Case: Osborne v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1113 ; (2002) 124 FCR 416
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 . 33 In Osborne v Minister , French J attempted to balance these competing considerations. In that case, the visa holder, a New Zealand citizen, had committed a number of offences. While in prison he told a Departmental officer that, upon his release, he intended to reside with his mother at a particular address. Following the visa holder's release in September 2000, he lived with his mother for three months but then moved to another address. In July and September 2001, letters were sent to the visa holder at the mother's address, but he received neither of them (although friends told him in September 2001 that a registered letter had been sent to him). The Minister cancelled the visa in February 2002 on character grounds, without having received any representations from the visa holder. 34 French J pointed out (at 423) that there is no express provision in the Migration Act requiring notice to be given to a visa holder as a condition of the exercise of the Minister's power to cancel the visa under s 501. Nevertheless, in his Honour's view: 'prior notice to the visa holder is to be implied as a necessary condition of the power for it cannot be exercised unless: "The person does not satisfy the Minister that the person passes the character test." It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister's intention to cancel. Some process of notification is therefore contemplated even though the Act does not set it out. Indeed the regulations seem to assume as much.' 35 French J considered that the implied condition of notification could not be absolute: 'otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires only that reasonable steps be taken to notify the visa holder. To send a notice of intended cancellation to his last known address is a reasonable step. When that last known address is the address of a close relative of the visa holder, in this case his mother, and with whom he had expressed an intention to resume living, then it is plainly a reasonable process.' 36 His Honour went on to say that the aid of the Migration Regulations (by which he appears to have meant reg 2.55) was not required to determine what was reasonable. He pointed out that, in any event: '[t]hey do not in terms condition the effect of exercise of the power under s 501.' 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. 42 The trial Judge held that the limited and unsuccessful attempts to contact the visa holder constituted a denial of procedural fairness. On appeal, the Full Court followed (at 139 [27]) Osborne v Minister , holding that the requirement in s 501(2) that the visa holder ' does not satisfy the Minister that the [visa holder] passes the character test ' implied that some prior notice had to be given of the Minister's intention to cancel the visa. The Court also held (at 139 [29]) that procedural fairness required the visa holder to be given an opportunity, assuming that the Minister was not satisfied that the visa holder passed the character test, to persuade the Minister not to exercise the discretion to cancel the visa. 43 Their Honours observed (at 139 [30]) that, notwithstanding the principles of procedural fairness, it is open to Parliament to specify circumstances in which notification of a cancellation process is deemed to be given to a person. Parliament can also confer on the Executive power to achieve the same result by regulation. 44 The Minister had relied on reg 2.55(7) to support the conclusion that, since the notice was sent to the visa holder at the address supplied by the Police, he was deemed to have received it. The Court held (at 141 [35]) that reg 2.55, in terms, only applies where the notice is sent to the actual address of the visa holder. The addresses to which the Department dispatched the letters were not and never had been addresses of the visa holder. Their Honours were of the view that reg 2.55(7) had no application to letters sent to an address with which a visa holder never had any connection. 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. 65 The Minister's written submissions acknowledged that French J was correct in Osborne v Minister to observe that reg 2.55 does not condition the exercise of power in s 501 of the Migration Act . The Minister accepted that reg 2.55 applies, by its terms, to circumstances in which the Migration Act or the Migration Regulations require a ' document ' to be given to a visa holder. The submissions gave s 107 of the Migration Act as an illustration of a provision to which reg 2.55 applies. Section 107 authorises the Minister to give visa holders notice of any alleged non-compliance with certain statutory provisions. 66 Although the Minister's written submissions asserted that ' the mechanism ' in reg 2.55 had been complied with, the Minister did not contend that the applicant's claims of a denial of procedural fairness could be met by establishing that the terms of reg 2.55 had been satisfied. When the issue was referred to in oral argument, Mr Kennett confirmed that the Minister's position was that French J had held that reg 2.55 could not apply to a notice relating to the possible exercise of the power of cancellation conferred by s 501 of the Migration Act . Accordingly, the Minister did not dispute that reg 2.55 did not apply and thus did not condition the exercise of the power of cancellation. 67 In the absence of any submission that the Minister is entitled to rely on reg 2.55, at least in this Court, I do not need to consider it further.