concerned with the merits of the decision and that, as stated in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (“SZJSS”) at [36], the legal principles concerning procedural fairness operate only to ensure that the process of decision-making is fair.

46    The applicant alleged that he was denied procedural fairness in the treatment of three particular submissions made on his behalf. Each particular complaint is underpinned by the applicant’s fundamental contentions on the requirements for a fair and unbiased hearing consonant with procedural fairness for a decision under s 501A of the Act.

47    The applicant’s case, as presented at the hearing, amplified and in some respects diverged from that advanced in written submissions. In the written submissions, the applicant contended that a fair and unbiased hearing, as an essential element of procedural fairness, required not only an opportunity to be heard, but also required the decision-maker both to consider and to understand the claims and submissions of the affected person.

48    The applicant submitted that, even where an opportunity to make submissions was afforded, procedural unfairness, and hence, jurisdictional error, would result if the decision-maker misconceived or misunderstood the applicant’s submissions, which was tantamount to denial of a hearing; or alternatively (although no misunderstanding by the decision-maker were established) if the procedure entailed a substantial risk of such a misunderstanding or misconstruction and the decision-maker provided no satisfactory explanation of how that risk was overcome.

49    The applicant conceded that in the present case, he was invited and afforded the opportunity to make submissions, that all the relevant submissions were provided to the Minister attached to the Issues Paper, and that the Minister expressly stated that he had considered “all relevant matters” and “all evidence before me, including that provided by, on behalf of, or in relation to” Mr Cunliffe in connection with the possible cancellation of his visa. The applicant also conceded that the Minister was not obliged to accept his submissions nor to deal with every non-substantial submission in his statement of reasons.

50    At the hearing, counsel for the applicant submitted, however, that procedural unfairness and hence jurisdictional error were established in relation to three specified submissions on one or more of the following bases:

(a)    The Minister’s reasons demonstrated his misunderstanding of (or failure to consider) some of the applicant’s substantive submissions.

(b)    The Issues Paper contained distortions, mischaracterisations or misunderstandings of some of the applicant’s submissions and, as the Issues Paper was not a mere competing submission, but rather, served “an elevated purpose” of purporting impartially to synthesise and analyse material, the Issues Paper in this case effectively disabled the Minister from adequately or properly considering the applicant’s submissions.

(c)    Alternatively, irrespective of whether the applicant could establish that the Minister misunderstood or misconceived the relevant submissions or that the Issues Paper, by its mischaracterisations, disabled him from properly considering them, there was a sufficiently substantial risk of such misunderstanding or disablement. That risk was not addressed by providing the original submissions to the Minister or by the Minister’s statement that he had considered all evidence on behalf of the applicant.

51    Before me, counsel for the applicant did not contend that the use of an Issues Paper in itself constituted, contrary to procedural fairness, a “disabling” impediment to the Minister’s consideration of submissions, or that it would be necessary to provide the applicant with an Issues Paper for comment prior to the decision in every case. Counsel nevertheless submitted that the failure to provide the Issues Paper to the applicant for comment in this case was an additional instance of procedural unfairness, as it contained adverse material which the applicant had no opportunity to address.

52    Section 501G of the Act relevantly provides:

(1)    If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:

(a)    refuse to grant a visa to a person; or

(b)    cancel a visa that has been granted to a person;

the Minister must give the person a written notice that:

…

(e)    sets out the reasons (other than non-disclosable information) for the decision;

…

53    It was not, however, a ground of complaint, and the applicant did not allege, that the Minister’s reasons were inadequate. Indirectly, however, the necessary content and quality of reasons under s 501G were relevant, as the applicant contended that statements and omissions in the reasons supported the inference that the Minister did not consider or understand and hence hear his submissions, or alternatively, established that the risk thereof could not be excluded.

54    The applicant contended that the Minister’s assertion that he had considered the applicant’s evidence could not be taken at face value, as the reasons indicated that he had considered the mischaracterisations of the applicant’s submissions allegedly contained in the Issues Paper or in other instances had otherwise misunderstood or failed altogether to consider them.

55    At the hearing, counsel for the applicant conceded that the Minister’s reasons need not address every minor aspect of an applicant’s submissions, but at one point, apparently contended that the Minister must deal or grapple with all substantial submissions in such a way as to satisfy the reader that he had actually considered them. Counsel submitted that the Minister was obliged, “having received the submissions, to deal with [their] substance”, and the applicant was entitled to have his case decided on the basis on which he presented it.

56    Ultimately, and perhaps inconsistently, counsel for the applicant conceded that the Minister, pursuant to the broad discretion under s 501A, was not obliged to take into account any particular factor, nor expressly to state that he had taken into account a particular submission but had decided that it was not relevant, and could give it no weight. Counsel submitted that the Minister at least had to turn his mind to a submission in the sense of hearing it.

57    The respondent, while acknowledging that procedural fairness required the Minister to hear and to consider the applicant’s submissions, contended that it did not oblige the Minister to understand them. While a failure to understand a particular submission might, in some circumstances, constitute error, it would not amount to a breach of procedural fairness. The respondent also disputed that an applicant was entitled to have a case decided under s 501A on the grounds he or she presented. To the contrary, in the respondent’s submission, the Minister was entitled, subject to affording procedural fairness, to exercise the power under s 501A on such basis as he chose.

58    The only two mandatory matters to be considered as a precondition of the power were an unsatisfied reasonable suspicion that the applicant did not pass the character test and satisfaction as to the national interest. The respondent submitted that in such a context, the Minister’s reasons were required only to record the matters he regarded as relevant to, and operative in, his decision, which would not necessarily include any matters relied on or submitted by the applicant. In particular, the Minister was not obliged to take particular submissions into account, to grapple or engage with them, or to demonstrate that he had done so in his reasons, by, inter alia, explaining any rejection.

59    Alternatively, the respondent submitted that the applicant failed, in any event, to establish procedural unfairness in this case, because the alleged mischaracterisations, misconstructions or distortions in the Issues Paper could not be established, and there was no basis in the Minister’s reasons or otherwise to infer that he had not considered the applicant’s submissions in accordance with his statement or had failed to understand them.

60    The applicant conceded that the use of Issues Papers was well-established and did not in itself amount to procedural unfairness. The respondent submitted that it could not be tenably contended that the Issues Paper in this case (even if it did mischaracterise the relevant submissions) either disabled the Minister from considering or understanding the applicant’s submissions or posed a risk thereof, because the primary material was provided to the Minister in full, was specifically referred to in the sections of the Issues Paper containing the alleged mischaracterisations, and the Minister stated that he had considered the material.

Relevant authorities

61    The applicant cited no direct authority to support his submission that procedural fairness required the Minister, in making a decision under s 501A of the Act, to hear, understand and respond to the applicant’s submissions. The applicant relied principally on statements of Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 (“Dranichnikov”), which although decided in relation to a different statutory regime, were submitted to apply equally to a decision under s 501A of the Act.

62    In Dranichnikov, the applicant claimed refugee status on the ground of a well-founded fear of persecution due to his claimed membership of a group of businessmen in Russia who publicly criticised law enforcement authorities for failing to take action against crime or criminals. The Refugee Review Tribunal found against the applicant, as he could not establish that any persecution was based on his membership of the social group of businessman in Russia generally.

63    In Dranichnikov, the High Court majority held that the applicant was entitled to discretionary relief under s 75(v) of the Constitution, as the tribunal’s failure to decide a question necessary for its task had denied him natural justice and was a constructive failure to exercise jurisdiction.

64    Gummow and Callinan JJ (with whom Hayne J agreed) held that the tribunal misstated and failed to deal with the case presented to it.

65    Their Honours did not, in terms, state that natural justice required the tribunal to understand the applicant’s claim or that a misunderstanding of the basis on which the claim was put would constitute procedural unfairness. Rather, they stated that a failure to respond to a substantial argument was a failure to accord natural justice, as follows (at [24]):

To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.

66    Their Honours stated that although a “failure to accord natural justice did not provide a statutory basis for a review of a decision of the tribunal”, what occurred amounted to a constructive failure to exercise jurisdiction (at [24]-[25]).

67    They described the tribunal’s task as entailing a number of steps, including determination of an initial question whether the class to which the applicant claimed to belong was capable of constituting a social group for the purposes of the Convention. Their Honours identified the tribunal’s error as follows (at [27]):

The tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov’s membership of a social group, namely, of “businessmen in Russia” was reason for his persecution and relevantly nothing more.

68    Hayne J stated that the tribunal failed to exercise jurisdiction because “it did not consider the claim which the applicant was then making, and had earlier made, for protection” (at [95]).

69    As the respondent submitted, under the statutory regime at issue in Dranichnikov, it was mandatory for the Refugee Review Tribunal to consider each basis of a person’s claim to have a well-founded fear of persecution. As Finkelstein J subsequently explained in SZDGC v Minister for Immigration and Citizenship and Anor (2008) 105 ALD 25 at [14], the approach of Gummow and Callinan JJ in Dranichnikov was:

consistent with several previous decisions in the Federal Court. For example in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42], Allsop J (with whom Spender J agreed) said:

[42] The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act … make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.

70    In contrast, the claims advanced by an applicant are not mandatory considerations in the Minister’s exercise of the power conferred by s 501A(2) of the Act. In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [126] (citing Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375), Heydon and Crennan JJ, with whom Gleeson CJ also agreed, stated as follows in relation to the analogous discretion to cancel a visa under s 501(2) of the Act:

[W]here relevant considerations are not specified, it is largely for the decision-maker, in the light of the matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.

71    Their Honours (at [127]) approved a decision of the Full Court of this court in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505, which held that:

[G]iven the breadth of 501, it is not possible to imply into the Act “some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed.”

Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia.

72    In such a context, I am not persuaded that the Minister is obliged to “deal with” all the applicant’s substantive submissions in relation to the exercise of that power, including matters the Minister has decided not to rely upon and to refer to, and explain reasons for any rejection of, all non-peripheral submissions. Although the Minister must consider any submissions that are made, he or she is not required to address matters that are not considered relevant.

73    Therefore, it does not follow from the statement of Gummow and Callinan JJ in Dranichnikov that the failure of the Refugee Review Tribunal reviewing a decision under s 414 of the Act “to respond to a substantial, clearly articulated argument relying on established facts was at least to fail to accord [natural justice]” that procedural fairness requires the Minister, exercising power under s 501A(2) of the Act, to understand the applicant’s submissions, to set them out accurately or at all in the reasons, or to respond to them, including by assigning reasons for rejection.

74    The applicant submitted that the principle in Dranichnikov was not restricted to statutory regimes where the decision-maker was required to address mandatory considerations, but had been applied by the High Court in Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 (“Plaintiff M61”), in relation to s 46A(2) of the Act, which conferred a power which, like s 501A(2), was discretionary both in its exercise and the consideration of whether to exercise it.

75    For the purposes of consideration of the exercise of the Minister’s power under s 46A(2) of the Act a “non-statutory” process was established whereby the Department assessed whether Australia owed protection obligations to an applicant under the Refugees Convention, subject to a review by an independent contractor. If it were concluded that Australia owed protection obligations, the Department prepared a submission to the Minister for consideration of the exercise of power under either s 46A or s 195A(2) of the Act. In Plaintiff M61, a reviewer considered only one set of claims on which one plaintiff claimed refugee status, and did not refer to another set of claims.

76    The High Court observed that exercise of the power to “lift the bar” under s 46A “on the footing that Australia owed protection obligations to the plaintiff would be pointless unless that determination was made according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia” (at [88]). It concluded at [90], citing Dranichnikov, that failing to address one of the plaintiff’s claimed bases for his fear of persecution was a denial of procedural fairness, because “the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered: whether Australia owed the plaintiff protection obligations”.

77    As the respondent submitted, the process of evaluation of claims and review in Plaintiff M61 paralleled the process at issue in Dranichnikov, and the Minister’s decision was predicated on implied, if not express, relevant considerations, about which he had sought to be informed. The decision in Plaintiff M61 was not therefore a persuasive basis for holding that statements in Dranichnikov apply to decisions under s 501A(2) of the Act by requiring the Minister, as a matter of procedural fairness, to address all of an applicant’s substantive claims and in such manner as to demonstrate that they were accurately understood.

78    The respondent submitted that if the reasoning in Dranichnikov applied in this context, the Minister’s failure to understand and hence respond to particular submissions (if established) would not amount to jurisdictional error, because it was not a “fundamental mistake at the threshold” or a “basic misunderstanding” of the case (Dranichnikov at [87]-[88]).

79    The respondent relied on Kirby J’s statement in Dranichnikov at [88] that:

it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flow is so serious as to undermine the lawfulness of the decision in a fundamental way.

80    The applicant submitted that Kirby J’s statement was in conflict with McHugh J’s approach in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [83], where his Honour stated:

[W]here the relevant breach is the failure to observe fair decision-making procedures, the bearing of the breach upon the ultimate decision should not itself determine whether the constitutional writs of certiorari and mandamus should be granted. If there has been a breach of the obligation to accord procedural fairness, there is jurisdictional error for the purposes of s 75(v)…

81    McHugh J’s statement was directed to whether discretionary relief should be withheld for a breach of s 424A(1) of the Act by failing to provide information to an applicant. While it was conceded that a breach of s 424A(1) of the Act was jurisdictional error, the respondent claimed that a merely technical breach, that could not affect the outcome, had occurred.

82    In contrast, Kirby J’s statement in Dranichnikov was directed at the antecedent issue of distinguishing an error of law within jurisdiction from a jurisdictional error. I was not persuaded that the relevant observations were in conflict.

83    As I have found, for reasons set out in detail below, that the applicant has failed to establish that the Minister misunderstood the relevant submissions, it is unnecessary to determine whether the alleged misunderstandings, mischaracterisations or omissions amounted to a fundamental error in defining the applicant’s case, sufficient, in Kirby J’s terms, to constitute jurisdictional error.

84    The applicant also relied particularly on NAIS v Minister for Immigration and Multicutural and Indigenous Affairs (2005) 228 CLR 470 (“NAIS”) in contending that, in the present case, mischaracterisations in the Issues Paper amounted to a defect in procedure, which either thwarted the Minister’s consideration of some of the applicant’s submissions or constituted a substantial risk which was not overcome, but rather, was reinforced by the content of the reasons.

85    In NAIS, the Refugee Review Tribunal rejected the applicants’ application for protection visas. The tribunal held oral hearings in 1998 and 2001 and handed down its decision in 2003. It made some findings adverse to the applicants’ credit, apparently based on their demeanour. A majority (Gleeson CJ, Callinan and Heydon JJ) of the High Court held that the tribunal’s decision was affected by jurisdictional error.

86    Gleeson CJ observed that four and a half years which elapsed between the tribunal’s observations of the applicants’ demeanour and its adverse credit findings thereon amounted to inordinate delay. As the tribunal’s reasons ignored the question of the time elapsed between the taking of evidence and its final assessment, the impact of the delay could not be known.

87    His Honour stated at [9]: “[w]hat must be kept in mind is that the question concerns the fairness of the procedure that was followed”.

88    Gleeson CJ further stated at [10] and [11]:

In a case of failure to give a hearing when a hearing is required, the person complaining of denial of procedural fairness does not have to demonstrate that, if heard, he or she would have been believed. The loss of an opportunity is what makes the case of unfairness. The appellants in this case do not have to demonstrate that the Tribunal’s assessment of them probably would have been more favourable if made reasonably promptly. What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal’s capacity to make a proper assessment of their sincerity and reliability. The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal’s capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal.

The fact that the impairment resulted from the default of the Tribunal is important. Many events, outside the control and influence of the Tribunal, might occur to make it more difficult to evaluate the claims of an applicant. That does not make the procedure unfair. On the other hand, when the Tribunal, exercising the control over its own procedures given to it by the Act, without explanation or justification, and without any fault of an applicant for review, draws out those procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, and there is nothing in the Tribunal’s reasons to displace that likelihood, then a case of procedural unfairness arises.

89    Callinan and Heydon JJ discussed the applicable statutory framework and observed (at [171]) that, as the respondent conceded, s 425(1) of the Act “by implication, refers to a hearing where the evidence given is to be given proper, genuine and realistic consideration in the decision subsequently to be made…”

90    In response to the argument that delay would breach the principles of natural justice only where it denied an interested party a proper opportunity to present its case, their Honours stated (at [172] and [173]):

The answer to these arguments is that unfairness can spring not only from a denial of an opportunity to present a case, but from denial of an opportunity to consider it. Failure by the Tribunal to consider a case can arise not only from obstruction by the Tribunal of its presentation but also from self-disablement by the Tribunal from giving consideration to that presentation by permitting bias to affect its mind: either way the case is prevented from having a fair impact on the Tribunal’s mind. Another way in which the Tribunal can disable itself from giving consideration to the presentation of a case arises where it permits so much time to pass that it can no longer assess the evidence offered. That is what happened here. The first respondent contended that the appellants could not succeed in the absence of findings that “delay by the Tribunal actually resulted in a material failure to analyse the oral evidence of the Appellants”. That finding ought to be made because it can be inferred from the delay that, in the absence of contrary evidence, the Tribunal had deprived itself of its capacity to do so, and there is no contrary evidence.

The circumstances of this case are specific to the Refugee Review Tribunal.

91    Their Honours also observed that “[t]his is in our opinion a very exceptional case” (at 174]).

92    The applicant submitted that in the present case, the mischaracterisation in the Issues Paper was a defect in the process that, as in NAIS, impeded or obstructed the Minister from considering the relevant submissions.

93    The applicant nevertheless acknowledged that:

Some caution must attach to the use of the phrase ‘consideration’ to avoid ‘a slide into impermissible merits review’. What is of concern is whether there was some failure of process that impeded or prevented the hearing of the submissions, such that in effect they weren’t heard at all. That might be because the decision-maker misunderstood the submission or asked themselves the wrong question (as in Dranichnikov); or failed to hear the submission at all; or because of some other procedural issue (such as the delay in NAIS).

94    In NAIS, while the majority held that a jurisdictional error had been made, each of the majority judgments identified, as central to a denial of procedural fairness, an error, flaw or “self-disablement” in the process followed by the tribunal. Callinan and Heydon JJ recognised that whether the delay had vitiated the decision depended on “the statutory framework under which the decision is to be made” (at [156]). Their specific observation was grounded in the acknowledged requirements of a hearing under s 425(1) of the Act. Gleeson CJ said (at [9]): “What must be kept in mind is that the question concerns the fairness of the procedure that was followed.” His Honour continued (at [10]): “What they [the applicants] have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal’s capacity to make a proper assessment of their sincerity and reliability”. Kirby J also emphasised that procedural fairness is not concerned with the merits of the decision and stated that “the “decision” was not reached by a process that was procedurally fair and just to the appellants” (at [102]).

95    The respondent submitted that:

18.    The reference by Callinan and Heydon JJ to the “denial of an opportunity to consider” the case does not go so far as to suggest that a misunderstanding of a submission is sufficient to constitute a denial of procedural fairness, unless that misunderstanding is a direct result of a procedural failure.

19.    Furthermore, their Honours’ formulation was not adopted by any other member of the Court in NAIS, and caution has subsequently been expressed about the language used.

96    In Swift v SAS Trustee Corp [2010] NSWCA 182, Basten JA (with whom Allsop P agreed) observed that the origins of the phrase “proper, genuine and realistic consideration” used by Callinan and Heydon JJ in NAIS lay in merits review, and observed at [47] that “[t]he use of such language in administrative law is not common, no doubt in large part because of the risks of misapplication.”

97    Basten JA stated at [45]:

The language of “proper, genuine and realistic consideration” was introduced into administrative law in Khan v Minister for Immigration, Local Government and Ethic Affairs (1987) 14 ALD 291 and Broussard v Minister for Immigration and Ethnic Affairs (1987) 21 FCR 472 at 483 (Gummow J). That which had to be properly considered was “the merits of the case”. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277 at [79] … Where a decision-maker does address the claim, by reference to the correct power, asking whether he or she did so “properly” or “genuinely”, or “realistically” may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process.

98    In SZJSS, the High Court reiterated Bastan JA’s caveat, in recognising that the Federal Court had “employed the language” of the need for a “proper, genuine and realistic consideration” to register its emphatic disagreement with the tribunal’s factual findings, rather than the process by which it arrived at its conclusions (at [36]).

99    In the context of a decision under s 501A of the Act, insistence on the Minister’s “proper, genuine and realistic consideration” of the applicant’s submissions should not extend to a requirement that the Minister demonstrate accurate understanding of the submissions, and thus provide the basis for a merits review.

100    In my opinion, the recognition in NAIS that a procedural defect within the decision-maker’s control, which denies, or poses a substantial risk of denial of, an opportunity to consider an applicant’s submission, was not restricted to any particular statutory regime, and could potentially apply to a decision under s 501A of the Act. For the reasons set out below, however, no such procedural flaw was established in this case.

Ground 1

The respondent’s decision is affected by jurisdictional error because the respondent failed to afford procedural fairness to the applicant.

Particulars

The respondent misunderstood or failed to hear the applicant’s submissions about the best interests of each of the applicant’s four grandchildren when he took into account relevant international obligations arising under the Convention on the Rights of the Child in relation to one grandchild only.

101    It was not disputed that:

(a)    the evidence before the Minister indicated that (which was uncontested) the applicant had four grandsons, aged between 5 and 18, the eldest of whom, Joe Dean, had been cared for by the applicant and his wife; and

(b)    the applicant’s daughter, the mother of the children, asserted that all the four children would suffer from his absence were he to be deported and would be deprived of the chance to build a family relationship with him.

102    The Minister, in his statement of reasons, referred to the circumstances of Joe Dean and then stated that “the evidence available to me does not indicate that there are any other minor children whose best interests may be significantly affected by the cancellation of Mr CUNLIFFE’s visa”.

103    The applicant submitted that:

7.5.    In making his finding that the evidence available to him did not indicate that there are any other minor children, other than Joe-Dean, whose interests were to be considered when considering Australia’s CROC obligations, the Respondent either:

7.5.1.    misunderstood or misapplied the law, or applied it in a manner that was inconsistent with the Applicant’s legitimate expectation;

7.5.2.    failed to deal with or otherwise misunderstood the Applicant’s claim that the Respondent was obliged to consider, pursuant to Australia’s CROC obligations, the best interests of all four of his grandchildren who would be adversely affected by his removal…

104    Alternatively, the applicant submitted that the Minister was mistaken as to a relevant factual matter, because he was not aware that there were a number of minor children (rather than Joe Dean only) who were liable to be affected by his decision. The applicant was thus denied procedural fairness because his submissions in relation to those other children were not dealt with at all.

105    Alternatively, the applicant submitted that if the Minister understood that there were other minor children, he elected “in a manner inconsistent with expectation” not to take their interests into account, which resulted in real, practical unfairness, as the applicant was denied an opportunity to be heard on it.

106    I reject those submissions. On a fair reading of the reasons, there was no indication that the Minister mistakenly considered that Joe Dean was the applicant’s only grandchild. To the contrary, the Minister, having referred to Joe Dean in paragraph 21, then stated in paragraph 22 that the evidence did not indicate that there were any other minor children whose best interests may be significantly affected, and in paragraph 25 stated that the applicant had “three other grandchildren in addition to the grandson mentioned above”. The Minister’s reasons thus clearly evidence his awareness of the existence of the additional grandchildren.

107    Further, the Minister was not required, as a mandatory consideration in the exercise of his statutory power of cancellation of the visa, to have regard to the best interests of the child, and any failure expressly to refer to or discuss in detail the best interests of the other grandchildren would not indicate that he failed to consider or indeed understand the applicant’s submissions on that question, or that he dealt with them contrary to any legitimate expectation.

108    Nevertheless, the reasons indicate that the Minister considered whether the best interests of the grandchildren were significantly affected but concluded that this was not established by the evidence.

109    In my opinion, the allegations in ground 1 were not established.

Ground 2

The respondent’s decision is affected by jurisdictional error because the respondent failed to afford procedural fairness to the applicant.

Particulars

The respondent misunderstood or failed to hear the applicant’s submissions in relation to the International Covenant of Civil and Political Rights.

110    The applicant did not, under this ground, complain of the Issues Paper’s treatment of his ICCPR submissions. Rather, he submitted that the statement of reasons demonstrated that the Minister, as in Dranichnikov, misstated and misunderstood his ICCPR submissions, and by consequently failing to take it into account, denied him procedural fairness.

111    The applicant submitted:

6.5.1.    The Respondent failed to deal with the ICCPR submission at all;

6.5.2.    If he did purport to deal with the submission, he misunderstood it and asked himself a question (namely, whether deportation of the Applicant would result in a breach of international non-refoulement obligations) that was different from the question raised by the ICCPR submission;

6.5.3.    The substance of the ICCPR submission was dealt with in an unexpected manner, and the Applicant was denied an opportunity to be heard on it.

112    The applicant’s submission dated 27 May 2011 (“ICCPR submissions”) stated that:

In so far as the ICCPR and Human Rights Committee jurisprudence applies, Mr Cunliffe under Article 12(4) is entitled to call Australia his ‘own country’, especially because he has integrated here fully over 44 years and has lived nowhere else. He is totally and inextricably tied into this country as the only place he has lived his life.

I further draw attention to Article 7 of the ICCPR and note that it may well be considered to be cruel, inhuman or degrading treatment to remove a person, who has been punished already, from his own country where he has lived a good and constructive life (but for one terrible week) over so many years, especially where there are so many family ties here, and none elsewhere. Indeed such removal or deportation may also breach Article 14 of the ICCPR in a particular case, such as this one, because it would amount in so many ways to further punishment. It is not merely an administrative step in the circumstances of this case. Further the separation of Mr Cunliffe from his family after so many years, and four generations of family living, is an entirely disproportionate step in these circumstances.

113    The Minister’s statement of reasons relevantly stated:

Other International Obligations

23.    I note that Mr CUNLIFFE has not made any claims which require assessment in relation to Australia's international non refoulement obligations, nor does the other available evidence indicate that such an assessment is appropriate in this case.

24.    I also note the submissions dated 27 May 2011 made on Mr CUNLIFFE's behalf by his legal representative in relation to the International Convention on Civil and Political Rights (ICCPR). However, I do not consider that the claims support a finding that Australia is at any risk of breaching its international non refoulement obligations under the ICCPR or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

114    The Issues Paper stated:

Obligations under the Refugees Convention and other relevant international obligations

74.    Paragraph 10.4.2 of the Direction states that:

In cases where issues of protection pursuant to the Refugees Convention are raised by the person or are clear from the facts of the case, they must be given consideration.

75.    Paragraph 10.4.3 of the Direction indicates that Australia also has non-refoulement obligations under the International Convention on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which must be considered where relevant.

76.    Mr CUNLIFFE has not made any claims which require assessment in relation to Australia's international non-refoulement obligations, nor does the other available evidence indicate that such an assessment is appropriate in this case.

77.    However, Mr CUNLIFFE's legal representative has stated the following in his submission dated 27 May 2011 (Attachment NN pages 10-11):

‘In so far as the ICCPR and Human Rights Committee jurisprudence applies, Mr Cunliffe under Article 12(4) is entitled to call Australia his 'own country', especially because he has integrated here fully over 44 years and has lived nowhere else. He is totally and inextricably tied into this country as the only place he has lived his life.

I further draw attention to Article 7 of the ICCPR and note that it may well be considered to be cruel, inhuman or degrading treatment to remove a person, who has been punished already, from his own country where he has lived a good and constructive life (but for one terrible week) over so many years, especially where there are so many family ties here, and none elsewhere. Indeed such removal or deportation may also breach Article 14 of the ICCPR in a particular case, such as this one, because it would amount in so many ways to further punishment. It is not merely an administrative step in the circumstances of this case. Further the separation of Mr Cunliffe from his family after so many years, and four generations of family living, is an entirely disproportionate step in these circumstances.’

115    As the applicant submitted, the substance of the ICCPR submissions was that his deportation might constitute a breach of one or more of articles 7, 12 and 14 of the ICCPR. The applicant alleged that the Minister’s reasons indicated that the Minister had or may have misconstrued the ICCPR submissions as alleging that the applicant’s deportation might breach any non-refoulement obligations by exposing him to the risk or threat of torture or cruel treatment in the country to which he was to be returned.

116    The Issues Paper, however, identified primary considerations having regard to Direction 41, including Australia’s international obligations under the Refugees Convention and the ICCPR. The Issues Paper quoted extensively from the applicant’s submission, referred the Minister to the relevant pages and attached it in its entirety.

117    The applicant did not contend that the Minister was obliged to have a decision made in accordance with any obligations under the ICCPR, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or any other international treaty not incorporated into Australian domestic law.

118    The Minister, in his reasons, noted the applicant’s submissions and stated that he did not consider that there was a breach of the ICCPR or other non-refoulement obligations. Read in the light of the discussion in the Issues Paper, and given that the Minister is not obliged to address or explain rejection of matters raised by applicants which are not considered relevant, the Minister’s reasons are consistent with addressing whether the applicant’s removal to the United Kingdom would contravene Australia’s non-refoulement obligations under any treaty, as raised by Direction 41, and noting that he had considered, without regarding it as relevant to his decision, the applicant’s submission that his deportation might breach Articles 7, 12 and 14 of the ICCPR, which was extracted verbatim in the Issues Paper.

119    The applicant was afforded a reasonable opportunity to make submissions in relation to the way in which the Minister should take account of Australia’s obligations under the ICCPR, and the submissions were made, provided to the Minister in their entirety in an unaltered form and indeed drawn to the Minister’s attention by the Issues Paper. While I am not persuaded that procedural fairness required the Minister to understand the ICCPR submission, his statement of reasons does not establish that he failed to consider or misunderstood it.

120    In my opinion, the allegations in ground 2 are not made out.

Ground 3

The respondent’s decision is affected by jurisdictional error because the respondent failed to afford procedural fairness to the applicant.

Particulars

The respondent misunderstood or failed to hear the applicant’s submissions in relation to the unfairness caused to the applicant by the conduct of the respondent, his delegates or department, who failed to correct advice given to the applicant in 2002 that the respondent had no power to cancel the applicant’s visa, notwithstanding that they knew since 2003 that the advice was no longer correct.

121    The “unfairness submission” was contained in the submission of Mr McMahon dated 13 July 2010 under the heading “Noteworthy legal events” as follows:

But for his crime in 1999, it is clear that the decision had been made by Mr Lee on 18 May 1999 to grant Mr Cunliffe citizenship. However the Decision Record dated 21 May 1999 shows that the application was refused as a result of the fact that Mr Cunliffe was then in custody.

By letter dated 28 August 2000 the department advised Mr Cunliffe that it was considering cancelling his visa.

By letter dated 18 February 2002 the department advised Mr Cunliffe that, following a recent High Court decision, the department would no longer consider cancelling his visa. The department advised that it did not have the power to deport Mr Cunliffe.

The effect of that letter dated 18 February 2002 was to cement in Mr Cunliffe’s mind that he would now be spending the rest of his life in Australia. He was relieved from the fear and anxiety that he may be deported. Naturally, in the 8 years since that letter, he has developed all of his family relationships on that understanding.

The department has now advised by letter dated 4 June 2010 that it is once again considering cancelling his visa. Not only is the reversal of the department’s position a terrible shock to Mr Cunliffe and his family, it appears that the department has known since 2003 that it was free to consider the cancellation of Mr Cunliffe’s visa, despite having told him in 2002 that it no longer had any power to do so.

In other words, having told him in 2002 that he would not be deported, and having allowed him to live and develop all his relationships and life on that basis for the subsequent 8 years, it appears from the letter dated 4 June 2010 that the department has known that this was potentially incorrect for the last 7 years.

Putting aside any legal implications arising from this chain of events, it is clearly a situation of terrible unfairness.

This unfairness should be taken into consideration by the delegate in this application given the otherwise excellent merits of this application.

(emphasis added)

122    The Issues Paper, under the heading “Part A: Immigration Background”, stated:

2    Mr CUNLIFFE’s legal representative has presented a section called ‘Noteworthy Legal Events’ in his submission dated 13 July 2010, discussing the history of character processing in Mr CUNLIFFE’s case. In summary, he states that Mr CUNLIFFE was sent a Notice of Intention to consider Cancellation of a visa on 28 August 2000 and that on 18 February 2002 he was further advised in writing that he would not be deported due to a court case. Mr CUNLIFFE’s representative states he then heard from the department again in 2010, some eight years on, despite the department knowing Mr CUNLIFFE could be deported in 2003 (Attachment T).

3    On 18 February 2002, Mr CUNLIFFE was advised that the department would no longer be considering his liability to section 501 visa cancellation. This action was based upon the decision of the High Court of Australia that certain British subjects who arrived in Australia prior to 1973 were not ‘aliens’ and could not be deported or removed under the Act.

4.    However, the High Court in Shaw v MIMIA [2003] HCA 72 later held that British subjects who arrived after 26 January 1949 and have not become citizens are ‘aliens’ for the purposes of the Act. Consequently, it was open to re-consider whether to cancel Mr CUNLIFFE’s visa under section 501 of the Act. Mr CUNLIFFE’s case was re-opened in June 2010, closer to his expected date of release.

(emphasis added)

123    As the applicant submitted, in substance, the unfairness submission was that it would be unfair now to deport him because he had lived his life and conducted his relationships from 2002 to 2010 on the belief that he could never be deported from Australia, as he had not been advised in 2003 of the effect of Shaw. The applicant submitted that the Issues Paper misunderstood, misstated and wrongly characterised the unfairness submission as a question whether the Minister had power to cancel his visa. The applicant contended that the Issues Paper thus functioned as a procedural flaw that thwarted the Minister’s opportunity to consider, or posed a substantial risk that the Minister would not consider, the unfairness submission.

124    The applicant submitted that as the Minister neither referred to the unfairness submission nor identified error in the Issues Paper’s characterisation thereof, the risk that he had misapprehended or failed to consider it was not addressed. Nor did the Minister’s reasons indicate that he had considered the unfairness submission.

125    The applicant submitted that:

5.6.    The Applicant was therefore denied procedural fairness because:

5.6.1.    The Respondent:

5.6.1.1.    failed to deal with the unfairness submission at all; or

5.6.1.2.    if he did purport to deal with the submission, misunderstood it, having been misled as to its substance by the Department’s issues paper, and asked himself a question (namely, whether or not he had power to deport the Applicant) that was different from the one raised by the unfairness submission;

5.6.2.    There was a real risk that the Respondent would misunderstand the unfairness submission because of its mischaracterisation in the Department’s issues paper, and in the absence of any explanation by the Respondent as to how he overcame that risk, there can be no satisfaction that the Respondent did, in fact, consider the submission;

5.6.3.    The substance of the unfairness submission was dealt with in an unexpected and adverse manner (namely the Department’s (incorrect) suggestion that the submission was about whether the Minister did or did not have power to cancel the visa, rather than about the unfairness flowing from the 2002 letter), and the Applicant was denied an opportunity to be heard on it.

126    I reject those submissions. The applicant’s case, that the Issues Paper mischaracterised the unfairness submission as questioning the existence of the power to cancel the applicant’s visa, depended on the associated assertion that it misleadingly purported to summarise the entire contents of the section of the submissions dated 13 July 2010 entitled “Noteworthy Legal Events”, in which the unfairness submission appeared. The applicant submitted, perhaps implicitly, that the Issues Paper thus deterred the Minister from considering the submissions directly (despite his assertions to the contrary) or posed such a risk thereof as to constitute a procedural defect that denied the Minister, as decision-maker, the opportunity to consider the unfairness submission.

127    In my opinion, the Issues Paper did not mischaracterise the unfairness submission by the oblique process alleged of purporting exhaustively to summarise the entire contents of the section entitled “Noteworthy Legal Events”, omitting any reference to the unfairness or any other submission, and by asserting the existence of the power to cancel the visa, thus indicating that the only content of or submission in the relevant section was a questioning of that power.

128    The impugned paragraphs of the Issues Paper claimed to set out “in summary” only “the history of character processing” discussed in the submissions, which it identified as the notice and correspondence.

129    The phrase “history of character processing” suggests a neutral chronology of events or dealings, rather than an advocate’s substantive submissions. The Issues Paper does not expressly or implicitly purport comprehensively to summarise the contents of all or any of the applicant’s written submissions or any part thereof, or suggest that the Minister could rely on the Issues Paper rather than considering the applicant’s submissions, which it specifically referred to and attached.

130    The impugned paragraphs do not refer to any arguments advanced on the applicant’s behalf, whether challenging the power to issue a visa or otherwise. Rather, they refer only to the applicant’s factual assertions as to dates and contents of communications from the Department.

131    In my view, the Issues Paper neither literally set out nor implicitly embodied a misunderstanding, mistake or mischaracterisation of the unfairness submission.

132    If, contrary to that conclusion, the Issues Paper mischaracterised the unfairness submission as relating to power to cancel the visa, in my opinion, it would not suffice to establish procedural unfairness, in the sense of a “self-disabling” procedural flaw in the process controlled by the decision-maker, which denied the Minister the opportunity to consider it or posed a substantial risk that he would fail to do so. The written submissions containing the unfairness submission were provided in full and without any alteration to the Minister. As stated above, the Issues Paper did not state or suggest that it was unnecessary to refer to the applicant’s written submissions but specifically referred the Minister to them. Moreover, the Minister stated that he had considered all relevant matters and all the evidence before him, including that provided by or on behalf of the applicant.

133    The Minister, in the context of exercising his power, was not required to address all arguments raised in the applicant’s submissions or explain why he considered them irrelevant. It cannot be inferred from the absence of discussion of the unfairness submission in the statement of reasons that the Minister, contrary to his express assertion, failed to consider it or misunderstood it.

134    In my opinion, the allegations in ground 3 are not established.

Conclusion

135    The relief sought in the amended application dated 2 September 2011 should be refused.

Associate:

Dated:    13 February 2012