Case: Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807
Outcome: distinguished
The applicant claims that he was denied procedural fairness because he was in communal detention at the time of the "purported notice and cancellation", that he did not have a lawyer or migration agent to assist him and that he informed the Minister of these circumstances. In support of this submission he cited Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807. The facts in Sales bear some similarity in that Mr Sales was also in custody when he was notified of the intention to consider cancellation of his visa and given 14 days within which to respond. The seven page letter containing the notice of intention to consider cancellation also resembles that received by the applicant. It was described by Allsop J at [12]- [14] as follows: The letter dealt with the character test and whether his visas would be cancelled. On page 3 of the letter the applicant was advised of the considerations that would be taken into account if the decision was made by a delegate or if made by a Minister. It was not clear to the applicant who would make the decision, but in either case direction number 21 was said to be relevant. If the decision were to be made by a delegate it was mandatory and if it were to be made by the Minister it would be a direction to which the Minister could have regard. Thus direction number 21 was a document which was highly relevant to any applicant and this applicant to consider in relation to the position that such a person and this person would face under s 501. The letter included a number of other documents including extracts from the Act, the applicant's criminal history, pre-release reports of various dates, parole reports and a copy of the sentencing judge's remarks. Page 7 of the letter sets out in detail the documents which the applicant recognised receiving. The letter urged the applicant to read fully and carefully the contents of the Minister's direction. It urged him to address each and every topic that he felt applied to him or that was relevant to his circumstances and to provide any other information which he thought was relevant. The direction is a comprehensive and careful document of 11 pages. It makes clear in the preamble that the exercise of the discretion whether or not to cancel the visas will take into account a wide range of factors including the protection and the expectations of the Australian community, the nature of the crimes committed, the non-citizen's links to Australia and any relevant international law obligations of Australia. The preamble went on to say that the purpose of refusing or cancelling a visa under s 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community. The task to prepare material for a consideration of such matters, objectively understood, is wide-reaching and significant. 17 His Honour held that a 14 day period was "plainly inadequate" for Mr Sales to address the task before him. His Honour focused not only on the complexity of the task but also on the fact that Mr Sales was in custody; that he had spent a significant part of his youth in an institution; that he had suffered from heroin and alcohol addiction; that he was not well educated and that his own and his family's resources were not extensive. Allsop J stated at [34]: Fourteen days for this man, in prison, with a background of incarceration, drug and alcohol addiction and otherwise of the background revealed by the papers was manifestly inadequate to undertake and complete the task before him. 18 His Honour held that Mr Sales was not accorded procedural fairness. In reaching this conclusion Allsop J did not suggest that the Minister had any obligation in relation to the difficulties facing Mr Sales other than to allow him adequate time. 19 The applicant here does not complain that the time allowed for him to respond (approximately two months) was inadequate. His complaint seems to be that the Minister did nothing to address the difficulties that he was facing because he was in custody and without professional advice. Whether procedural fairness has been accorded is always a matter of degree. Despite the similarities between the position of Mr Sales and the applicant, in my view the facts here are distinguishable. The time allowed to the applicant was not inadequate, and, in the circumstances, it is my opinion that there was not a breach of the obligation to grant procedural fairness.