Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Heydon JJ,McHugh J,Kirby J
• Judgment Date: 02 October 2003
• Neutral Citation: 2003-1002 HCA A,[2003] HCA 56
• Court: High Court
• Docket Number: S258/2002
• Date: 02 October 2003

Re Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

and

Ex Parte Thomas Palme

Prosecutor/Applicant

[2003] HCA 56

Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ

S258/2002

HIGH COURT OF AUSTRALIA

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme

Immigration — Refugees — Minister — Decision to cancel visa — Whether decision affected by jurisdictional error — Whether prosecutor denied procedural fairness — Whether constructive failure to exercise jurisdiction — Whether decision affected by ‘Wednesbury unreasonableness’ — Whether alleged failure by Minister to notify prosecutor in writing of reasons for decision infected decision with jurisdictional error — Migration Act 1958 (Cth), s 501G.

Constitution, s 75(v).

Migration Act 1958 (Cth), ss 69, 501, 501G.

1 Gleeson CJ, Gummow and Heydon JJ. On 28 October 2002, a Justice of this Court (Gaudron J) ordered that the respondent (‘the Minister’) show cause why certiorari should not issue removing into this Court to be quashed a decision of the Minister made on 27 June 2002 (‘the Decision’) and prohibition should not issue prohibiting the Minister from proceeding further with any action in respect of the Decision. An application also was made for a declaration that the Decision ‘is invalid and void’.

Gleeson CJ

2 The Decision was to cancel the visa pursuant to which the prosecutor had been entitled to remain in Australia. That cancellation effected an immediate change of his status. He thereupon became an unlawful non-citizen within s 15 of theMigration Act 1958 (Cth) (‘the Act’), who was to be detained forthwith (s 189) and removed from Australia as soon as practicable (s 198). The prosecutor presently is in immigration detention.

3 Not all of the grounds in the order nisi were pressed before the Full Court. Grounds raising issues of validity of certain provisions of the Act were not argued. The grounds remaining assert jurisdictional error, in particular(a) by the denial to the prosecutor of the necessary measure of procedural fairness in the making of the Decision and (b) in the alleged failure to observe what are said to be the mandatory requirements in s 501G of the Act respecting the giving by the Minister of written notification of the decision to cancel the prosecutor's visa.

4 It is common ground that if the Decision is not a privative clause decision within the meaning of s 474 of the Act there is no legislative impediment to the exercise by this Court of the jurisdiction conferred in this matter by s 75(v) of the Constitution, supplemented by the powers conferred by ss 32 and 33 of theJudiciary Act 1903 (Cth). The reasoning in Plaintiff S157/2002 v Commonwealth1 supports that stance.

The facts

5 The prosecutor was born in Germany on 28 January 1961 and is a German citizen. He has never acquired Australian citizenship. When an infant, he was removed by the relevant authorities in Germany from his biological parents and was brought up in Germany by a foster family. The prosecutor entered Australia on 6 March 1971 with his foster parents. Members of the prosecutor's biological family, including his biological mother and some half-siblings, live in Germany. However, the prosecutor has had no contact or involvement of substance with those persons. He has two children, born in 1985 and 1988, who are Australian

citizens. He is divorced and the children have been in the custody of their mother.

6 On 9 December 1992, the prosecutor pleaded guilty before the Criminal Division of the Supreme Court of New South Wales to a charge of murdering one David Roberts on 2 April 1989. In her remarks on sentence, which later were before the Minister, the sentencing judge (Mathews J) said:

‘The prisoner is entitled to the leniency which flows from his expression of remorse and his plea of guilty. He also benefits from the fact of his prior unblemished record. I accept also in his favour that his dominant motive in killing Mr Roberts was to protect Mrs Roberts from her husband's continued violence and cruelty.

This was nevertheless a terrible killing. Mr Roberts did not stand a chance when he was pushed into the boiling sea. The prisoner must now accept the consequences — which will involve a long term of imprisonment.’

7 Her Honour then sentenced the prosecutor to imprisonment for 16 years, made up of a minimum term of 10 years, to commence on 9 December 1992 and thus to expire on 8 December 2002, and an additional term of six years.

The legislation

8 The Decision made by the Minister on 27 June 2002 was to exercise his discretion under s 501(2) of the Act to cancel the prosecutor's visa. Section 501(2) empowers the Minister to cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass ‘the character test’ and that person does not satisfy the Minister that he or she passes ‘the character test’. Section 501(6) indicates the circumstances in which a person does not pass ‘the character test’. One such circumstance applies if the person has a ‘substantial criminal record’, a term defined in s 501(7). A person has a substantial criminal record in the necessary sense if, among other things, that person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)). It followed that the prosecutor had a substantial criminal record within the meaning of par (c) of s 501(7). Accordingly, it was open for the Minister reasonably to suspect that the prosecutor did not pass ‘the character test’ (s 501(2)(a)).

9 Section 501G(1), so far as relevant, provides that if a decision, such as the present, is made under s 501(2) to cancel a visa:

‘the Minister must give the person a written notice that:

(c) sets out the decision; and

(d) specifies the provision under which the decision was made and sets out the effect of that provision; and

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

No attention was given in submissions to the extent to which the requirement of par (e) may be expanded by s 25D of theActs Interpretation Act 1901 (Cth). This states:

‘Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based’,

but, given the course of argument, it may be put to one side for this case.

10 However, s 501G(4) is an important provision for this case. It states:

‘A failure to comply with this section in relation to a decision does not affect the validity of the decision.’

Steps taken before the Decision

11 Before turning further to consider the submissions made by the prosecutor, it is convenient to look more closely at some of the events leading up to the making of the Decision.

12 On 27 February 2002, whilst the prosecutor was serving his sentence, two steps of present importance occurred. First, he acknowledged receipt of a ‘Notice of Intention to Consider Cancelling a Visa’ (‘the Notice’) pursuant to s 501 of the Act, the text of s 501 and the Minister's Direction No 21 titled ‘Direction under Section 499 — Visa Refusal and Cancellation under Section 501 [of the Act]’ (‘the Direction’). Section 499 empowered the giving by the Minister of written directions, among other things, concerning the exercise of powers under s 501. The first document referred to was dated 27 February 2002. It stated that the prosecutor's visa might be liable for cancellation under s 501 and that the Minister himself would personally be making the decision whether to cancel the visa under s 501(2). It was pointed out that, if the decision was to cancel the visa, the prosecutor would not be entitled to have the decision reviewed by the Administrative Appeals Tribunal.

13 The Notice went on to state that in reaching a decision the Minister was to have regard to the prosecutor's criminal record and the Direction. The Notice continued:

‘In preparing any comments please read fully and carefully the contents of the Minister's Direction. You should address each and every topic that you feel applies to you or is relevant to your circumstances. You may also wish to provide any further information that you feel the Minister ought to be aware of and take into account.’

The Notice concluded with an address in the Minister's Department to which the prosecutor should direct any questions or send any written response.

14 Also on 27 February 2002, an officer of the Minister's Department interviewed the prosecutor at the prison where he was confined. A written set of notes of that interview later were signed by the prosecutor on 27 March 2002. On that latter date, the prosecutor took up the invitation in the Notice to respond in writing. He did so by letter with annexures comprising more than 40 pages.

15 In making the Decision, the Minister had before him a document prepared by three officers of his Department and headed ‘ISSUES FOR CONSIDERATION OF POSSIBLE CANCELLATION OF TRANSITIONAL (PERMANENT) VISA UNDER S 501(2) OF THE [ACT]’. This document of 14 pages (‘the Submission’) had annexed to it Annexures A-J. Annexure G was the notes of the interview of 27 February 2002 with the prosecutor; Annexure H was the letter from the prosecutor dated 27 March 2002; Annexure I was the notes of the interview with the prosecutor's foster brother, Mr Zimmermann, conducted on 7 May 2002; and Annexure J was a copy of the transcript of 11 pages containing the remarks on sentencing by Mathews J on 26 February 1993.

Procedural fairness

16 In oral argument, counsel for the prosecutor eschewed the submission attributed to him by the Minister that the requirements of procedural fairness had obliged the...