Case: Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 ; (2004) 138 FCR 450
Outcome: discussed
The Minister relies on the decisions of French J in Osborne v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1113 ; (2002) 124 FCR 416 and of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 ; (2004) 138 FCR 450. These authorities are said to stand for the principle that the requirements of procedural fairness are satisfied if the Department or Minister has made reasonable efforts to notify the visa holder that cancellation of the visa is under active consideration. In this case, the Department had made such efforts over a period of time, including the inquiry made of Centrelink after the notice of intention to consider cancellation of the applicant's visa, sent on 28 June 2007 had been returned undelivered. The Minister submits, therefore, that the present case falls within the principle established by Osborne v Minister and Minister v Ball and that the applicant was not denied procedural fairness despite not receiving any of the three notices sent to him. 29 In his oral submissions, Mr Karp, who appeared for the applicant, contended that the Department had not made reasonable efforts to ensure that the notice of intention to consider cancellation of the visa actually came to the attention of the applicant. He argued that there were obvious steps that the Department could and should have taken once the notice of 28 June 2006 was returned undelivered. In the absence of evidence that the Department had made additional inquiries, the present case could not be said to be governed by the principle applied in Osborne v Minister and Minister v Ball . 37 Osborne v Minister was followed by the Full Court in Minister v Ball . In the latter case, the notice was sent by the Department to an address in Kalgoorlie supplied by the visa holder when she had appeared in court charged with an offence in January 2003. It was also the address she had supplied to the Australian Taxation Office in March 2002. The Department sent the notice on 29 January 2003, but the visa holder had moved to Melbourne a few days earlier. The notice was returned to the Department ' unclaimed ' on 11 March 2003. 41 Shortly after the decision in Minister v Ball , a Full Court addressed similar issues in Minister v George , although the judgment of the Court made no reference to the earlier decision of the Full Court. In Minister v George , the Department sent two letters to the visa holder. The first was sent to an address held by the Department, but it was returned undelivered. The second was sent to an address supplied by the Western Australian Police. The visa holder was not living at this address at the time, although he commenced living there later. The second letter was not returned to the Department, but the visa holder received neither letter. The Minister subsequently cancelled her visa. The Minister believed at the time he made the decision that the visa holder had been notified of the cancellation process and had not taken up the invitation to make submissions. 48 It is not easy to reconcile the Full Court decisions in Minister v Ball and Minister v George . In each case, so it would seem, the Minister erroneously believed on reasonable grounds that the visa holder had been notified of the intention to consider cancellation of the visa. In George such a finding was express. In Minister v Ball it is to be inferred from the finding that the Departmental Issues Paper informed the Minister that the visa holder had been notified and had not responded, but did not inform the Minister that the notice sent to the visa holder had been returned undelivered. The precise holding in Minister v George was that the Minister committed a jurisdictional error by acting on his erroneous belief that the visa holder had received actual notice that cancellation of the visa was under active consideration. 53 The question of whether the Minister or the Department has taken reasonable steps is a question of fact, dependent upon the particular circumstances of the case. In Osborne v Minister , French J thought that sending the notice to the last address provided by the visa holder, which in fact had been his address for three months after his release, was reasonable. His Honour was fortified in that conclusion by the fact that the address was that of the visa holder's mother and the further fact that the registered letter sent to that address had not been returned. In Minister v Ball , the Court was influenced by the absence of any alternative address for the visa holder and the failure of the visa holder's counsel to identify any further step that the Department could reasonably and practically take to notify the visa holder that cancellation was under consideration.