Case: Sales v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1807 
Outcome: considered
The applicant's case on this ground relied almost if not entirely on the decision of Allsop J in Sales v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1807 where his Honour held that in the facts and circumstances of that case, the 14 day response period specified in a letter to Mr Sales, informing him that he was liable to the possibility of visa cancellation and deportation, was "plainly inadequate for him to address the task before him" (at [32]) and "was not procedural fairness" (at 36]). 43 Counsel for the applicant submitted that although Sales involved a decision made by the Minister personally, the circumstances of this case include all of the above criteria. Furthermore, like the applicant in Sales , neither the applicant nor her mother could be described as "people of wide or deep resources, or otherwise of significant education" (at [23]). In Sales , Allsop J described Direction 21 as "a comprehensive and careful document" and that the "task to prepare material for a consideration of such matters, objectively understood, is wide-reaching and significant" (at [14]). I was referred to the remarks of Allsop J at [31] to [34] with the submission that they are all applicable to the applicant with the exception that she has not spent "most" of her adult life in prison, however, she has certainly spent a significant part of her adult life in prison. 46 Counsel for the applicant further submitted that the ground of review should be rejected for the following reasons: (1) As neither the Act , nor Direction No. 21, either expressly, or by implication, mandate the consideration of this factor, the failure to take it into account cannot be an error. (2) Any procedural failings by the delegate of the Minister in reaching the original decision could not be relevant in any sense as the Tribunal was making the decision afresh and so any such unfairness was able to be remedied. (3) It is not apparent that there was any relevant unfairness by the delegate. Unlike the case in Sales , this was the second time the applicant had to explain why her visa should not be cancelled, the applicant did not complain that she was unable to respond effectively and she took the opportunity to make submissions, similar in substance, to those later made by her solicitor. 47 In the facts and circumstances of this case, I do not think the 14 day response period in the NOICC denied the applicant procedural fairness. While there are some factual similarities between this case and Sales , they are more apparent than real. Importantly, this was the second time within approximately 18 months that the applicant was called upon to respond to such a notice and her responses in that case resulted in a warning. It was made clear in the NOICC that in making a decision whether to cancel the applicant's visa under s 501(2) of the Act , the Minister or delegate would take into account, amongst other things, the information the applicant supplied on the earlier occasion. 48 This ground of review cannot be sustained. 49 This is undoubtedly a factor to which the Tribunal should have had regard in terms of Direction No. 21 see [2.17(a)] thereof. The applicant submitted that the Tribunal failed to give proper consideration to the length of time the applicant, a New Zealand citizen, had lived in Australia continuously; there is little discussion in the Tribunal's decision concerning the length of time the applicant has resided in Australia and the extent of her ties to her family and the disruptive effects of her visa cancellation. 51 It was further submitted that the Tribunal failed to consider the effects of the visa cancellation on the applicant's ties to her siblings her half brother and her half sisters. I was referred to Sales in which Allsop J suggested that the "bests interests of children", dealt with at [2.13] of the Direction, could also include children who are not direct issue of the person concerned such as the "extended family of the applicant, including nephews and nieces" (at [20]). Finally, the applicant submitted that although the Tribunal asserted that there was no evidence "about the Applicant's relationship with other members of her family or members of the community" (at [38]), there was little inquiry made by the Tribunal into the nature of those relationships when the applicant gave evidence notwithstanding that the applicant was unrepresented. 52 However, it is apparent that the Tribunal did give this factor consideration. At [38] it said: "Disruption would result to the Applicant's family. Her parents reside in Sydney. She maintains that she has a good bonding now with each of them although it is noted neither attended the Hearing. The mother affirmed her 2005 statement. The father did not provide any information to the Tribunal. There was not any evidence about the Applicant's relationship with other members of her family or members of the community." 53 I also reject the inference, implicit in the submissions that there was little inquiry made by the Tribunal into the nature of those relationships when the applicant gave evidence, that the Tribunal was in some way under a duty to make inquiry because the applicant was unrepresented.