Case: Minister for Immigration and Multicultural and Indigenous Affairs v George [2004] FCAFC 276 ; (2004) 139 FCR 127
Outcome: discussed
Regulation 2.55 of the Migration Regulations was made pursuant to the powers conferred by s 504(1)(e) and (3) of the Migration Act : Minister for Immigration and Multicultural and Indigenous Affairs v George [2004] FCAFC 276 ; (2004) 139 FCR 127 , at 140 [33], per curiam . Regulation 2.55 applies, among other cases to ' the giving of a document to a holder ... of a visa relating to the proposed cancellation ... of a visa ': reg 2.55(1)(a). Regulation 2.55(3) provides that a document of this kind must be served in one of a number of specified ways including: '(c) by dating it, and then dispatching it: (i) within 3 working days (in the place of dispatch) of the date of the document; and (ii) by prepaid post ... to the person's last residential address ... known to the Minister.' 9 Regulation 2.55(7) provides that if the Minister gives a document to a person by dispatching it by prepaid post, the person is taken to have received the document seven working days after the date of the document. 10 The applicant, his partner and one of their three children gave affidavit evidence in the proceedings. Counsel for the Minister, Mr Kennett, did not object to any portion of the affidavits read on behalf of the applicant. Nor did Mr Kennett cross-examine any of the deponents. There is therefore no dispute about the underlying facts. 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. 45 The Minister's alternative contention in Minister v George was that procedural fairness had been satisfied because reasonable steps had been taken to notify the visa holder. The Court considered (at 142 [40]) that this contention raised the following question: 'where notice is sent to an address that was believed by the Minister or his officers, on reasonable grounds, to be the current residential address of a visa holder, does that satisfy the prerequisite of procedural fairness, when the address has never in fact been an address of the visa holder?' 46 Their Honours answered this question in the negative (at 145 [53]): 'Where the Minister believes, erroneously, albeit on reasonable grounds, that a visa holder has been notified and proceeds on that untrue basis, there will be an error. The question is whether that error is a jurisdictional error. In order to determine whether a particular order is jurisdictional, it is essential to consider the relevant statutory context. ... In circumstances where a visa entitles the holder to permanent residence in Australia and cancellation will render that person liable to detention and removal from Australia, a mistake as to whether the person has been notified of the intention to consider cancelling the visa is a very significant one. Such a mistake will be even more significant if the consequences of the cancellation of a visa entitling the holder to permanent residence in Australia may include separation from his family and removal to a country with which he no longer has any social connection. Such a mistake acted upon as it was here, must be regarded as going to the jurisdiction of the decision-maker to cancel the visa where procedural fairness is required before doing so. Failure to do so will normally involve jurisdictional error, notwithstanding that what occurred was subjectively fair from the point of view of the decision-maker, because, on the material and information available to the decision-maker, it was reasonable to conclude that a right to be heard had been afforded. Of course, this general statement is subject to any contrary indications within the relevant statutory scheme including, in this case, the deeming provisions within the Act. However, for the reasons already given, they do not assist in this case.' 47 The Court recognised (at 145 [54]) that there might be circumstances where the procedure followed by the Department is fair, even though the visa holder does not receive the notice. Their Honours gave the example of a person who avoids communicating with the Minister because of a fear that the communication may be detrimental. They also observed (at 146 [54]) that between the clear-cut cases: 'there will be some circumstances which involve lack of procedural fairness and others where there will be no want of procedural fairness.' 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. 50 In view of the decision in Minister v George , it may have been open to Mr Karp to argue on behalf of the applicant that the Minister must have erroneously believed, at the time of the cancellation decision, that the applicant had received actual notification of the intention to consider cancelling the visa. It was obvious from the Issues Paper that the applicant had not received the third notice of 28 June 2007. However, the Issues Paper recorded that ' Receipt of one of the Notices [of 10 January 2000] was confirmed by Australia Post on 15 January 2007 '. This may have supported an inference that the Minister took the Issues Paper to imply that the applicant had received the second notice of 10 January 2007, particularly as a person not familiar with the applicant's signature could well have read the signature as that of the applicant. But Mr Karp made no such submission. 51 Mr Kennett appreciated the potential difficulty for the Minister's case if the applicant submitted that the Court should find that the Minister erroneously believed that the applicant had received the second notice. At the conclusion of his oral submissions, Mr Kennett expressly noted that the applicant had made no suggestion to this effect and that it was therefore not necessary for him to deal with the decision in Minister v George . The Minister's submissions, like those of the applicant, proceeded on the basis that the Minister had not formed a belief that the applicant had actually received a notice warning him that consideration was to be given to cancelling his visa. 52 Mr Kennett accepted that, since the applicant had not been actually notified of the cancellation process, he had been denied procedural fairness unless the Minister could show that reasonable steps had been taken to notify the applicant that the process was under way. Mr Kennett pointed out that the Minister's acceptance of this proposition potentially left room for reg 2.55 to operate by deeming service of the notice to have been effected. However, as will be seen, Mr Kennett placed no reliance on reg 2.55 in the circumstances of this case. 54 In assessing the reasonableness of the Minister's actions, it is appropriate, in my view, to take account of the serious consequences to the visa holder of a cancellation of his or her visa. Although perhaps the point is self-evident, the Full Court in Minister v George (at 145 [53]) emphasised the potentially devastating consequences of a decision to cancel the visa of a permanent resident of Australia. A useful analogy is the principle that in applying the standard of proof on the balance of probabilities, a court takes account of the seriousness of the factual issue and of the gravity of the consequences flowing from a particular adverse finding: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 , at 343-344, per Latham CJ; at 362-363, per Dixon J. By parity of reasoning, the circumstances relevant to the reasonableness of the Department's attempts to notify a visa holder include the gravity of the consequences for that person of a decision to cancel his or her visa.