Case: Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: referred to
The rules of procedural fairness apply to the exercise of the power in s 501(2) of the Act: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 (" Lam "). 31 The applicant submits that the matter the Minister took into account the fact that the applicant did not have children was a matter in favour of cancelling his visa stood outside the terms of Direction No 21. The applicant submits that he was not given the opportunity to comment upon whether that was a matter the Minister should take into account. The applicant submits that there had been a breach of the rules of procedural fairness and he put two alternative submissions. 32 First, he submits that he was led to believe that the Minister would make his decision by reference to the matters in Direction No 21 and only by reference to those matters. That submission requires an examination of the two letters sent to the applicant inviting him to make submissions in support of his contention that his visa should not be cancelled. In the letter from the Department dated 7 August 2006 the following passage appears: " Should your visa be cancelled? If the Minister or a delegate makes a determination that he or she reasonably suspects that you do not pass the character test, and you fail to satisfy him or her that you do pass the character test, the Minister or the delegate will then consider whether your visa should be cancelled. Considerations to be taken into account if decision is made by a delegate In considering whether to exercise the power under s 501(2) to cancel your visa, a delegate will be required to follow directions given by the Minister under s 499 of the Migration Act . Those directions are contained in Direction No 21 ('Direction under Section 499 Visa Refusal and Cancellation under Section 501 Migration Act 1958 '). I have attached a copy of Direction No 21 for your information. Considerations to be taken into account if decision is made by the Minister If the decision in relation to cancellation of your visa is made by the Minister, although she may decide to have regard to the matters discussed in Minister's Direction No 21, she is not required to give consideration to those matters. Your opportunity to comment Before the Minister or delegate considers whether to cancel your visa under s 501(2) , you are provided with an opportunity to comment. You may provide information and comments in relation to: &#61863; whether you fail the character test; and &#61863; whether your visa should be cancelled. In making a decision whether to cancel your visa under s 501(2) , the Minister or delegate will take the following information into account already available to the Department: &#61863; Offender History Report (Attachment A) &#61863; Certificate of Record for the sentence of 02/07/2003 (Attachment B) &#61863; Judge's sentencing remarks of 02/07/2003 (Attachment C) &#61863; Report by Community Corrections Officer dated 21/06/2006 (Attachment D) The Department has also obtained reports from the Parole Board of SA. These reports have been classified as 'non-disclosable information' pursuant to Section 5(1) of the Act and can not [sic] be released to you, however you are invited to comment. If there is any additional information that you wish the Minister or delegate to consider, you must give that information to the Department. If you do not provide any further information the Minister or a delegate may rely upon the information set out above to determine that your visa are [sic] are liable to cancellation under s 501(2) of the Migration Act . In preparing your 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 provide any further information, apart from those considerations found in the Minister's Direction, that you feel the Minister or delegate ought to be aware of and take into account." 36 In my opinion, there are two answers to that submission. First, I am not satisfied that it can be inferred that the correspondence from the Department would have led to the belief (based on reasonable grounds) that the topic of children and the best interests of children would only be dealt with in the manner contemplated by Direction No 21 and not otherwise. In this case it is a matter of looking at what may be reasonably inferred from the letters sent by the Department and other circumstances. It was not contended that the applicant's actual belief is relevant; in any event there was no evidence of his belief. It seems to me that the significance to the decision of having a family including children in Australia or not having a family for a person facing the cancellation of their visa would be obvious. Furthermore, I note that although it appears under the heading of "Other considerations" in Direction No 21, the Direction identifies "family composition of the non-citizen's family, both in Australia and overseas" as a relevant consideration: cl 2.17(d). Secondly, I do not think it can be said that any practical injustice has been shown: Lam at 14 [38] per Gleeson CJ, at 34-35 [106] per McHugh and Gummow JJ. I realise that the Court must be careful not to engage in a determination of the merits of a decision under the guise of considering an argument as to futility. However, in this case I do not think there was any practical injustice to the applicant. In practical terms he was afforded a full opportunity to be heard on the matters ultimately taken into account by the Minister. 37 In my opinion, the application must be dismissed. I will hear the parties on costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 17 August 2007 Counsel for the Applicant: Mr S Ower Solicitor for the Applicant: McDonald Steed McGrath Counsel for the Respondent: Dr C Bleby Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 June 2007 Date of Judgment: 17 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1249.html