Gunner v Minister for Immigration and Multicultural Affairs

[1997] FCA 1492

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - cancellation of visa - application to review decision of the Minister to cancel the applicant’s visa and declare him an excluded person under ss 501 and 502 of the Migration Act 1958 (Cth) - previous decision by the Administrative Appeals Tribunal setting aside an order made by a delegate of the Minister that the applicant be deported under s 200 and 201 of the Act by reason of his conviction and imprisonment for a series of offences committed in Australia - direction by the Tribunal that the applicant not be deported - whether the general power to cancel a visa under s 501 applies where the criteria in s 201 are satisfied - whether s 501 authorises the cancellation of a visa on the basis of the same facts and circumstances already considered in a determination by the AAT under s 200.

Administrative Appeals Tribunal Act 1975 (Cth), s 43(1).
Migration Act 1958 (Cth), ss 200, 201, 476(1), (3), 500, 501, 502, 503.
Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth).

D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed 1996).

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, distinguished.
Downey v Trans Waste Pty Ltd (1991) 172 CLR 167, distinguished.
FAI Insurance Ltd v Winneke (1982) 151 CLR 342, cited.
Grofam Pty Ltd v ANZ Banking Group (1993) 45 FCR 445, distinguished.
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, cited.
Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136, cited.
Minister for Immigration and Ethnic Affairs v Keenan (1993) 47 FCR 244, distinguished.
Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364, cited.
Potter v Minahan (1908) 7 CLR 277, cited.
Re Bolton; Ex parte Beane (1987) 162 CLR 514, cited.
Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Livestock Corporation (1980) 44 FLR 455, cited
Saraswati v The Queen (1991) 172 CLR 1, cited.
Swan Hill Corporation v Bradbury (1937) 56 CLR 746, cited.

PAUL WILLIAM GUNNER V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 533  OF 1997

SACKVILLE J
19 DECEMBER 1997
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 533  of   1997

BETWEEN:	PAUL WILLIAM GUNNER APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		SACKVILLE J.
DATE OF ORDER:		19 DECEMBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The Minister’s decision, made on 10 June 1997, to cancel the applicant’s visa under s 501 of the Migration Act 1958 (Cth) (“the Act”) and declare him an excluded person under s 502 of the Act be set aside.

2. The Minister pay the applicant’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 533  of 1997

BETWEEN:	PAUL WILLIAM GUNNER APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J.
DATE:	19 DECEMBER, 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE PROCEEDINGS
Sometimes important issues of principle are raised by people who might be thought by some not to be particularly deserving of sympathy. The applicant, who was granted permanent residence in Australia in 1992, is currently serving a term of imprisonment, having been convicted in 1994 of a number of serious offences. In 1996, a delegate of the Minister made a deportation order against the applicant under s 200 of the Migration Act 1958 (Cth) (“Migration Act”), based on his criminal convictions in Australia. 

The deportation order was overturned by the Administrative Appeals Tribunal (“AAT”), on an application for review of the delegate’s decision. Among other things, the AAT found that the risk of the applicant re-offending was at “an acceptably low level”. The Minister, acting personally, subsequently made a decision under s 501 of the Migration Act to cancel the applicant’s visa, on the ground that the applicant was not a person of good character. The Minister, again acting personally, also declared the applicant to be an “excluded person” under s 502 of the Migration Act, thereby precluding him from applying to the AAT for review of the decision to cancel his visa. I was informed that this is the first case in which the Minister has exercised the powers conferred by s 502, although I was told that the power was also exercised in another matter on the same day.

The applicant challenges the most recent decisions of the Minister on the ground that the Minister did not have power under ss 501 and 502 of the Migration Act to cancel the applicant’s visa or to declare him to be an excluded person.  He also challenges the decisions on the ground that the Minister made the decisions for a collateral and improper purpose, namely, to overturn the decision of the AAT in the applicant’s favour.  The applicant relies on subss 476(1) and (3) of the Migration Act, the relevant portions of which are as follows:

“476(1)          Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

...

(c)       that the decision was not authorised by this Act or the regulations;
(d)      that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e)       that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
...
476(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a)      an exercise of a power for a purpose other than a purpose for which the power is conferred;
...”

THE LEGISLATION
Part 2 of the Migration Act is headed “Control of Arrival and Presence of Non-Citizens”. Division 9 of Part 2 (ss 200-206) deals with “Deportation”.

Section 200 provides that the “Minister may order the deportation of a non-citizen to whom this Division applies”. Section 201 is as follows:

“201.   Where:

(a)a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b)when the offence was committed the person was a non-citizen who:

(i)had been in Australia as a permanent resident:

(A)for a period of less than 10 years; or

(B)for periods that, when added together, total less than 10 years; or

(ii)...; and

(c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year:

section 200 applies to the person.”

Section 203 applies s 200 to non-citizens who are convicted in Australia of certain serious offences, such as treason (s 24 of the Crimes Act 1914 (Cth)), sabotage (s 24AB) or inciting mutiny (s 25). Section 203 is not confined to permanent residents who commit the nominated offences: it applies to any person convicted in Australia of the offences, provided that at the time of commission of the offence, he or she was not an Australian citizen. Where the Minister makes an order for deportation of a person, that person must, unless the Minister revokes the order, be deported accordingly: s 206(1).

Section 500 provides for review of decisions of the Minister under s 200 and under s 501:

“500(1)          Applications may be made to the Administrative Appeals Tribunal for review of:

(a)decisions of the Minister under section 200 because of circumstances specified in section 201; or

(b)decisions of the Minister under section 501;

other than decisions to which a certificate under section 502 applies; or

(c)...

(2)      A person is not entitled to make an application under paragraph (1)(a) unless:

(a)      the person is an Australian citizen; or

(b)the person is a lawful non-citizen whose continued presence in Australia is not subject to any limitation as to time imposed by law.

(3)      A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b)...unless the person would be entitled to seek review of the decision under Part 5 or 7 if the decision had been made on another ground.

(4)      Decisions referred to in subsection (1) are not reviewable under Part 5 or 7.

...

(7)      In this section, ‘decision’ has the same meaning as in the Administrative Appeals Tribunal Act 1975.”

The powers of the AAT on review are those set out in s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”): see s 25(1), (4) of the AAT Act. By s 43(1) the AAT may exercise all the powers and discretions that are conferred by the Migration Act on the decisionmaker.  The AAT is to make a decision in writing:

“43(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing -

(a)      affirming the decision under review;
(b)      varying the decision under review; or
(c)       setting aside the decision under review and -

(i)making a decision in substitution for the decision so set aside; or

(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”

It is important to note that the present position, so far as the powers of the AAT are concerned, is different from that obtaining prior to the enactment of the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth) (the “1992 Amendment Act”), most of the provisions of which came into force on 24 December 1992.  The AAT Act, as originally enacted, provided for review by the AAT of criminal deportation decisions (which at that time were made under s 12 of the Migration Act): see Part XXII of the Schedule to the AAT Act.  The AAT’s powers were, however, confined to either affirming the deportation decision or remitting the matter for reconsideration in accordance with the AAT’s recommendations: Part XXII, cl 22(3).  It was precisely the absence of a power in the AAT to substitute its own decision for that of the Minister that led to the revocation of the grant of special leave to appeal by the High Court in Minister for Immigration and Ethnic Affairs v Pochi (1982) 149 CLR 139.

The Statute Law Revision Act 1981 (Cth) repealed Part XXII of the Schedule to the AAT Act, but inserted a provision to the same effect in the Migration Act: Statute Law Revision Act, ss 4, 60. That provision was then numbered s 66E, but was later renumbered to s 180. The 1992Amendment Act amended s 180 of the Migration Act, so that it took substantially the same form as the present s 500 of the Migration Act, although some of the amendments did not take effect until 1 September 1994, the date most of the provisions of the Migration Reform Act 1992 (Cth) came into force. The 1992 Amendment Act, inter alia, repealed s 180(3) (which confined the AAT’s powers in relation to criminal deportation decisions to affirming the decision or remitting the matter for reconsideration in accordance with the AAT’s recommendations) and thus provided for the powers set out in s 43(1) of the AAT Act to be available in a review by the AAT of a criminal deportation decision. Section 180 was later renumbered as s 500, the current form of which is reproduced above.

The 1992 Amendment Act also introduced the sections substantially to the effect of those now contained in s 501-503 of the Migration Act (originally numbered as ss 180A-180C).

Section 501 confers on the Minister what is described in the hearing as a “special power to refuse or cancel [a] visa or entry permit”. It provides as follows:

“501(1)          The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

(a)       subsection (2) applies to the person; or

(b)the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:

(i)be likely to engage in criminal conduct in Australia; or

(ii)vilify a segment of the Australian community; or

(iii)incite discord in the Australian community or in a segment of that community; or

(iv)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way.

(2)      This subsection applies to a person if a Minister:

(a)       having regard to:

(i)        the person’s past criminal conduct; or

(ii)       the person’s general conduct;

is satisfied that the person is not of good character; or

(b)is satisfied that the person is not of good character because of the person’s association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.

(3)      The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.”

Section 502 confers on the Minister a power to decide in the national interest that certain persons are to be excluded persons:

“502(1)          If:
           (a)       the Minister, acting personally, intends to make a decision:

(i)under section 200 because of circumstances specified in section 201; or

(ii)under section 501; or

(iii)...

in relation to a person; and

(b)the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;

the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.

...

(3)      If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made.”

Section 503 provides as follows:

“503(1)          A person in relation to whom a decision has been made:

(a)under section 200 because of circumstances specified in section 201; or

(b)       under section 501; or
           (c)       ...;
is not entitled to enter Australia or to be in Australia at any time during the period determined under the regulations.

(2)      The period referred to in subsection (1) commences, in the case of a person who has been deported or removed from Australia, when the person is so deported or removed.”

It will be seen that s 501 provides for the cancellation of a visa by the Minister. Other provisions of the Migration Act confer power on the Minister to cancel visas.  For example,    s 116(1) confers power on the Minister to cancel a visa on a variety of grounds, including that

“(e)the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community”.

However, the power in s 116(1) cannot be exercised in relation to the holder of a permanent visa who is in the migration zone (that is, in Australia): s 117(2).  By contrast, s 109, which enables the Minister to cancel a visa where the holder has supplied incorrect information in relation to his or her application for the visa, applies whether the visa is temporary or permanent. 

Section 118 provides as follows:

“The powers to cancel a visa under:
           (a)       section 109 (incorrect information); or
           (b)       section 116 (general power to cancel); or
           (c)       section 128 (when holder outside Australia); or
           (d)       section 134 (cancellation of business visas); or
           (e)       section 140 (consequential cancellation of other visas); or
           (f)       section 501 (special power to refuse or cancel);
are not limited, or otherwise affected, by each other.”

The consequences of cancellation of a visa are provided for in Part 2, Divisions 1, 7 and 8. If a visa is cancelled, its former holder, if in the migration zone, becomes an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect: s 15. An officer who knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen must detain that person: s 189. (See also s 192, providing for detention of visa holders whose visas are liable to cancellation.) An unlawful non-citizen detained under s 189 must be kept in detention until he or she is removed from Australia under s 198, deported under s 200 or granted a visa (s 196(1)). Section 198 provides that an officer must remove from Australia an unlawful non-citizen who is a detainee and who has not applied for a further visa or who, having applied, has been refused a fresh visa (s 198(5),(6)).

THE FACTS
The applicant was born in 1964 and is a British citizen.  After some earlier visits, he re-entered Australia in June 1989.  He subsequently commenced a de facto relationship with Ms Ashby, who gave birth to their son on 31 January 1991.  On 6 April 1992, the applicant was granted permanent residence based on his de facto relationship with Ms Ashby, an Australian citizen.

On 12 April 1992, the applicant left Australia for England.  He was arrested soon after his arrival there, on charges that he had conspired to cheat and defraud Westpac Banking Corporation, by fraudulently completing travellers’ cheques with a face value of millions of dollars.  After spending six months in prison in England, he was extradited to Australia on 27 October 1992.

The applicant was kept in custody until 31 December 1992, when he was granted bail.  He remained on bail until 2 March 1994, when he was arrested on seventeen counts of larceny. These offences involved systematic thefts from parked delivery vans in Sydney’s Central Business District.  The applicant was denied further bail. 

On 23 June 1994, he pleaded guilty to the charges of conspiracy to cheat and defraud and to the stealing charges.  He also pleaded guilty to charges of giving a corrupt reward and conspiracy to obtain a passport unlawfully.  The corruption offence was committed between December 1993 and March 1994, while the passport offence was committed early in 1994.

Judge Johnston of the District Court sentenced the applicant to a minimum term of two years and six months in respect of the conspiracy to cheat and defraud Westpac; a minimum term of twelve months in respect of the corruption offence; a fixed term of nine months in respect of the passport offence; and a minimum term of two years in respect of each larceny offence.  The effect of these sentences was to sentence the applicant to a minimum term of imprisonment expiring on 25 September 1998.

The Crown subsequently appealed against the inadequacy of the sentences pronounced by Judge Johnston.  The New South Wales Court of Criminal Appeal allowed the appeal in relation to the larceny counts, substituting a minimum term of three and a half years in respect of each count.  The Court ruled that the earliest date the applicant could be considered for parole was 24 March 2000.

On 6 March 1996, a delegate of the Minister made a deportation order against the applicant, pursuant to ss 200 and 201 of the Migration Act. The delegate’s decision was based on the fact that the applicant had been convicted in Australia of offences and had been sentenced in respect of some of them to a term of imprisonment not less than one year (see s 201). On 25 March 1996 the applicant sought review of the delegate’s decision, pursuant to s 500(1)(a) of the Migration Act.  On 4 April 1997, the AAT set aside the deportation order and remitted the matter to the Minister with a direction that the applicant not be deported.

Deputy President Chappell gave detailed reasons for the decision of the AAT.  He referred to the terms of the criminal deportation policy issued in a statement to Parliament by the then Minister in May 1983 and which was revised in December 1992 (the “Guidelines”).  He found that the applicant had been engaged in “organised criminal activity” as that expression was used in the Guidelines and thus was liable to deportation in terms of those Guidelines.

Having reached this unsurprising conclusion, the Deputy President addressed the Guidelines’ criteria for deportation, including “the overarching responsibility of this Tribunal, sitting in the shoes of the Minister, to protect the safety and welfare of the Australian community”.  He found that the risk of recidivism by the applicant was low; that the applicant had expressed remorse for his crimes; and that he had assisted authorities in recovering some of the stolen travellers’ cheques.  The applicant’s prospects of successful reintegration into the Australian community depended to a significant degree upon the continuation of the strong emotional bonds he had with Ms Ashby and their son.  There was also evidence from a psychologist that the child had a strong emotional attachment to the applicant, despite their physical separation, and that it was in the child’s interests for the father to remain in Australia.

Having regard to the provisions of the International Convention on the Rights of the Child (the “Convention”), the Deputy President found that the child’s interests would be served if the applicant were permitted to remain in Australia.  He noted, however, that although important, this finding was not conclusive of the question of whether the deportation order should be set aside.

The Deputy President expressed the view that this was not a case in which the applicant (in the words of the Guidelines) had committed an offence “so offensive to Australian community standards that the community rebels against having within it a person who has committed such an offence”.  The most material question, in terms of the Guidelines, was whether the applicant constituted a threat to the Australian community because of the risk that he would commit further offences if allowed to remain.  On the evidence before him, the Deputy President concluded that

“the risk involved of Mr Gunner re-offending is at an acceptably low level which guarantees adequate protection of the safety and welfare of the Australian community and does not demand that he be deported from the country.”

On 2 May 1997, the Acting Assistant Secretary of the Compliance and Enforcement Branch of the Department of Immigration and Multicultural Affairs (the “Respondent”) prepared a minute to the Minister, with a copy to the Secretary of the Department, seeking “guidance on whether to pursue an appeal to the Federal Court against [the] decision by the AAT”.  The minute set out four “basic options”:

“1.      Accept the decision of the AAT;

2.      Appeal the decision of the AAT to the Federal Court;

3.      For you to consider the question of deportation;

4.Consider cancellation of the visa on character grounds under section 501 of the Act.”

The minute made the following comments about options 3 and 4:

“Option 3 Consider the Deportation Afresh

13. Despite the decision of the AAT, you are personally able to consider the deportation of Mr Gunner and to consider issuing a certificate declaring Mr Gunner to be an excluded person under section 502 of the Act. This would have the effect of preventing a review by the AAT of your decision to deport Mr Gunner. However, it is necessary when issuing an exclusion certificate, you are satisfied that, due to the seriousness of the circumstances, the deportation decision is in the national interest.

14.      This, no doubt, would result in an appeal against your decision to the Federal Court by Mr Gunner.  It would then be possible for Mr Gunner to run the argument of unreasonableness of your decision.  This would have some weight in that there has not been any change of circumstances since the decision of the AAT.  The Federal Court would also be concerned about what would be seen as action to undermine the decision of the AAT which was not regarded as flawed as an appeal was not made against the decision of the AAT.

15.      This course of action under 502 would also raise questions to be considered by the Federal Court as to the types of offence in which section 502 is an appropriate measure.

Option 4 Cancel the Visa on Character Grounds

16.      There is the power under section 501 to cancel Mr Gunner’s visa on the basis of his past criminal conduct, culminating in a six years prison sentence.  As with a decision by you personally to issue a deportation order, you could also issue a certificate pursuant to section 502, preventing a review of your decision by the AAT.  The comments in paragraphs 13-15 relating to the issue of an exclusion certificate are equally applicable.

17.      It should be noted also that it has been the practice that where there is the option of deportation or visa cancellation, that deportation would be followed.”

On 26 May 1997, the Director of the Compliance Section wrote to the applicant at the Long Bay Correctional Centre advising that the Minister had indicated that he proposed personally to examine whether to cancel the applicant’s visa under s 501 and to declare the applicant an excluded person under s 502. The letter advised that the matters to be taken into account by the Minister could include the following:

“·       the convictions for 17 counts of larceny, giving a corrupt reward, conspiracy to defraud Westpac of $16 million, conspiracy to obtain an Australian passport,

·     the length of the sentence imposed by the court,

·     the serious nature of the crimes

·     the judge’s comments in sentencing

·     the fact that you committed larceny offences while awaiting trial

·     the larceny offences constituted organised criminal activity

·     your departure to the UK leaving your wife and child in Australia

·     that your child has been born at the time you committed the crimes

·    

your crimes were committed while you were an applicant for

permanent residence, and that you committed other crimes within two

years of permanent residence;

·     the lack of contribution to the community

·    

the implications that your behaviour has for your respect for the laws

of Australia, the Australian Government and for others in the

Australian community.”

The Minister invited comment from the applicant.

The solicitor for the applicant responded to this invitation by letter dated 2 June 1997. The letter contended that the applicant did not come within ss 501 and 502 for reasons falling under two headings, namely, “emotional” and “legal”.

Under the first heading, the letter set out extracts from the psychologist’s report considered  by the AAT and referred to evidence given to the AAT by Ms Ashby and also to the AAT’s reasons.  The letter attached a copy of the psychologist’s report and of short statements prepared by the applicant and Ms Ashby for the purposes of the AAT proceedings.

Under the heading “Legal” the letter submitted that a finding could not be made that the applicant was not then of good character.  Again, the letter set out extracts from the AAT’s reasons.  Reliance was placed on a number of statements, such as those made by Judge Johnston on sentence and by the Parole Service of Long Bay Correctional Centre, all of which were before the AAT.  The letter also briefly responded to each of the matters identified in the Minister’s letter.  The response suggested that the assertion that the applicant had departed for the United Kingdom without his wife and child was false, supporting that claim by copies of passports held by Ms Ashby and the child.

The letter included the following submissions:

“15.We submit that a person who has a finding an independent [sic] Tribunal such as the AAT that they have an acceptably low level of risk of re-offending cannot be said to be a person not of good character.

...

21.As you are no doubt aware, the decision of the AAT in respect of the deportation order against our client has been appealed by the Minister in the Federal Court and we submit that no action should be taken in respect of Sections 501 and 502 until such time as a final determination of those proceedings.

22.It would seem to us that taking action under ss 501 and 502 while proceedings in relation to a deportation order are currently proceeding is tantamount to saying that the Minister is not paying due regard to any finding of the Court and will take action to achieve the same result as deportation irrespective of the finding of the Court.

23.We submit that a person should not be subject to double jeopardy and that the Minister should determine whether action will be taken under either ‘deportation’ or ‘cancellation’ provisions and accept the results of consideration of matters by the relevant Courts and Tribunal.”

On 5 June 1997, the Assistance Secretary of the Compliance and Enforcement Branch prepared a further minute to the Minister. The minute recorded that the Minister had asked that details relating to the applicant be provided so that the Minister could give “consideration under the provisions of [s] 501 of the Act”. It also recorded the correspondence to which I have just referred. The purpose of the minute was said to be to submit the applicant’s details for the Minister’s consideration under s 501 and to obtain the Minister’s decision on:

• whether in the Minister’s view the applicant was not of good character;

• whether the Minister wished to cancel the applicant’s permanent residence visa; and

• if so, whether the Minister wished to declare the applicant to be an excluded person under s 502.

The minute described the background to the AAT’s decision; set out the applicant’s personal details and family composition; summarised the applicant’s convictions and the sentences that had been imposed; referred to comments made by the trial judge and by the “appeal judge” in “the Criminal Appeal Court”; and briefly summarised the major findings made by the AAT.  Under the heading “Questions of Good Character”, the minute said this:

“23.     In all, Mr Gunner has spent a little over one year as a permanent resident in Australia not in prison.  He was committing a crime while awaiting his permanent residence to be granted and was committing crimes while on bail pending his prosecution on charges for cheating and defrauding the Westpac Bank.

24.      You may consider, based on these facts, that Mr Gunner is not of good character based on Section 501(2) in the light of both Mr Gunner’s past criminal conduct and Mr Gunner’s general conduct.

25.      The legal representative of Mr Gunner submitted on 2 June 1997 (attachment C) that under section 501, it is necessary to consider whether Mr Gunner is currently not of good character or, if once not of good character, has not reformed.  The submission of 2 June 1997 refers to: the positive reports from the prison and his good prospects of rehabilitation, that he will be in his mid thirties by the time he is released from prison and the fact that most criminals mature out of a career of crime by the age of 30; and that the AAT was satisfied that there was a low level of risk of Mr Gunner re-offending.

26.      The evidence submitted relating to Mr Gunner’s performance and behaviour in prison, however, is largely based on observations of Mr Gunner in a controlled environment.  The very short period of permanent residence in Australia (and when not in remand) makes it difficult to make an assessment on the level of possible recidivism.  For the short period of his permanent residence he was involved in criminal activity.”

The minute then addressed the question of the best interests of the child.  It extracted Art 3 of the Convention (which provides that “[i]n all actions concerning children...the best interests of the child shall be a primary consideration”).  The author appears to have accepted that, as submitted by the applicant’s solicitor, the applicant’s son and de facto partner had accompanied him to the United Kingdom.  The minute recorded, without comment, the submissions made by the applicant’s solicitor on the interests of the child and referred to the psychologist’s report.

Under the heading “Other Primary Considerations”, the minute made these observations:

“31.There are other matters in relation to the consideration which also warrant primary consideration.  These include such matters as the seriousness of the crime, the period of time the person has spent in the Australian community and the contribution made to the community, whether the individual has become a full time member of the community by reason of their conduct, the repugnancy of the crime and the likelihood of recidivism.

32.Mr Gunner has spent a little over one year in the community as a permanent resident in Australia.  In that time he was committing crimes which were regarded by the trial and appeal judges as serious, warranting a lengthy sentence.  The crimes were committed while awaiting for permanent residence and while on bail.  The judges’ comments on the nature of the crimes are significant.  There does not appear, from the evidence, that Mr Gunner has contributed to the Australian community.  His ties with the community relate almost exclusively to those with his de facto spouse and their child.  The risk of recidivism is difficult to assess.  Prison reports available suggests Mr Gunner’s likelihood of recidivism is low.  There appears no other supporting evidence for this conclusion.”

The minute then referred to the letter from the applicant’s solicitor and noted documents relied on by the applicant to support the submission that he should be permitted to remain in Australia.  The minute continued as follows:

“Legal Appeal

35.      As the decision to deport Mr Gunner was considered by the AAT and the Tribunal decided to overturn the delegate’s decision to deport Mr Gunner, a decision to cancel his visa would be likely to attract an appeal to the Federal Court....While a certificate declaring Mr Gunner to be an excluded person will result in him not being able to appeal to the AAT on the merits of the decision, it does not prohibit Federal Court action.

Summary

36.      Taking into account Mr Gunner’s criminal and general conduct, you may decide whether Mr Gunner is or is not of good character.

37.      If on the examination of all the factors on this case you decide that he is not of good character, you may decide whether or not you wish to cancel Mr Gunner’s visa taking into account all the factors relating to Mr Gunner.  According to Article 3 of the International Convention on the Rights of the Child, the best interests of the child is to be ‘a primary consideration’.  This primary consideration is to be given to the child along with other primary considerations.

38.      If you decide to cancel the visa of Mr Gunner, it is possible to consider including a certificate declaring Mr Gunner to be an excluded person if you decide that the seriousness of the circumstances which caused you to cancel the visa are such that it is in the national interest that Mr Gunner’s visa be cancelled.  A certificate is attached should you so decide.  If you decide to issue a certificate of exclusion, arrangements will be made for a notice to the parliament to be prepared.

39. An appeal against the decision by the AAT was lodged with the Federal Court. It is recommended that the appeal be withdrawn in view of your consideration under the provisions of Section 501 of the Act.”

The minute listed the attachments as follows:

“A      submission on the deportation of Mr Gunner

Bletter to Mr Gunner of 24 May 1997 informing Mr Gunner that you intend to consider the cancelling his visa on character grounds

C response of 2 June by Mr Gunner’s legal representative

Dsections 501 and 502 of the Migration Act

ELegal opinion on National Interest

FExtracts from page 6 of the AAT hearing of 5 November and page 14 of the AAT decision

GReferences from the prison officers

HDecision of trial judge Johnston

IInterview report with Mr Gunner in connection with deportation consideration

Jletter from Ms Ashby of 6 February 1996

KAAT decision not to deport Mr Gunner”.

Of these eleven attachments, seven formed part of the Departmental file or otherwise were before the AAT or, alternatively, were derived from the transcript of the AAT proceedings or from the AAT decision itself (attachments A,F,G,H,I,J,K).  The remaining four attachments comprised the correspondence between the Minister and the applicant’s solicitors, extracts from the legislation and a legal opinion to the Minister (in respect of which client legal privilege was claimed before me) (attachments B,C,D and E).

On 10 June 1997, the Minister signed a document as follows:

“Minister’s Action

1.        Mr Gunner is not of good character under section 501;

2.        Mr Gunner’s permanent visa is cancelled under section 501;

3.The reason for cancelling Mr Gunner’s visa is in the national interest; and

4.Certificate declaring Mr Gunner an excluded person is signed

5.The appeal to the Federal Court against the decision of the AAT is to be withdrawn.”

This was accompanied by a certificate declaring the applicant to be an excluded person in accordance with s 502(1) of the Migration Act.

THE SUBMISSIONS
Mr Williams made three principal submissions on behalf of the applicant:

• First, as a matter of construction of the Migration Act, the Minister’s general power to cancel a visa, conferred by s 501, does not apply to a person who satisfies the more specific criteria in s 201 (relating to criminal convictions) and who, by reason of satisfying those criteria is or was liable to the exercise of the Minister’s power to order deportation of a non-citizen, conferred by s 200. Mr Williams refined this contention in argument. As he ultimately formulated the submission, he contended that the general power to cancel a visa conferred by s 501 does not apply to a visa holder where the Minister is or could be satisfied that that person is not of good character, solely by reason of a criminal conviction in Australia which has resulted in imprisonment for a period of not less than one year.

• Secondly, Mr Williams submitted that, even if the power conferred by s 501 is capable of applying to a person in respect of which s 200 applies (by reason of that person satisfying the criteria in s 201), s 501 does not authorise a determination that the person’s visa be cancelled on the basis of the same facts and circumstances already considered in the determination made under s 200. Alternatively, he submitted that the Minister’s power to make a declaration under s 502 (thereby preventing the excluded person from seeking review in the AAT of the decisions to cancel that person’s visa) could not be exercised where the declaration was based on the same facts and circumstances as had been taken into account by the AAT in deciding that the person should not be deported under s 200.

• Thirdly, even if the Minister’s power under s 501 can be exercised in relation to a person who had received a favourable determination on the merits under s 200, in the circumstances of the present case the Minister had made the determination for a collateral and improper purpose, namely, to overturn the AAT’s decision to set aside a deportation order made against the applicant. This constituted an exercise of a power for a purpose other than a purpose for which the power is conferred, within the meaning of s 476(3)(a) of the Migration Act. The decision was therefore liable to be set aside under s 476(1)(d) as an improper exercise of the power conferred by s 501.

Mr Roberts, on behalf of the Minister, disputed each of those contentions.  Mr Roberts’ contentions in respect of the first two arguments appear sufficiently from the reasoning later in this judgment.  I have not found it necessary to deal with Mr Williams’ third argument.

THE FIRST ARGUMENT
The Principle of Construction
In support of the first argument, Mr Williams relied on what has been described as a particular application of the principle of construction usually referred to as generalia specialibus non derogant: D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed 1996), at 111.  The principle of construction was summarised by Deane J in Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Livestock Corporation (1980) 44 FLR 455 (FCA/Deane J), at 468-469, as follows:

“As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions.  ‘The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative...’ (per Romilly MR in Pretty v Solly (1859) 26 Beav 606 at 610; 54 ER 1032 at 1034). Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter. A more fundamental example of such repugnancy is where the particular provisions prescribe or encourage conduct which the general provisions would render prima facie, though not irremediably, unlawful or where the particular provisions assume to be lawful conduct which the general provisions would render prima facie unlawful. I have already indicated my view that the latter, more fundamental, example of repugnancy is present in the instant matter, I consider that the former example of repugnancy is likewise present.”

See also Downey v Trans Waste Pty Ltd (1991) 172 CLR 167, at 171-172, per Mason CJ, Deane, Gaudron and McHugh JJ; Saraswati v The Queen (1991) 172 CLR 1, at 17, per Gaudron J; at 23-24 per McHugh J.

The particular application of this principle, to which Professor Pearce and Mr Geddes referred, was expressed by Mason J in Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, at 678:

“It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power.  In Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 Gavan Duffy CJ and Dixon J said: ‘...When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power’.”

It must, however, be borne in mind that the rules of construction, including the particular application of the maxim generalia specialibus non derogant must at all times be applied to give effect to the intention of the legislature: Grofam Pty Ltd v ANZ Banking Group (1993) 45 FCR 445 (FCA/FC), at 451.

The Applicant’s Contentions
Mr Williams submitted that the power of deportation conferred by s 200 of the Migration Act is specific in nature and is subject to important restrictions. He correctly pointed out that s 201, which attracts the operation of s 200, applies only where a non-citizen

• has been convicted in Australia of an offence;

• had been in Australia as a permanent resident for a period or periods of less than ten years at the time the offence was committed; and

• was sentenced to a term of imprisonment of not less than one year.

This was said to contrast with s 501, which is more general in character, and which is not subject to the same restrictions. In this respect, the following points should be noted about the operation of s 501:

• The section confers a power to refuse to grant a visa or to cancel a visa.  It does not confer a power to order deportation, although the consequence of cancellation of a visa ordinarily will be removal of the former visa holder from Australia.

• Section 501(2) requires the decision-maker to inquire into whether a person is not of good character “having regard to” the person’s “past criminal conduct” or “general conduct”. In undertaking the inquiry, the decision-maker is not confined exclusively to the person’s past criminal conduct or general conduct, although those criteria can be treated as “fundamental considerations”: Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 (FCA/FC), at 141-143.

• The reference to “past criminal conduct” in s 501(2)(a)(i) is not confined to conduct which has resulted in a criminal conviction (whether in Australia or overseas): Minister v Baker, at 141. This contrasts with s 201, which is satisfied only if the person concerned has convictions in Australia.

• Section 501, unlike s 201, is not limited to permanent residents of Australia. (Note, however, that the power of deportation conferred by s 200 can be exercised in relation to persons who are not permanent residents, for example persons convicted of one of the offences enumerated in s 203.)

Mr Williams argued that the case for the application of the principle, generalia specialibus non derogant, was supported by the fact that ss 200 and 501 were introduced into the legislation at different times. The former is the descendant of a provision included in Commonwealth legislation enacted shortly after Federation. As appears from the joint judgment of Burchett and Lee JJ in Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 (FCA/FC), at 371-372, the Immigration Restriction Act 1901 (Cth) s 3(e), included among the class of prohibited immigrants:

“Any person who has within three years been convicted of an offence, not being a mere political offence, and has been sentenced to imprisonment for one year or longer therefor, and has not received a pardon.”

Of course, Commonwealth legislation governing migration has been modified or amended over the years, but conviction and imprisonment for a serious offence has always been a ground for deportation or removal of non-citizens from Australia, although the mechanisms for securing the deportation or removal of non-citizens convicted of serious offences has varied from time to time.

By contrast, as I have already noted, ss 500(1), 501, 502 and 503 were introduced into the Migration Act by the 1992 Amendment Act, although the current section numbers came about by reason of the renumbering of the Migration Act effected by the Migration Legislation Amendment Act 1994 (Cth), s 83 (commencing on 1 September 1994). At the time most of the 1992 Act came into force (24 December 1992), the present ss 200-206 of the Migration Act were substantially in their current form.  The Minister’s second reading speech accompanying the 1992 Bill stated that the decision-making regime for the exclusion of persons of bad character or who are otherwise regarded as unsuitable to remain in Australia, had been reviewed following the decision of the Full Court in Hand v Hell’s Angels Motorcycle Club Inc (1991) 25 ALD 667. The Minister then made the following observations:

“The Bill provides the Minister or his or her delegate, with the power to refuse or cancel a visa or entry permit where a person fails to meet the character criteria set out in the Act. There is also a power for the Minister, acting personally, to refuse or cancel visas or entry permits where, on the basis of information available to the Minister, he or she is satisfied that a person, if permitted to enter or remain in Australia would be likely to engage in criminal conduct or would represent a danger to the Australian community or a segment of it, would engage in vilification of a segment of the community or would foment discord in the community.

The power is intended to be exercised in a manner consistent with well accepted Australian values, such that it is aimed at those persons who may regard entry to this country as a means to attack those values.  The new provisions would not be used to breached established standards of industrial democracy, for example.  The provisions will also not impact on the continued implementation of current Government policy in relation to criminal deportation.  That policy has been effective since May 1983.

...

All decisions taken under the powers provided for in this legislation will be subject to merits review by the Administrative Appeals Tribunal.  Specifically, the decisions which will be subject to such review will be criminal deportations, decisions to refuse a visa or entry permit or decisions to cancel a visa or entry permit on the grounds of bad character, or where a person may engage in criminal conduct, vilify a segment of the community, foment discord in the community or represent a danger to the community.

...

Review by the Administrative Appeals Tribunal of the exercise of the new powers provided by this Bill will not be permitted, however, where the Minister, acting personally, decides that it is in the national interest that such persons should not be permitted to enter or remain in Australia.  In such cases the Minister will be required to include, as part of the decision, a certificate stating that, in the national interest, the person is refused entry to or permission to remain in the country.”

Cth Parl Debates, HR, 17 December 1992, at 4121-4122.

Reasoning
While the arguments advanced by Mr Williams have some force, in my view s 501 is capable of applying to a person who the Minister is satisfied is not of good character, even if that finding is based primarily on a conviction or convictions in Australia, resulting in the person’s imprisonment for a period of not less than a year. In my opinion, there is no “repugnancy” between s 201 and s 501, in the relevant sense, such as to exclude from s 501 a person who is determined not to be of good character by reason of a conviction and term of imprisonment. It is, of course, true that, as Deane J pointed out in Refrigerated Express, repugnancy can be present in cases where there is no direct contradiction between the relevant provisions.  But it must appear that the special provisions were “intended exhaustively to govern their particular subject matter”.  Mason J’s comments in Leon Fink, citing observations made in Anthony Hordern, show that this test may be satisfied if the particular provision prescribes “the mode by which [the power] shall be exercised and the conditions and restrictions which must be observed”, while a general provision in the same instrument can be relied on for the same power.

Section 201, read in combination with s 200, confers a discretionary power to order the deportation of a non-citizen who has committed an offence and who, at the time of the offence had been in Australia as a permanent resident for less than ten years. The power may be invoked only where the non-citizen has been convicted in Australia of the offence and has been sentenced to imprisonment for a period of not less than a year. But if these conditions are met, the discretionary power conferred by s 200 is in general terms and is not subject to any express procedural limitations. The discretionary power to order deportation must of course be exercised bona fide and not with a view to achieving ends or objects outside the purpose for which the discretion is conferred: Swan Hill Corporation v Bradbury (1937) 56 CLR 746, at 757-758, per Dixon J; FAI Insurance Ltd v Winneke (1982) 151 CLR 342, at 368, per Mason J. Nonetheless, it remains a discretionary power.

Section 501 also confers a discretionary power on the Minister, inter alia, to cancel a visa. As I have explained, a person whose visa has been cancelled ordinarily will be removed from Australia. The power is enlivened in the circumstances specified in s 501(1)(b) and (2). Relevantly, the power is available if the Minister, having regard to the visa holder’s “past criminal conduct” and/or “general conduct” is satisfied that the visa holder is not of good character. The “criminal conduct”, as Minister v Baker holds, is not confined to conduct in respect of which the person has been convicted in Australia.  The expression clearly includes conduct in respect of which a visa holder has been convicted in Australia and sentenced to a term of imprisonment of at least one year.  Mr Williams conceded that it was open to the Minister to take into account such conduct, when considering whether the visa holder is a person not of good character.  Mr Williams’ concession was qualified, because he submitted that a finding that a person is not of good character cannot be based solely on the person’s conviction and imprisonment. Nonetheless, it cannot be said that s 201 is concerned with a distinct subject matter from that addressed in s 501(2)(a), even though past criminal conduct is not determinative of the absence of good character. Both provisions are concerned with criminal conduct.

Nor, in my opinion, can it be said that s 501 is a “general power, not subject to limitations and qualifications”, in the sense used by Mason J in Leon Fink. Section 501 confers a discretionary power on the Minister to cancel a visa if he or she is satisfied of certain matters, relevantly, that a visa holder is not of good character. Sections 200 and 201 confer a discretionary power on the Minister to deport a non-citizen, relevantly, if the non-citizen has been convicted of an offence in Australia and sentenced to imprisonment for at least one year. It is true that the criterion in s 501(2)(a) which enlivens the power of cancellation of a visa in s 501(1) is framed more widely than the criterion in s 201, which enlivens the power of deportation in s 200. Yet in each case the power arises only if statutory conditions are satisfied. In each case the statutory conditions refer specifically either to a criminal conviction or criminal conduct.

Moreover, there is nothing to indicate that the power to cancel a visa conferred by s 501(1), in respect of a person found to be of bad character, is unavailable in relation to those who are subject to ss 200 and 201, namely, permanent residents who have been in Australia for less than ten years. The power in s 501 applies in a variety of circumstances, including those specified in s 501(1)(b) (for example, where the visa holder is likely to engage in criminal conduct in Australia). It would run counter to the objectives pursued by s 501, including promoting the safety of the Australian community, if the power to cancel a visa, which is expressed to apply to a “person”, were to be subject to an implied restriction of this kind. Mr Williams did not suggest otherwise.

The difficulty confronting the contention that s 501 cannot apply to the subject matter of s 201 is, in my opinion, illustrated by the way in which Mr Williams formulated his submission. It will be recalled that his submission, as ultimately framed, was that the general power conferred by s 501 does not apply to a visa holder, where the Minister is or would be satisfied that that person is not of good character, solely because of a criminal conviction in Australia which has resulted in imprisonment for a period of not less than a year.  It is a little difficult to see how the Minister could make a finding that a person is not of good character solely on the basis of such a conviction. It is true that “past criminal conduct” can be treated as a “fundamental consideration” and that the conduct might be confined to conduct in respect of which a person has been convicted in Australia and sentenced to imprisonment. But the inquiry required by s 501(2)(a) is whether the person is not of good character, having regard not only to past criminal conduct, but to general conduct: see Minister v Baker, at 142. Furthermore, in undertaking this inquiry, the Minister is bound to consider material, other than any convictions, which bears materially (whether adversely or favourably) on the character of the visa holder. It would be a rare case in which the Minister can decide the question of character solely by reference to a person’s conviction and imprisonment. Even in the present case, for example, the applicant’s submission to the Minister pointed to a number of considerations, such as positive reports from prison officers and good prospects for rehabilitation, which supported his claim to be a person of good character at the time the Minister was considering the matter. The Minister did not accept the applicant’s submission, but it is difficult to say that the finding that the applicant was not of good character was based solely on the applicant’s conviction and imprisonment.  It was also based, at least in part, on the circumstances in which the conduct resulting in a conviction took place and an assessment of the applicant’s post-conviction conduct.

It is perhaps of little assistance in the present case to compare decisions on other legislation,  since the question must ultimately turn on the proper construction of the particular enactment.  However, the cases in which the principle generalia specialibus non derogant has been applied tend to involve legislation taking a different form from the provisions of the Migration Act.  For example, in Anthony Hordern the question was whether a general power conferred by the Commonwealth Conciliation and Arbitration Act 1904 (Cth) on the Commonwealth Court of Conciliation and Arbitration to hear and determine industrial disputes authorised the Court to make an order requiring employers to give preference to unionists when employing female operatives. The order made in the particular case did not specify the manner in which a preference was to be given. The majority Court (Gavan Duffy CJ, Dixon and McTiernan JJ; Starke and Evatt JJ dissenting) held that the general power was limited by the specific power conferred by s 40 of the Act, which permitted the Court to make an order directing that preference should be given to unionists, in such manner as was specified in the order “other things being equal”. Similarly, in Downey v Trans Waste, four members of the High Court held that s 34(5),(6) and (7) of the Industrial Relations Act 1979 (Vic) exhaustively defined the primary jurisdiction of a Conciliation and Arbitration Board to grant relief to an employee against dismissal on the ground that it was or would be harsh, unjust or unreasonable.  The general jurisdiction of the Board, to make an award determining all matters relating to industrial disputes therefore had to be read as not extending to relief in respect of unfair dismissal.  In Grofam v ANZ a Full Court of this Court considered that s 6(1)(n) of the Director of Public Prosecutions Act 1983 (Cth), which permitted the Director of Public Prosecutions (“DPP”) to do anything incidental to the performance of other specified functions, was “on its face” repugnant to s 9(11), which permitted the DPP to act as counsel or solicitor in limited circumstances. The Court, although not finally resolving the issue, suggested that the general power in s 6(1)(n) might not authorise the DPP to provide legal advice outside the specific circumstances identified in s 9(11) of the Act. In each of these cases, the general power relied on as a source of authority for the particular order or conduct was more general in scope than that conferred by s 501 of the Migration Act, while the specific power said to be repugnant to the general power could be characterised as dealing exclusively with a particular subject matter. I do not think that ss 200 and 201 on the one hand, and s 501, on the other, can be characterised in the same way.

Two other arguments were put forward by Mr Williams in support of the contention that ss 200 and 201 of the Migration Act limited the scope of s 501. First, he contended that s 501(3) shows that the power to cancel a visa was not intended to be additional to power to deport a non-citizen convicted of criminal offences. According to Mr Williams, this follows from the fact that s 501(3) specifically states that the power under the section to cancel a visa is in addition to any other power under the Act “as in force from time to time” to cancel a visa that has been granted to a person. The absence of any reference as to the power to deport a non-citizen was said to indicate a statutory intent that the power to cancel a visa was not to apply in circumstances where the deportation power could be invoked.

In my view, this submission attempts to derive an unwarranted negative inference from the positive terms of s 501(3). For the reasons I have given, s 501 operates in circumstances where the power to deport, conferred by s 200, also might be invoked - that is, the Minister might make a finding that a person is not of good character in relation to a non-citizen who has been convicted in Australia of an offence and sentenced to a term of imprisonment of at least one year. Section 501(3) addresses only the relationship between the power in s 501 and other powers conferred by the Act to cancel visas. It does not affect the relationship between s 501 and the deportation power.

Mr Williams suggested that it is not easy to see the point of s 501(3), given that s 118 already provides that the powers to cancel a visa under various provisions of the Act (including s 501) are not limited or otherwise affected by each other. However, s 501(3) goes further than s 118, since it expresses an intention that the power to cancel a visa conferred by s 501 is in addition to “any other power under this Act, as in force from time to time” to cancel a visa. Moreover, s 501(3) also applies to the power to refuse to grant a visa. I do not think that the presence of s 118 in the Migration Act justifies reading s 501(3) in the manner suggested by Mr Williams.

Secondly, Mr Williams relied on observations made by the Court in Minister for Immigration and Ethnic Affairs v Keenan (1993) 47 FCR 244 (FCA/FC). Under the Migration Act, as it stood at the relevant time, s 55 conferred a power to deport a non-citizen in terms substantially the same as the power now conferred by s 200, when read with s 201. Section 60(1) provided as follows:

“The Minister may, after considering the prescribed matters and no other matters, order the deportation of a person who is an illegal entrant under any provision of this Act.”

The Migration Regulations 1989 (Cth) prescribed a series of specific matters for the purposes of s 60(1). These matters did not include any reference to the illegal entrant’s criminal record or conduct. The Administrative Appeals Tribunal (“AAT”) was empowered to review criminal deportation decisions, but “[b]ecause the ambit of the consideration is so narrow” no review by the AAT was provided in respect of a decision to deport an illegal entrant under s 60(1) (see at 246).

The Court noted that officers of the Department had considered that there was an unresolved conflict between ss 55 and 60.  In a passage relied on by Mr Williams, their Honours said this (at 246):

“It is surprising, therefore, that, in the present case, officers of the Department of Immigration and Ethnic Affairs (the Department) considered that there was an unresolved conflict between ss 55 and 60.  There is no such conflict.  If a person is to be deported simply because the person is an illegal entrant, the decision to deport may be taken under s 60.  If, however, the criminal conviction is a material matter to be considered, the decision should be taken under s 55.”

The nature of the relationship between ss 55 and 60 considered in Keenan is quite different from that between ss 200 and 201 (on the one hand) and s 501 (on the other). Not only did ss 55 and 60 “concern distinctly different subject matters” (at 245), but it was impermissible for a decision-maker, when considering making a deportation order against an illegal entrant, to take into account that the illegal entrant had been convicted of criminal offences (at 250). This contrasts with the overlapping scope of the powers conferred by ss 200 and 201 and s 501. In my view, this difference distinguishes the present case from Keenan.

THE SECOND ARGUMENT
The Issue
The applicant’s second argument rests on a factual foundation, namely, that the Minister’s decision, made on 10 June 1997, to cancel the applicant’s permanent visa under s 501(1) of the Migration Act and to declare him to be an excluded person under s 502 of the Migration Act, was based on the same material as was before the AAT when it made its decision on 4 April 1997 to direct that the applicant not be deported.

Mr Williams argued that the intention of the Migration Act, read as a whole, is that the Minister should not be able to exercise the powers conferred by ss 501 and 502, to cancel a visa on the ground of lack of good character and to declare the visa holder to be an excluded person, on the basis of the same facts and circumstances already considered by the AAT when deciding not to exercise the power conferred by ss 200 and 201 to deport a non-citizen who has been convicted of criminal offences in Australia.

In my opinion, the evidence warrants a finding that the Minister’s decisions under ss 501 and 502 of the Migration Act were based on the same material as was before the AAT. Indeed. I did not understand Mr Roberts to dispute this. With the exception of the submissions put forward on the applicant’s behalf on 2 June 1996, in response to the Minister’s invitation, the Minister and those advising him had no more information than was before the AAT when it decided to set aside the deportation order made by the Minister’s delegate. There was nothing in the minutes prepared for the Minister which suggested that any other material was relevant, nor that anything had occurred since the date of the AAT’s decision to warrant reconsideration of the applicant’s case. The submissions prepared on the applicant’s behalf, although framed by reference to ss 501 and 502 (as was to be expected) raised no new factual material, except to correct a mistake concerning whether the applicant’s de facto partner and child accompanied him to the United Kingdom in April 1992.

The minute to the Minister advised that the applicant’s past criminal conduct and general conduct was such that the Minister could find that he was not of good character.  This advice was based on precisely the criminal history considered by the AAT, together with a brief analysis rejecting the applicant’s contention that his performance and behaviour in prison and the AAT’s finding that the risk of him reoffending was low, showed that the applicant had reformed.  The minute identified the interests of the child as a primary consideration for the Minister to take into account in determining whether the applicant’s visa should be cancelled.  The minute also referred to “other primary considerations”, including the seriousness of the applicant’s crimes, the contribution made by him to the Australian community, his ties with the community, the repugnancy of the crimes he committed and the likelihood of recidivism.  All of these matters were considered by the AAT when it concluded that the applicant should not be deported from Australia.

Reasoning
The starting point in assessing the applicant’s argument on this issue is that, from its inception, the Minister has had jurisdiction to review a decision under the Migration Act to deport a non-citizen who has been convicted of an offence in Australia.  At the outset, as I have already noted, the AAT’s power was limited to making recommendations to the Minister, and thus did not include power to direct that a person not be deported.  That, however, changed in December 1992 with the enactment of the 1992 Amendment Act, the very enactment which, in substance, introduced the provisions now designated as ss 501-503 of the Migration Act.  The 1992 Amendment Act did not merely continue the well-established legislative policy of providing for AAT review of a criminal deportation order, but empowered the AAT to substitute its own decision for that of the Minister. It is that regime which is now embodied in s 500 of the Migration Act.

Nonetheless, the Act clearly contemplates that, in certain circumstances, a person may be deported or subject to the cancellation of a visa without being entitled to seek review of the decision by the AAT. The effect of s 502 of the Migration Act is that the Minister, acting personally, may make a decision under either s 200 (based on the circumstances specified in s 201) or s 501 and may also make a declaration that renders the decision immune from review by the AAT. As has been seen, s 502 clearly recognises the seriousness of such a step, by incorporating three very important safeguards:

• the decision must be made by the Minister personally;

• the Minister must decide that, because of the seriousness of the circumstances giving rise to the making of the decision, it is in the national interest that the person be declared to be an excluded person; and

• the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within fifteen sitting days after the day on which the decision was made.

I acknowledge that a number of considerations suggest that ss 501 and 502 are framed broadly enough to authorise the Minister, acting personally, to cancel a visa and to declare that the former visa holder is an excluded person, notwithstanding that the AAT has determined, on the same facts and circumstances considered by the Minister, that the person should not be deported under s 200 by reason of criminal convictions in Australia.

First, s 501 does not expressly exclude from the scope of the Minister’s power to cancel a person’s visa a case where the Minister acts on the same facts and circumstances as were before the AAT when it set aside a decision to deport that person. The language of the section is wide enough to be capable of embracing such a case. Similarly, the language of s 502 is broad enough to be construed to permit the Minister to make a declaration that a person is an excluded person, notwithstanding that he or she has no information other than that relied on by the AAT.

Secondly, the Minister’s power to order deportation of a non-citizen convicted of a criminal offence in Australia has its source in s 200 of the Migration Act, while the source of the Minister’s power to cancel a visa is s 501. Moreover, the circumstances that enliven the power in s 200 are different from those that enliven the power in s 501. The power conferred by s 200, read together with s 201, is to deport a non-citizen by reason of a criminal conviction, while the power under s 501 (relevantly) is to cancel the visa of a person considered not to be of good character. As I have explained, there is some overlap between the criteria specified in s 201 and those specified in s 501. Even so, the criteria enlivening each power are different, reflected by the fact that the Guidelines relied on by the AAT in the present case apply only to the exercise of the criminal deportation power and not to cancellation of a visa. This might suggest that the Minister’s power under s 501 (and the consequential power to make a declaration under s 502) can be exercised independently of the fate of any prior attempt to invoke the criminal deportation power conferred by ss 200 and 201.

Thirdly, it seems clear enough that there are some circumstances in which the power conferred by s 501 (whether or not exercised in conjunction with the power to make a declaration under s 502) can be exercised in relation to a person against whom a deportation order has been made, but has been subsequently set aside by the AAT. Mr Williams, as I understood him, did not dispute that the Minister could cancel a person’s visa under s 501 and declare that person to be an excluded person under s 502, even though the AAT had previously set aside a deportation order, provided that the Minister did not act on the basis of the same facts and circumstances as were before the AAT. It might be thought strange that, while the Minister can exercise the powers conferred by ss 501 and 502 where the circumstances have changed since the AAT’s decision, the Minister cannot do so where the he or she takes a different view of the relevant facts from that adopted by the AAT.

Fourthly, it would seem that the Minister, acting personally, can cancel a visa under s 501 and declare the person to be an excluded person under s 502, thereby ensuring that the person never has the opportunity for review by the AAT. If what I have said earlier in this judgment is correct, there is no impediment to the Minister exercising the powers under ss 501 and 502 of the Migration Act in relation to a visa holder who has been convicted of criminal offences in Australia but in respect of whom no action has been taken under s 200. If it is open to the Minister, in effect, to bypass the AAT in this manner, why should the Minister not be able to reach a different conclusion from the AAT, where it has set aside a deportation order?

Fifthly, ss 501 and 502 are intended to empower the Minister, acting personally, to cancel the visa of a person who is considered to be a danger or threat to the Australian community and to preclude review by the AAT of that decision where it is in the national interest to do so. While the power is of an exceptional character, s 502 builds in specific safeguards designed to prevent a possible abuse of the power. In these circumstances, there is no need to give ss 501 and 502 a narrow interpretation and, in particular, no need to limit their operation in a case where the AAT has previously determined that the person concerned should not be deported by reason of criminal convictions in Australia.

These considerations have force.  However, in my view, there are countervailing considerations which justify acceptance of the applicant’s submission on this issue.

The general principle embodied by the Migration Act is that a person affected by a deportation order made pursuant to ss 200 and 201, or by the cancellation of a visa under the powers conferred by s 501, is entitled to seek review on the merits from the AAT: s 500(1). The AAT’s determination, if it so decides, is binding on the Minister. Indeed, the very legislation conferring powers on the Minister personally, now contained in ss 501 and 502 of the Migration Act, provided for the AAT to overturn a criminal deportation decision made by the Minister or on his behalf.  That Parliament should accept the general principle of binding merits review by the AAT is hardly surprising.  A deportation order or the cancellation of a visa is very likely to have extremely serious, perhaps profound consequences for the person affected.  The right to seek judicial review of a deportation or cancellation decision, although also an extremely important safeguard for the individual, does not extend to a review of the decision on the merits: see Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1996) 185 CLR 259; Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567. The Minister’s second reading speech accompanying the Migration (Offences and Undesirable Persons) Amendment Bill 1992, reinforces the point that the 1992 Amendment Act recognised the significance of the individual’s right to seek review from the AAT of decisions made under ss 200 and 201 and s 501 of the Migration Act and of the AAT’s power to substitute its own decision for that of the Minister.

Section 501(1), by enabling the Minister to make a declaration in the national interest that a person in respect of whom decisions have been under ss 200 or 501 is an excluded person, creates an exception to the general principle. However, scrupulous care should be exercised in construing an exception, or qualification to a safeguard of such acknowledged importance as the right of merits review by the AAT. I have derived the expression “scrupulous care” from a passage in the judgment of Burchett and Lee JJ in Minister for Immigration v Sciascia at 372:

“Persons whose liberties are protected by the common law, who live in our community, are entitled to have laws of the nature of s 20 read with scrupulous care, and in their narrowest, rather than in some wider, sense.  That is because s 20 deprives those caught by it of one of their most precious rights, their right of community.  There is no limit to its retroactive effect upon a person who may have lived here as a lawful entrant for, perhaps, 20 or more years.  The making of a deportation order is the plainest infringement of liberty; the making of it under a retroactive law underlines the common law’s concern.  Both retrospectivity and curtailment of liberty, when found in any statute, are strong pointers towards a construction strictly confining its operation.”

Section 20 in its then form applied inter alia, to a non-citizen who, at the time he or she entered Australia, had been convicted of a crime and sentenced to imprisonment for a term of at least one year.  Their Honours pointed out that s 20 was capable of a harsh operation, since it applied retrospectively to persons lawfully living in Australia, who were liable “to deportation without recourse to any remedy or appeal” (at 371).  See also Potter v Minahan (1908) 7 CLR 277 at 304, per O’Connor J (a case concerned with the Immigration Restriction Act 1901 (Cth)); Re Bolton; Ex parte Beane (1987) 162 CLR 514, at 520, per Mason CJ, Wilson and Dawson JJ (a case concerned with the power to detain and hand over to the authorities of another country an Australian resident who had deserted from the armed forces of that country), both of which are referred to by Burchett and Lee JJ in Sciascia, at 372-373.

The circumstances of the present case are not the same as in Sciascia, but they are unusual. The Minister purported to exercise the powers conferred under ss 501 and 502 very shortly after the AAT handed down its decision setting aside the deportation order made against the applicant. The Minister did not pursue an appeal to this Court against the AAT’s decision and indeed abandoned the appeal on the same day as making the decisions under ss 501 and 502. Instead, the Minister, acting on the basis of the same information as was considered by the AAT, decided to cancel the applicant’s visa and to make a declaration that he was an excluded person. It is true that the Minister acted under a different head of power than did the delegate who made the criminal deportation order against the applicant. It is also true that the AAT based its decision in part on the Guidelines that are intended to be taken into account in making deportation decisions, while the minute to the Minister of 5 June 1997, advising him as to the exercise of the powers conferred by ss 501 and 502, made no reference to the Guidelines. But, as I have previously explained, once the conditions specified in s 501(2)(a) are satisfied (namely, the Minister’s satisfaction that the visa holder is not a person of good character) the Minister acquires a discretionary power under s 501(1) to cancel the person’s visa. That power is very similar, if not identical in scope and in the range of matters to be considered in relation to the power conferred by s 200 to deport a person who has been convicted of an offence in Australia and sentenced to a term of imprisonment of not less than a year. The effect of both a decision to deport a non-citizen under s 200 and a decision to cancel a visa under s 501(1) is, in substance, the same, namely, removal of the person concerned from Australia. Moreover, the close relationship between the two powers is illustrated by the fact that the minute to the Minister of 5 June 1997 specified criteria which, although not identical to those laid down in the Guidelines, are very similar.

The substance of what has happened in the present case is that the Minister reconsidered the decision of the AAT not to deport the applicant and, on the basis of the same material addressed by the AAT, decided to cancel his visa and to declare him to be an excluded person. In my view, it is one thing to read ss 501 and 502 as authorising the Minister, acting personally, to cancel a person’s visa and preclude review of that decision by the AAT, where no previous decision has been made by the AAT or where any such decision has been based on different facts and circumstances. It is quite another to construe the section as authorising the Minister, acting personally, to take the same action on the basis of the same facts and circumstances that caused the AAT to set aside a deportation order against the applicant. In effect, the Minister has decided to overturn a decision of the AAT which had overturned an earlier decision made by the Minister’s delegate. In my view, having regard to the statutory context and to the “scrupulous care” with which ss 501 and 502 should be read, the legislation was not intended to confer on the Minister power to set at nought a determination by the AAT simply because the Minister takes a different view of the material considered by the AAT: cf Lynch v Minister for Human Services and Health (1995) 61 FCR 515 (FCA/FC), at 527-528, per Moore J. Whether the Minister’s view of the merits is or is not reasonable is not the point. It is that clearer language is required before ss 501 and 502 should be read as authorising such a result.

In reaching this conclusion I have not overlooked the objectives of the provisions introduced into the Migration Act in 1992.  These include protecting the Australian community against persons who constitute a danger or threat by reason of past criminal conduct.  But it is necessary to take into account other considerations in construing the relevant provisions, including Parliament’s recognition of the importance of review by the AAT of deportation decisions based on criminal conduct, including the AAT’s power to substitute its own decision in a particular case for that of the Minister.

As I have pointed out, the key circumstance in the present case is that the Minister purported to exercise his power on the basis of the same material that was considered by the AAT. It is not necessary for me to express a view concerning the application of ss 501 and 502 in other circumstances. These include, for example, a case where a delegate of the Minister declines to make a deportation order, but the Minister, acting personally, subsequently decides to cancel that person’s visa (on the ground that he or she is not of good character) and to make an excluded person declaration under s 502. It is sufficient to conclude that, in the circumstances of the present case, the Minister’s actions were outside the scope of ss 501 and 502 and should be set aside.

THE THIRD ARGUMENT
In view of the conclusion I have reached on the applicant’s second argument, it is not necessary for me to express a final view on the applicant’s third argument, namely, that the Minister acted with an ulterior and improper purpose. I observe only that, if (contrary to the conclusion I have reached) the Minister has power to cancel a person’s visa and make a declaration under ss 501 and 502 on the basis of the same facts and circumstances as were before the AAT when it set aside an earlier deportation order against that person, it is not easy to see how the Minister’s exercise of that power was infected by an improper purpose. It would seem to be a necessary consequence of the availability of the power that it could be exercised, in effect, to overturn an earlier decision by the AAT. This would seem to be so, even though the Minister is aware of and intends that the effect of his or her decision is to overturn the AAT’s determination. However, having regard to the conclusions I have reached, I need take this question no further.

CONCLUSION
The Minister’s decision to cancel the applicant’s visa under s 501 of the Migration Act and to declare him to be an excluded person under s 502 should be set aside. It is not appropriate to remit the matter to the Minister since, for the reasons I have explained, he acted outside his statutory powers. The Minister should pay the applicant’s costs.

I certify that this and the preceding thirty-five (35) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:             19 December, 1997

Counsel for the Applicant:	Mr N Williams and Mr J Duncan
Solicitor for the Applicant:	Ray Turner
Counsel for the Respondent:	Mr P Roberts
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 December, 1997
Date of Judgment:	19 December, 1997