Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757
MIGRATION – judicial review – New Zealand citizen – cancellation of visa – cancellation by Minister personally – whether Minister bound to have regard to unavailability of review by Administrative Appeals Tribunal in deciding to determine case personally - failure to pass character test – substantial criminal record – reliance upon protected material – irrelevance to existence of substantial criminal record – whether question of judicial power raised – what constitutes substantial criminal record whether applicant sentenced to two or more terms of imprisonment totalling two years or more – concurrent sentences – effective term ten months – nominal total of sentences twenty five months - whether concurrent terms counted in total for purposes of character test – concurrent terms not counted – counting of concurrent terms constituting jurisdictional error – jurisdiction of court to grant relief - applicant returned to New Zealand – utility of relief – certiorari and prohibition issued JUDGES AND COURTS – single judge decisions – judicial comity – decision of single judge of same or coordinate jurisdiction to be followed unless clearly wrong – authority of and confidence in courts – desirability of referral of important points of difference to Full Court CRIMINAL LAW - sentencing – concurrent sentences – common law principle – statutory presumption – underlying principles
Migration Act 1958 (Cth) s 32(2)(a), s 5, s 501(2), (6), (7), s 503A(2), (3), (6), s 474 Judiciary Act 1903 (Cth) s 39B
Plaintiff S157/2002 v Minister for Immigration, Multicultural and Indigenous Affairs(2003) 195 ALR 24 cited Minister for Immigration and Multicultural Affairs v Bhardwaj(2002) 187 ALR 117 cited R v Hickman; Ex parte Fox and Clinton(1945) 70 CLR 598 cited Minister for Aboriginal Affairs v Peko Wallsend(1986) 162 CLR 24 cited Minister for Immigration and Ethnic Affairs v Sciascia(1991) 31 FCR 364 cited Pearson v Minister for Immigration, Local Government and Ethnic Affairs(1992) 106 FLR 162 cited Ball v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 699 followed Drake v Minister for Immigration and Ethnic Affairs(1979) 24 ALR 577 cited Police Authority for Huddersfield v Watson[1947] 1 KB 842 cited Froom v Butcher[1976] 1 QB 286 cited Zotovic v Dobel Boat Hire Pty Ltd(1985) 62 ACTR 29 cited Takapana Investments Pty Ltd v Teco Information Systems Co Ltd(1998) 82 FCR 25 cited Towney v Minister for Land and Water Conservation for New South Wales(1997) 147 ALR 402 cited Esso Australia Resources Ltd v Commissioner of Taxation (Cth)(1997) 150 ALR 117 cited La Macchia v Minister for Primary Industries and Energy(1992) 110 ALR 201 cited
STEPHEN EDWARD HICKS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W356 OF 2002
FRENCH J 21 JULY 2003 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W356 OF 2002
BETWEEN:
STEPHEN EDWARD HICKS APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757
Case
[2003] FCA 757
Decision Date
CaseChat Overview and Summary
The case of Hicks v Minister for Immigration and Multicultural and Indigenous Affairs involves Stephen Edward Hicks, a New Zealand citizen who has lived in Australia since the age of fourteen. Hicks was detained under the Migration Act 1958 (Cth) and his visa was subsequently cancelled by the Minister for Immigration, Multicultural and Indigenous Affairs. The central issue in this case was whether the Minister made an error in law when determining that Hicks had a substantial criminal record based on the nominal total of concurrent sentences. The court held that the Minister did indeed err in law by considering the nominal total of the sentences instead of the effective term served by Hicks.
The legal issue at the heart of this case was whether the Minister correctly assessed Hicks' criminal record for the purposes of cancelling his visa. This required the court to examine the provisions of the Migration Act and the relevant statutory framework governing the delegation of ministerial powers and the cancellation of visas. The court had to determine whether the Minister's interpretation of the statutory language was correct and if the decision made was in accordance with the law.
The court found that the Minister erred in law by considering the nominal total of the concurrent sentences when determining Hicks' criminal record. The court held that the effective term of imprisonment should have been taken into account instead, which was less than the two-year threshold required for a substantial criminal record. The court quashed the decision to cancel Hicks' visa and prohibited the respondent from acting upon the decision. Furthermore, the court ordered that the respondent pay Hicks' costs of the application. This decision highlights the importance of accurately interpreting statutory language and adhering to legal principles when making administrative decisions under the Migration Act.
Orders
Orders of the court
1. Certiorari issue to quash the respondent’s decision made on 26 November 2002 to cancel the applicant’s visa.
2. The respondent be prohibited from acting upon the said decision.
3. The parties have liberty to apply by written submission within seven days for such further or other relief as may be appropriate.
4. The respondent pay the applicant’s costs of the application.
Background
Background to the litigation
Stephen Edward Hicks is a citizen of New Zealand who arrived in Australia at the age of fourteen in 1986 and has lived in this country since that time. By reason of sentences of imprisonment imposed upon him on 31 January 2001, the Minister for Immigration, Multicultural and Indigenous Affairs cancelled his visa on 26 November 2002. He did so upon the basis that Mr Hicks did not pass the character test defined in s 501 of the Act by reason of the fact that he had ‘a substantial criminal record’ as defined by s 501(7). The basis upon which the Minister decided that Mr Hicks had a substantial criminal record was that he had been sentenced to two or more terms of imprisonment where the total of those terms was two years or more. In fact, the sentences which had been imposed on Mr Hicks on 31 January 2001 amounted to an effective term of ten months as they were imposed concurrently with each other. The nominal total of the concurrent terms was twenty-five months. The principal question in this case is whether the Minister erred in law in having regard to the nominal total of the concurrent sentences and thereby concluding that Mr Hicks had a substantial criminal record. For the reasons which follow in my opinion the Minister erred in law in so concluding and certiorari should issue to quash the cancellation decision.Factual Background Mr Hicks was born in New Zealand on 8 July 1972. He is a citizen of that country. He first entered Australia at age 12 in July 1984 for an eight-day stay. Afterwards he returned to New Zealand. He came back to Australia with his mother and stepfather on 18 December 1986 when he was 14 years old. The family settled in Kambalda in Western Australia. Mr Hicks attended Kambalda Senior High School for a year and completed Year 10. He then undertook a boilermaker’s apprenticeship with Western Mining. He has had a number of short absences from Australia from 9 July 1987 to 30 July 1987, 28 December 1991 to 10 January 1992, 1 September 1993 to 15 September 1993 and 25 February 1994 to 27 February 1994. Until its recent cancellation, Mr Hicks was the holder of a visa class TY444. This class of visa permits an indefinite stay in Australia. Since his arrival in Australia in 1986, Mr Hicks has been convicted of a number of criminal offences. His record of convictions is as follows: The convictions recorded on 22 February 2000 in the Karratha Court of Petty Sessions arose out of an incident which occurred in the early hours of the morning of 8 January 2000 at the Trawlers Restaurant in Karratha. It appears that after having been asked to leave the restaurant Mr Hicks went out into the car park where other persons whom he had telephoned on his mobile phone were arriving. A policeman, Madaffari, approached him and was trying to settle him down. Another policeman, Burke then called for police reinforcements. Mr Hicks rushed towards the building, pushed Burke back into the building and knocked the telephone from his grasp. He then attacked Burke and others. He kneed Madaffari in the groin twice. He punched another police officer, Constable GA Duthie. When a security guard interposed himself between Mr Hicks and Burke, Mr Hicks lent around the guard and hit Burke twice. He grabbed Burke by the throat but Burke broke his hold. His friends whom he had called tried to remove him. However Burke and Senior Constable FB Arthur attempted to put Mr Hicks into a police van. However he struggled violently. He attempted to kick and punch Burke in the groin, lashed out with his feet and connected with Arthur and Duthie and kicked Arthur in the face. Burke sustained an injury to his right eye and Arthur to his lower lip. Duthie had some swelling.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH J
The Court has a jurisdiction to entertain what might broadly be called judicial review applications under s 39B of the Judiciary Act1903 (Cth) and under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’). Those jurisdictions are affected in respect of the defined class of decisions under the Migration Act known as ‘privative clause decisions’. Privative clause decisions are defined in s 474(2) of the Act thus:‘(2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).’The term has the same meaning in the other provisions in the Act in which it appears by virtue of its definition in s 5 which is as follows: ‘privative clause decision has the meaning given by subsection 474(2).’ The original jurisdiction of the Federal Court conferred by s 39B of the Judiciary Act relevant for present purposes is as follows: ‘39B(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a)in which the Commonwealth is seeking an injunction or a declaration; or(b)arising under the Constitution, or involving its interpretation; or(c)arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.’ The Court also has jurisdiction conferred upon it by s 8 of the ADJR Act in the following terms: ‘8(1) The Federal Court has jurisdiction to hear and determine applications made to the Federal Court under this Act.’Applications may be made under s 5 of the Act for review of decisions on the various grounds there set out and, under s 6 of the Act, for review of conduct related to the making of decisions. The class of ‘decision to which this Act applies’ is defined in s 3(1) as: ‘… a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition); (a)under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or(b)by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment; other than: (c)a decision by the Governor General; or(d)a decision included in any of the classes of decisions set out in Schedule 1.’The term ‘enactment’ is defined to include, inter alia, an ‘act’ with exceptions that are immaterial for present purposes. Schedule 1 to the Act excludes from the class of decision to which it applies: ‘(da)a privative clause decision within the meaning of subsection 474(2) of the Migration Act 1958.’
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH J
Section 496 deals with the delegation of ministerial powers under the Act and, relevantly provides: “496(1) The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act. (1A) The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister.…’Section 500 deals with review by the AAT of certain decisions taken under the Act and, relevant to s 501 provides: ‘500(1) Applications may be made to the Administrative Appeals Tribunal for review of:…(b)decisions of a delegate of the Minister under section 501; or…other than decisions to which a certificate under section 502 applies.’There is no provision for Administrative Appeals Tribunal (‘AAT’) review of decisions made by the Minister under s 501 other than by a delegate. Statutory Framework – Judicial review of Migration Act decisions The further amended application does not make entirely clear the source and nature of the jurisdiction which it invokes. The Court has a jurisdiction to entertain what might broadly be called judicial review applications under s 39B of the Judiciary Act1903 (Cth) and under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’). Those jurisdictions are affected in respect of the defined class of decisions under the Migration Act known as ‘privative clause decisions’. Privative clause decisions are defined in s 474(2) of the Act thus:‘(2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).’The term has the same meaning in the other provisions in the Act in which it appears by virtue of its definition in s 5 which is as follows: ‘privative clause decision has the meaning given by subsection 474(2).’ The original jurisdiction of the Federal Court conferred by s 39B of the Judiciary Act relevant for present purposes is as follows: ‘39B(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a)in which the Commonwealth is seeking an injunction or a declaration; or(b)arising under the Constitution, or involving its interpretation; or(c)arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.’ The Court also has jurisdiction conferred upon it by s 8 of the ADJR Act in the following terms: ‘8(1) The Federal Court has jurisdiction to hear and determine applications made to the Federal Court under this Act.’Applications may be made under s 5 of the Act for review of decisions on the various grounds there set out and, under s 6 of the Act, for review of conduct related to the making of decisions. The class of ‘decision to which this Act applies’ is defined in s 3(1) as: ‘… a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition); (a)under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or(b)by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment; other than: (c)a decision by the Governor General; or(d)a decision included in any of the classes of decisions set out in Schedule 1.’The term ‘enactment’ is defined to include, inter alia, an ‘act’ with exceptions that are immaterial for present purposes. Schedule 1 to the Act excludes from the class of decision to which it applies: ‘(da)a privative clause decision within the meaning of subsection 474(2) of the Migration Act 1958.’