FEDERAL COURT OF AUSTRALIA

Ruatita v Minister for Immigration and Citizenship [2013] FCA 542

THE COURT ORDERS THAT:

1.    The parties bring in short minutes of orders to give effect to these reasons within 14 days.

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

REASONS FOR JUDGMENT

1    The Applicant arrived in Australia from New Zealand in October 1992.

2    After his arrival he committed a number of criminal offences for which he has been sentenced to terms of imprisonment and periodic detention.

3    In May 2012 a delegate of the Minister for Immigration and Citizenship (the “Minister”) cancelled his visa. Review of that decision was sought by the Administrative Appeals Tribunal. The Tribunal set aside the delegate’s decision in July 2012: Re Ruatita and Minister for Immigration and Citizenship [2012] AATA 444, 129 ALD 368.

4    The Applicant was thereafter notified in September 2012 of an intention on the part of the Minister “to consider whether to set aside the decision of the AAT and to cancel your visa under subsection 501A(2)” of the Migration Act 1958 (Cth) (“Migration Act”). In December 2012 the Minister cancelled the Applicant’s visa. Given the repeated offences committed by Mr Ruatita, and the nature of those offences (including violence against his partner), it is hardly surprising that consideration was given to his right to remain in this country.

5    An Application for Review of that decision was filed in this Court in January 2013 seeking (inter alia) an order setting aside the Minister’s decision. It was thereafter amended on a number of occasions. Most recently, leave was granted at the outset of the hearing on 10 May 2013 to file a Fourth Amended Originating Application.

6    In seeking judicial review, two of the central concerns sought to be ventilated on behalf of Mr Ruatita were:

    a misstatement as to the period of time that he had served “in custody”; and

    the form of the notice provided in the September 2012 letter.

In very summary form, on behalf of Mr Ruatita, attention was focussed on the statement in a submission forwarded to the Minister that he had served “more than four and a half years in custody during his residence in Australia”. Alternatively, on his behalf, attention was focussed on whether Mr Ruatita had his attention sufficiently drawn to the fact that a matter of fundamental concern to any decision to cancel his visa was the relevance of the “national interest” as opposed to considerations relevant to an assessment of “character grounds”. It was claimed that he had thereby been deprived of an adequate opportunity to make submissions in support of his interests.

7    It is concluded that the decision of the Minister cancelling Mr Ruatita’s visa should be set aside.

THE DECISION-MAKING PROCESS

8    The letter dated 4 September 2012 to Mr Ruatita stated at the outset that it was providing notice of an “intention to consider cancellation of your visa under subsection 501A(2) of the Migration Act 1958”. That letter stated in part as follows:

You may wish to submit information about whether you pass the character test or provide comment on, or information relating to, whether the Minister should exercise his discretion to cancel your visa and on the Minister’s consideration of whether cancellation of your visa would be in the national interest.

9    In response to that letter, Mr Ruatita completed a “Personal Details Form” on 10 September 2012. That form confirmed that “the information … supplied in this form is given to assist in the consideration of my case for the purposes of s 501 of the Migration Act 1958”. Also completed on the same date was a consent signed by Mr Ruatita to the release of information and acknowledging receipt of a notice of an intention to cancel his visa “under subsection 501(2) of the Migration Act 1958”. Further information was provided to Mr Ruatita on 10 December 2012 referring to the 4 September 2012 letter notifying an intention to consider cancelling his visa “under subsection 501(2) of the Migration Act 1958…”.

10    The repeated reference in the documents subsequent to 4 September 2012 to s 501(2) – as opposed to s 501A – was not satisfactorily explained during the hearing on 10 May 2013.

11    Whatever significance may attach to this apparently mistaken reference to s 501(2) may presently be left to one side.

12    On 10 December 2012 a submission was forwarded to the Minister by officers within his Department. That submission attached an “Issues Paper” and a draft “Statement of Reasons”. The “Issues Paper” separately addressed:

    whether or not Mr Ruatita satisfied the “character test”;

    whether or not Mr Ruatita’s visa should be cancelled in the “national interest”; and

    the manner in which the Minister may exercise his discretion.

When addressing the manner of exercise of discretion, the “Issues Paper” separately addressed factors under a number of “headings”.

13    The draft Statement of Reasons provided for the Minister’s consideration substantially followed the format of the “Issues Paper”. That Statement also separately addressed:

    the “character test”; and

    the “national interest”.

It thereafter separately addressed the manner in which the Minister could potentially exercise his discretion under the headings of:

    the “Protection of the Australian Community”, including the “seriousness and nature of conduct” and the “risk that the conduct may be repeated”;

    Mr Ruatita’s “Ties to Australia”;

    the “Best Interests of Minor Children in Australia”;

    “International Obligations”; and

    “Other Considerations”.

14    The Minister made his decision on 17 December 2012 and signed the draft Statement of Reasons with which he had been provided.

SECTIONS 501 AND 501A

15    The delegate’s decision to cancel Mr Ruatita’s visa in May 2012, and the subsequent review conducted by the Administrative Appeals Tribunal, directed attention to s 501 of the Migration Act.

16    Section 501 provides in part as follows:

Refusal or cancellation of visa on character grounds

Decision of Minister or delegate--natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

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

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

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

…

Character test

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

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

(aa)    the person has been convicted of an offence that was committed:

(i)    while the person was in immigration detention; or

(ii)    during an escape by the person from immigration detention; or

(iii)    after the person escaped from immigration detention but before the person was taken into immigration detention again; or

(ab)    the person has been convicted of an offence against section 197A; or

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

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

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

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

the person is not of good character; or

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

(i)    engage in criminal conduct in Australia; or

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

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

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

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

17    The Minister’s subsequent decision in December 2012 to overturn the decision of the Tribunal was taken pursuant to s 501A. That section provides in relevant part as follows:

Refusal or cancellation of visa--setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(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.

…

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.

…

Section 501A confers a truly exceptional power. In most – if not all – other areas of Commonwealth administrative decision-making where jurisdiction has been conferred on the Administrative Appeals Tribunal, the decision of the Tribunal is final as to the factual merits of the decision.

18    Be that as it may, s 501A(2)(e) – unlike s 501(2) – confers a discretionary power to set aside a decision of the Tribunal where (among other considerations) the Minister “is satisfied that the … cancellation is in the national interest”.

MORE THAN FOUR AND A HALF YEARS IN CUSTODY?

19    The Issues Paper, when addressing the manner in which the Minister could exercise his discretion, set forth (in paragraph [30]) under the heading of the “nature and seriousness of conduct”, the following table outlining Mr Ruatita’s “criminal history”:

The Issues Paper when addressing the “duration and nature of the person’s ties to Australia” states:

42.    His NSW DCS Conviction, Sentences and Appeals report dated 20 February 2012 (Attachment E) shows he has spent more than four and a half years in custody during his residence in Australia.

20    It is presumed that, after having read the Issues Paper, the Minister thereafter went on to make his decision. It is further presumed that the Minister also read the Statement of Reasons that had been prepared for his consideration.

21    The Statement of Reasons as signed on 17 December 2012 sets forth his reasons why Mr Ruatita did not pass the “character test” and why it was in the “national interest” that his visa should be cancelled. When addressing the “national interest” the Minister’s reasons provide in part as follows:

9.    I consider crimes involving violence to be serious offences. In Mr RUATITA’s criminal history there are many offences in the nature of breaching or contravening domestic violence orders. He has engaged in this type of conduct for many years, with frequent contraventions of apprehended violence orders designed to deter him from committing future acts of violence or harassment. I note the Court’s remarks in 2011 that he is a “chronic abuser of the protection which is afforded to a complainant … to protect her from acts of violence.”

The reasons then address the exercise of the discretion conferred by s 501A(2). When considering the need to protect the Australian community, the reasons state in part:

13.    Mr RUATITA has been convicted of many offences involving or related to domestic violence, which have resulted in many custodial sentences of up to 12 months imprisonment. I consider that violence of any sort is of serious concern and that violence against women is of additional concern in light of the value that the Australian community placed on respect for women and children.

…

15.    While Mr RUATITA’s offences have not been exceptionally serious individually, the cumulative effect of frequent re-offending and his overall record of offending has imposed a considerable burden on the Australian community.

It is the following part of the reasons which considers “Ties to Australia” that picks up the earlier erroneous statement in the Issues Paper as to the time in which Mr Ruatita was in custody, namely:

Ties to Australia

19.    Mr RUATITA has been a resident of Australia for just over 19 years, after arriving from New Zealand as an adult of 30 years on 4 October 1992. He has spent more than four and a half years of that time in criminal custody.

20.    Mr RUATITA’s offending in Australia commenced in November 1995, just over three years after his arrival, and has continued frequently since then.

21.    Mr RUATITA has strong ties to Australia in his two sons who reside in Australia with their mother. I also noted Mr RUATITA has been gainfully employed since he arrived in 1992.

The shift in language from the terms of the Issues Paper – which refers to “custody” – to the terms in which the Statements of Reasons is expressed – “in criminal custody” – received little (if any) attention during the hearing. The focus of argument was directed to the period of time Mr Ruatita had been in custody.

22    There is no exposition in either the Issues Paper or the Statement of Reasons as to how that period of time was calculated or what was intended to be conveyed by the phrases “in custody” or “in criminal custody”.

23    Nor is it readily apparent how that period of time was in fact calculated. That period of time does not readily emerge from the table setting forth Mr Ruatita’s “criminal history” – indeed, that table would seem to suggest a far longer period. Attachment E, as referred to in the Issues Paper, provides no further enlightenment. And there is no evidence to suggest that the Minister himself gave any independent thought to whether that period was either correct or should be questioned.

24    During the course of submissions, a variety of calculations were explored. On behalf of Mr Ruatita it was contended that he had been “incarcerated for 1,164 days which is 3 years 69 days (or about 3.2 years)”.

25    It was common ground that the number of days for which Mr Ruatita had been sentenced to serve, whether by way of imprisonment or periodic detention, was 1,576 days.

26    But there the agreement between the parties ended. On behalf of Mr Ruatita it was submitted that the application of both the Periodic Detention of Prisoners Act 1981 (NSW) and the later Crimes (Administration of Sentences) Act 1999 (NSW) was that a further period of 412 days was to be deducted from the agreed 1,576 days. That was how the calculation of 1,164 days was determined. Counsel on behalf of the Minister accepted that the application of those State statutory provisions had the consequence that there had to be a deduction of a “significant number” of days from the total of 1,576 – but Counsel was unable to confirm that that number was 412 or some other number.

27    On either the approach advocated on behalf of Mr Ruatita or on the approach of Counsel for the Minister, the period of time stated in the Statement of Reasons – i.e., “more than four and a half years … in criminal custody” – was erroneous. Even on the Minister’s approach, a “significant” number of days had to be deducted from the agreed 1,576 days.

28    The question to be resolved was the consequence of this erroneous statement.

29    On behalf of the Minister it was submitted that the statement in paragraph [19] of the Statement of Reasons was neither:

    misleading; nor

    a matter of critical importance to the reasoning of the Minister.

Neither submission is accepted. It is concluded that the erroneous statement as to the number of days Mr Ruatita had been in custody had both the potential to mislead the Minister when making his decision and that it deprived Mr Ruatita of the “possibility” of a favourable exercise of Ministerial discretion.

30    The erroneous statement, it is respectfully considered, vitiates the decision of the Minister. The erroneous statement exposes jurisdictional error such that the Minister’s decision should be quashed and set aside.

31    An error in an Issues Paper presented to the Minister for consideration when exercising the power conferred by s 501A was considered by the Full Court in Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340, 141 FCR 346. The Minister had there cancelled a visa on the ground that the visa holder did not pass the character test and that cancellation was in the national interest. The visa holder had been convicted of a number of offences in 1991 and, whilst serving his term of imprisonment, was further convicted of offences relating to the possession and use of marijuana. The Issues Paper stated that it was open to the Minister to find that Mr Lu had “a medium to high risk of recidivism”. The Issues Paper did not identify the drug which was the subject of his convictions and erroneously stated (in paragraph [22]) the term of imprisonment imposed. Black CJ and Sackville J concluded that the Minister’s decision should be set aside. Sundberg J dissented and would have upheld the decision of the primary judge, Weinberg J.

32    After referring to the erroneous statement, there found in paragraph [22] of the Issues Paper, Black CJ reasoned in part as follows:

[28]    Whatever the effect para 23 of the Issues Paper may have had on the conclusion that it was open to the Minister to find that the appellant had a medium to high risk of recidivism, there is no doubting the potential effect of the misstatements in para 22 in contributing to that conclusion. To a reader of the section of the Issues Paper about likelihood of the criminal conduct being repeated, the negative effect of the misstated facts might well be heightened by the description of the offences of “possession of implements for administration” and “self-administration” without any reference to the fact that the drug in question was cannabis. In the absence of any statement that the drug was cannabis, a nine month term of imprisonment, perhaps cumulative and in any event lengthy relative to what was described as “the main sentence”, together with the impression that might be created by the elements of some of the offences (“implements of administration” and “self administration”) might lead a reader to suppose that the drug or drugs were so-called “hard drugs”, of a type commonly associated with recidivism and other very serious long-term problems for the individual and for the community.

[29]    Had the sentences for the drug offences been correctly stated and put before the Minister there is a rational possibility that a more favourable assessment of the risk of recidivism would have been made in the Issues Paper or, in any event, by the Minister. There would have been a rational possibility of the risk of recidivism being seen as low and of the case being seen as one in which the Minister's discretion could be exercised favourably to the appellant in all the circumstances. I stress “possibility”.

The then Chief Justice concluded:

[32]    In these circumstances, despite the strength of the considerations that support the Minister's decision, the force of which must be acknowledged, I have concluded that the erroneous statement in the Issues Paper deprived the appellant of the possibility of a successful outcome. Had the Minister been given the correct information about a matter he was bound to take into account, he may have come to a different conclusion and may have refrained from cancelling the appellant's visa.

33    Sackville J identified the ambit of the argument to be resolved by reference to the following submission of Counsel for the respondent:

[38]     [Counsel] also accepted that errors in describing a person’s criminal record may result in a decision under s 501A of the Migration Act being affected by jurisdictional error and thus not protected by the so-called privative clause (s 474): cf Craig v South Australia (1995) 184 CLR 163, at 179, per curiam; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, at 351 [82], per McHugh, Gummow and Hayne JJ; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, at 506 [76], per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93, at 107 [45], per curiam. However, [Counsel] submitted that the mere fact that the Issues Paper provided to the Minister misdescribed the appellant’s criminal record was not of itself sufficient to constitute a jurisdictional error.

His Honour went on to conclude:

[55]     … It must be remembered that s 501A(2) confers a power on the Minister not merely to cancel a visa, but to set aside a decision of the Administrative Appeals Tribunal not to cancel the visa. It is unlikely that Parliament contemplated that the Minister could exercise a power having such drastic consequences for a permanent Australian resident on the basis of incorrect information as to the offences committed by the visa holder and the sentences imposed for those offences. It follows that if the Minister fails to take into account a visa holder's correct criminal record because the Department provides incorrect information, ordinarily the Minister will have failed to act in accordance with the requirements of s 501A(2) and therefore will have acted in excess of jurisdiction.

[56]     As I have suggested, it may be that a minor error relating to the convictions or sentences imposed on the visa holder will not in substance result in the Minister failing, in a relevant sense, to take account of that person's criminal record. But I do not think that the errors in this case were consistent with the Minister's statutory obligation to take the appellant's correct criminal record into account.

34    A like conclusion should be reached in the present proceeding.

35    It is not correct, as submitted on behalf of the Minister, that the statement as to the time which Mr Ruatita had served in custody was not “critical” to the reasoning process of the Minister. Paragraph [42] of the Issues Paper, it may be accepted, appears in that part of the submission to the Minister which expresses a conclusion favourable to Mr Ruatita. That part of the submission expresses a view that Mr Ruatita has “strong links to the Australian community” and is addressing (in part) a comparison between the length of time he has been in Australia and the length of time he has served in custody.

36    But to confine the significance of paragraph [42] to the issue of his “links to the Australian Community”, it is respectfully concluded, is to impermissibly attempt to parse and analyse a submission and to divorce the potential relevance of observations made in one part of the submission from the entirety. Very much at the forefront of the competing issues to be resolved by the Minister was an assessment as to whether someone with the criminal history of Mr Ruatita should be allowed to remain in Australia. That assessment properly involved an assessment as to the nature of the offences for which Mr Ruatita had been convicted, including those offences being crimes of violence and crimes of violence against his partner, and the period of imprisonment imposed and served. Indeed, the text of the Issues Paper set forth in paragraph [30] a table as to those offences and the sentences imposed.

37    The factually inaccurate statement as to the time that Mr Ruatita had served in custody, it is thus concluded, had the consequence that the Minister had failed to take into account Mr Ruatita’s correct criminal record and thereby “failed to act in accordance with the requirements of s 501A(2) and therefore … acted in excess of jurisdiction”: Lu [2004] FCAFC 340 at [55] per Sackville J.

38    In the present proceeding it should be noted that Counsel for the Minister correctly accepted that the statement as to the time served in custody was erroneous. It was not sought to be argued that the Minister had in fact performed his own process of calculation and simply made a factual error in that process. A process of calculation undertaken on behalf of the Minister and undertaken after the decision had been made and undertaken solely for the purposes of the present proceeding maintained that a “period in custody” could be calculated as 4 years 116 days. The period of time set forth in paragraph [42] of the Issues Paper and repeated in paragraph [19] of the Statement of Reasons was, accordingly, accepted as factually wrong. No reliance was thus sought to be placed upon those authorities in which it has been concluded that jurisdictional error may be exposed if there is “no evidence” to support a critical finding. Such authorities arise, of course, in both decision-making under the Migration Act (e.g., SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19] – [20], 77 ALD 402 at 407 – 408 per Mansfield, Selway and Bennett JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 at [5] - [13] per Wilcox, French and Finkelstein JJ; SZNKV v Minister for Immigration and Citizenship [2010] FCA 56 at [38], 118 ALD 232 at 243 per Kenny J) and other statutory contexts (e.g., Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 at [16], 241 CLR 390 at 396 per French CJ; Soliman v University of Technology, Sydney [2012] FCAFC 146 at [23], 296 ALR 32 at 38 per Marshall, North and Flick JJ). Nor was it necessary to consider other authorities which have considered the consequences of a Minister being misled by information provided (e.g., GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309).

39    The first Ground of the Fourth Amended Originating Application is thus made out. Jurisdictional error is exposed by the Minister failing to act in accordance with the requirements of s 501A(2).

AN OPPORTUNITY TO MAKE SUBMISSIONS – SECTION 501 –v– 501A?

40    The Fourth Amended Originating Application further contends that Mr Ruatita was denied procedural fairness.

41    The substance of this Ground upon which the Application is advanced is to be found in the different subject-matters of ss 501 and 501A. Section 501 is concerned with the refusal or cancellation of a visa if a person does not satisfy the “character test”; s 501A directs attention to both the “character test” and the “national interest”.

42    The heading to the initial letter from the Department to Mr Ruatita in September 2012 correctly referred to s 501A(2) of the Migration Act. The body of that letter thereafter referred expressly to the “national interest”. The text of that letter expressly invited Mr Ruatita to “submit information about” three matters, namely:

    whether he passed the “character test”;

    whether the Minister should exercise his discretion to cancel the visa; and

    whether cancellation of the visa “would be in the national interest”.

The September 2012 letter could, perhaps, have more clearly identified each of the three matters in respect to which Mr Ruatita was being asked to provide information. It is nevertheless the fact that he was notified at the outset that separate consideration was being given to the “national interest”.

43    The difficulty emerges not so much from the September 2012 letter but from the reference in the “Personal Details Form” and the “Acknowledgment of Notice Under Section 501” thereafter completed by Mr Ruatita on 10 September 2012. The reference to s 501 was repeated in the letter from the Department to Mr Ruatita of 10 December 2012.

44    It may well be doubted whether Mr Ruatita when he received either the September or December 2012 letters, or when executing the two forms on 10 September 2012, consulted the text of the Migration Act. It would indeed be surprising if Mr Ruatita even had any understanding as to the differences between ss 501 and 501A. In all probability, all that Mr Ruatita knew was that consideration was being given to the cancellation of his visa and that he wished to resist that outcome.

45    There is thus an element of unreality in requiring a person whose visa is being cancelled to be notified of the precise terms of the statutory provision under consideration. Even the provision of a copy of the text of s 501A may not have provided any greater assistance to Mr Ruatita or affected the responses he provided to the Department.

46    Notwithstanding such considerations, it is concluded that Mr Ruatita’s attention was not sufficiently drawn to the potential importance of whether cancellation of his visa was “in the national interest…”. The initial notification in the September 2012 letter and the reference to s 501A cannot be divorced from the subsequent and repeated references to s 501. Notification of the issues to be taken into account cannot be confined to that which may be said at the outset and divorced from subsequent statements which may have the potential to divert a person’s attention away from that of which he had been informed at the outset.

47    When preparing its report in 1971, the Kerr Report then addressed the degree of detail to be set forth in the notice to be given of a hearing before an administrative tribunal as follows:

The giving of adequate notice

328.     We recommend that the notice include:

    (a)    a statement of the time, place and nature of the hearing; and

(b)    a reference to the statutory or other authority under which the hearing is held.

We also consider that, where practicable, the notice should contain a statement of the questions to be adjudicated.

See: Commonwealth Administrative Review Committee (Parliamentary Paper No 144, 1971). The substance of the recommendations made by the Kerr Report had their counterpart in s 5(a) of the American Administrative Procedure Act 1946 (then 60 Stat 237; now 5 USC ss 554(b)) which provided (in part) as follows:

Notice – Persons entitled to notice of an agency hearing shall be timely informed of (1) the time, place and nature thereof; (2) the legal authority and jurisdiction under which the hearing is to be held; and (3) the matters of fact and law asserted.

The general content of a notice advising a person of an administrative hearing which could adversely impact upon that person’s interests had previously been addressed in Benjamin’s report on Administrative Adjudication in the State of New York at 77-83 (1942).

48    The degree of detail to be set forth in any notice of an administrative hearing and the need to identify the statutory or other authority in question has long attracted attention. Thus, for example, in R v Corporation of Doncaster (1729) 2 Ld Raym 1564 at 1566 it was concluded that the notice as there provided was “too general a charge, for the particular laws ought to have been specified…”.

49    The general principle is nevertheless well established. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592, Northrop, Miles and French JJ concluded:

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

It is the application of the well established principle which potentially gives rise to difficulty.

50    At a point of time when legislation was less complex and the factual matrix sought to be regulated less diffuse, notice of a particular statutory provision and a limited matrix of facts may well have been sufficient to put a person on notice of the legal and factual issues to be addressed. At a point of time in the not too distant past it may also have been safe to generally assume that the person notified of an administrative hearing was conversant in the English language. But times have changed – even in the present statutory context of migration.

51    The first Commonwealth legislative attempt to regulate migration was the Immigration Restriction Act 1901 (Cth). The Preamble to that Act provided that it was:

An Act to place certain restrictions on Immigration and to provide for the removal from the Commonwealth of prohibited Immigrants.

It was legislation at its most simple. It, for example, prohibited in s 3 the “immigration into the Commonwealth” of any “idiot or insane person” or “any prostitute or person living on the prostitution of others”. It also prohibited in s 3(a) the entry of persons who failed “to write out at dictation and sign … a passage of fifty words in length in an European language” that had been directed by an officer appointed under the Act. The history of s 3(a), it has been said, “is one of extraordinary interest”: R v Davey; Ex parte Freer (1937) 56 CLR 381. Evatt J there went on to observe:

… It is quite clear that, by executive action, there has been a remarkable turning or twisting of the original scheme of the Commonwealth Parliament in prescribing a failure to pass the dictation test as itself making the person failing a prohibited immigrant. The provision was first incorporated in the Immigration Restriction Act 1901, passed in December 1901. It is perfectly well known to all who are acquainted with the social and legal history of the Commonwealth that the test was never intended to be a real education test, or a provision guarding against the entry of illiterates. It was merely a convenient and polite device (which had previously been used similarly in the Colony of Natal) for the purpose of enabling the Executive Government of Australia to prevent the immigration of persons deemed unsuitable because of their Asiatic or non-European race. Accordingly the Parliament said that the test had to be applied in an European language directed by the officer. Not only when the original Act was passed, but also in many subsequent government documents and immigration pamphlets circulated amongst persons likely to become immigrants, it was officially stated that the dictation test was never intended to be applied, and would never be applied, to immigrants of an European race.

But the blanket words of the section do not require the adoption of such a policy and, in modern times, they have been found sufficiently wide to cover not only any person of European race, but British subjects of European race. It is well established that it is impossible to confine the application of the restrictions to persons of non-British nationality. Indeed, one of the original purposes of the Act was to enable the Executive to exclude British subjects of Asiatic race.

See also: Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49 at [140], 225 CLR 1 at 53, per Gummow J. Another early piece of Commonwealth legislation was the Pacific Islanders Labourers Act 1901 (Cth).

52    Thereafter and many years later there was enacted the Migration Act 1958 (Cth). When first enacted it was itself a modest legislative work of 37 pages or so in length and 67 sections. Judicial resolution of cases that previously arose was comparatively simple. As amended, the Act is currently published in two volumes, comprises over 850 pages (including schedules) and over 500 sections.

53    Whereas previously it may have been sufficient to notify a person of an intention to take action under a particular statutory provision, the current morass of legislative detail makes it difficult to adopt the same level of simplicity. The position is only made more complex by legislative attempts to preclude judicial review of certain classes of decisions; by recourse to the ever emerging doctrine of jurisdictional error; and the fact that decisions invariably affect those who are in some cases least able to protect their own interests. The classes of persons exposed to potentially adverse decision-making vary from tourists and holiday makers who overstay their visas, to those fleeing persecution and to those seeking to enter Australia for manifestly unlawful purposes. It is a different kind of ship that now brings people to Australian shores.

54    At some stage the general principle expressed in Alphaone may well need to be refined to more specifically address the degree of notice which should be provided in a particular statutory context if a person whose interests may be prejudicially affected is truly afforded a proper opportunity to respond. It may be, for example, that in the present case adequate notice may not have been given even had Mr Ruatita been provided with a copy of both ss 501 and 501A. It may be that he should have had his attention specifically brought to the difference between the factual issues being pursued in the prior proceedings before the Administrative Appeals Tribunal to the different factual issues now also being considered by the Minister.

55    If an opportunity to be heard is to be truly meaningful, a person must obviously be put on notice of what are the factual and legal issues he needs to consider. Notice, put more simply, is not a mere formal requirement; it is a matter of substance going to the very heart of procedural fairness. If the opportunity to be heard is to be meaningful, an affected person must know the legal and factual issues he should be addressing.

56    In the present proceeding, however, and irrespective of any detailed consideration of the specificity of the notice that should have been provided to Mr Ruatita, it is sufficient to conclude that the significance of the “national interest” would not have been “obvious” or readily apparent to him from a reading of the September and December 2012 letters. And the forms completed on 10 September 2012 and the December 2012 letter had the potential to mislead. Unlike the situation in Hanna v Minister for Health [2013] FCA 303, the significance of the “national interest” would not have been seen by Mr Ruatita as having “obvious relevance to the Minister’s discretion”: at [58] per Jagot J.

57    Also as a matter of general principle it may be accepted that what is required to put an affected person on “notice” of a decision proposed to be made may well be dictated by the statutory context. In the present context, an administrative course of decision-making which sends “mixed messages” to a visa-holder falls short. When a visa-holder may well not be conversant with the English language and even less conversant with the legal and factual issues to be addressed, care should be taken by those administering the legislation to ensure that those affected are as clearly as possible notified of the issues to be addressed. For whatever reason, that attention to detail was not manifest in the present proceeding. But that lack of attention to detail, and the potential that it had to mislead Mr Ruatita, cannot be visited upon him. The lack of attention to detail is a matter for which the Minister, and those acting on his behalf, must assume responsibility.

58    In the present proceeding, it is concluded that the decision-making process between September and December 2012 did not adequately “identify” the relevance of the “national interest” to the exercise of power under consideration. The claim that Mr Ruatita was denied procedural fairness is thus made out.

CONCLUSIONS

59    It is concluded that the factually erroneous statement in the Issues Paper presented to the Minister as to the time served by Mr Ruatita in custody had the potential to deprive Mr Ruatita of a favourable Ministerial decision. The erroneous statement cannot be characterised as a “minor” error. As was the conclusion of Sackville J in Lu, the Minister has failed to act in accordance with the requirements of s 501A(2) of the Migration Act. It is separately concluded that Mr Ruatita was not adequately informed of the significance of the “national interest” to the decision being made and was thereby denied an opportunity to address an issue of importance to the decision-making process.

60    These conclusions, it is further considered, also have the consequence that Mr Ruatita should not be denied relief in the exercise of the Court’s discretion.

61    The present decision-making process serves to emphasise the importance in government decision-making of ensuring that submissions made to Ministerial decision-makers contain factually accurate information. What may assume little significance to the author of an Issues Paper may attract a different significance to a Minister. What may appear in retrospect to the author of an Issues Paper to be a minor factual error and a matter of little significance, may well be seen differently by the Minister. The importance of placing before a Ministerial decision-maker information which is factually accurate, especially in respect to those factual matters of central importance to the decision to be made, is only further emphasised by those provisions (e.g., s 501A(5)) which require the Minister to make a decision “personally”. The more so is this the case where, as in the present proceeding, the material placed before the Minister did not readily permit the Minister to undertake his own process of calculation or verification of the information with which he was provided. The present case also serves to emphasise the importance of government documents required to be completed by a visa-holder and Departmental correspondence forwarded to a visa-holder correctly identifying the statutory power being exercised. The need for insistence upon Departmental care in the manner in which it deals with those affected assumes greater significance in the present area of decision-making where those affected are more often than not unrepresented and frequently not well-educated.

62    The decision of the Minister is to be set aside.

63    The parties are to bring in Short Minutes of Orders to give effect to these reasons. Those orders should also provide for the payment of the Applicant’s costs by the First Respondent.

THE ORDER OF THE COURT IS THAT:

1.    The parties are to bring in short minutes of orders to give effect to these reasons within 14 days.

Associate:

Dated:    5 June 2013