Kinikini v Minister for Immigration
[2005] FMCA 205
•4 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KINIKINI v MINISTER FOR IMMIGRATION | [2005] FMCA 205 |
| MIGRATION – Visa – visa cancellation – where applicant granted residency in 1993 – whether power to exclude or remove an alien under s.51 (xix) of the Constitution can be considered a means of punishment for criminal offences – where Minister considered the expectation of the Australian community that non–citizens should obey Australian law while in Australia – whether such consideration amounted to retributive policy. |
| Migration Act 1958 (Cth), s.501 The Constitution |
| Minister for Immigration & Ethnic Affairs v Pochi (1980) 31 ALR 666-cited Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 569 - cited Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151 Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1069 - cited Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 172 Ayan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 196 ALR 332 – cited Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298 – cited Chu Kheng Lim v MILGEA (1992) 178 CLR 1 – cited Koon Wing Lau v Calwell (1949) 80 CLR 533 - cited |
| Applicant: | NACANIELI KINIKINI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1488 of 2003 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 February 2004 |
| Date of Last Submission: | 8 and 10 December 2004 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kennett |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs of this application fixed in the sum of $ 5,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1488 of 2003
| NACANIELI KINIKINI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The applicant seeks judicial review of a decision made by the then Minister for Immigration and Multicultural and Indigenous Affairs on 30th June 2003 to exercise his discretion under subsection 501(2) of the Migration Act 1958 to cancel his Resident Return Visa.
Section 501 of the Act states:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6)
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Background
The applicant is a citizen of Fiji. He was born on 14th November 1980. He first arrived in Australia on 2nd June 1990 with his parents. He has lived in Australia ever since, although he has spent periods of up to a month out of Australia in 1995, 2000 and 2001.
On 23rd January 2002 the Applicant was sentenced to imprisonment for 4 years commencing on 16th July 2001 with a non parole period of
2 years for the indictable offence of robbery whilst armed with a dangerous weapon. He was also given concurrent sentences of
9 months for assault occasioning actual bodily harm, 12 months for possessing a loaded firearm in a public place and 12 months for possessing an unauthorised firearm, a pistol.
The charges all arose from an incident on 15th July 2001 where the Applicant entered a service station at Enfield, New South Wales, armed with a loaded .45 automatic pistol. He grabbed a service station employee by the shirt and pointed the pistol at the man’s neck. He demanded that the man open the till and asked where the safe was. The service station employee handed him the noted from the till and said that he could not gain access to any more money.
As the Applicant left the premises, another man came in. The Applicant struck that man on the head with the pistol, causing a laceration. He then ran away.
The police apprehended the Applicant a short time later. They charged him with various offences and refused him bail. He remained in custody from his arrest on 16th July until he was sentenced in the District Court.
The Applicant pleaded guilty to the charges at Central Local Court on 4th October 2001. The Magistrate committed for sentence to the District Court. Bail was refused.
When sentencing the Applicant in the District Court, his Honour Judge Twigg noted that the Applicant was affected by alcohol at the time of the offence. He was 20 years old at the time, with no prior criminal history. He had pleaded guilty at an early stage, a fact which the Judge took into account by reducing the Applicant’s sentence by 20%.
It is noteworthy that the sentencing Judge took notice of the fact that the Applicant is not an Australian citizen. At page 89 of the Court Book, His Honour is reported as saying:
“The offender is still a Fijian citizen but has permanent residency status in Australia. There is, of course, as a result of this conviction and sentence a real possibility that he will be deported back to Fiji. That is not a matter for me and I make no recommendation, but it is entirely a matter for Federal authorities.”
On 12th December 2002, whilst the Applicant was still a prisoner at the Oberon Correctional Centre, the Department of Immigration and Multicultural and Indigenous Affairs sent him a document entitled “Notice of Intention to Consider Cancelling a Transitional (Permanent) Visa under Subsection 501(2) of the Migration Act 1958.[1]
[1] As counsel for the Applicant noted, the class of visa was incorrectly identified, but no point was taken in the hearing about that matter.
The Applicant completed and returned the questionnaire that came with the letter. His solicitors obtained a short extension of time and then lodged a written submission on his behalf.
On 2nd May 2003 the Department sent a memorandum to the Minister entitled “Issues for Consideration of Possible Visa Cancellation of Resident Return Visa under s.501(2) of the Migration Act 1958.” For convenience, I will refer to this document as the Issues Paper.
On the 30th June 2003 the Minister signed a document that said:
I reasonably suspect that Mr Kinikini does not pass the character test and Mr Kinikini has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.
The Applicant completed his custodial sentence and was placed in the Villawood Immigration Detention Centre.
The applicant’s submission
In his written submission on behalf of the Applicant, Mr Kennett of counsel objected to the tender of a document headed “Statement of Reasons – The Cancellation of Mr Nacanieli Vakalagilagi Kinikini’s Visa pursuant to s.501(2) of the Migration Act 1958.”[2] He stated that the document was not admissible as evidence of the Minister’s reasoning process, relying on Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 at [61]-[67]. He submitted that the only admissible evidence of what the Minister took into account is the material that was placed before him by the Department, namely the Issues paper and its various attachments.
[2] A copy of which appeared at page 100 of the Court Book.
Counsel for the Respondent, Mr Johnson, did not dispute that the statement was inadmissible, although he went on to say that there was an air of unreality and a fatal flaw in the Applicant’s argument when the Applicant was seeking to treat the issues paper as though it were the Minister’s reasons. He went on to submit that it was, at most, an even-handed presentation to the decision-maker, identifying what was placed before him.
The thrust of the Applicant’s submission was that, although it has been held that removal of alien from Australia is not punitive per se, such action does have effects akin to punishment which are relevant to decision-making.[3] I note that counsel did not take any issue with the conclusion that the Applicant did not pass the character test. He had a “substantial criminal record” within the meaning of s.501(7), which meant that he failed the character test by virtue of s.501(6)(a).
[3] Minister for Immigration and Ethnic Affairs v Pochi (1980) ALR 666, per Deane J at 685.
Mr Kennett submitted that the decision of the Minister had resulted in the Applicant being detained for a substantial period in addition to his custodial sentence, and would result in his removal from the country where he has lived for the previous decade. This would mean separation from his mother and his siblings. Mr Kennett submitted that these effects are “punitive” at least in the colloquial sense and are the direct consequence of his criminal conviction.
The submission is that the power to remove an alien is a power given to the Commonwealth by s.51(xix) of the Constitution and may validly be conferred on the Executive. It is not a power, however, that extends to the imposition of punishment for criminal offences. The ascertainment of guilt or innocence and the imposition of punishment are exclusively judicial functions and cannot be conferred on any body other than a court.
Mr Kennett submitted that the provisions of the Migration Act must be read in that light. He referred to the fact that the Issues Paper had treated the following matters as significant:
a)the seriousness of what the Applicant had done;
b)the risk that he would re-offend;
c)the possibility that cancellation of the Applicant’s visa might deter others (which was identified as “an important factor”);
d)the “expectation of the Australian community” that non-citizens “obey Australian laws while in Australia”: and
e)the effects that cancellation would have on the Applicant and members of the Applicant’s family.
Mr Kennett submitted that deterrence, the seriousness of what the person has done, and the expectations of the Australian community that non-citizens would obey the law were all factors that would appear to be imposing a double punishment on persons such as the Applicant. The decision could therefore be described as having been made for the improper purpose of punishing the Applicant for his crimes, or, in the alternative, as having taken irrelevant considerations into account.
Mr Kennett pointed out that a similar argument had been submitted to Raphael FM in Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 569. His Honour had not accepted that argument, holding that the Minister’s decision “was clearly made primarily on the basis of considerations of good order and governance and for the protection of the residents of Australia”.[4]
[4] [2003] FMCA 569 at [23]
The respondent’s submission
For the Respondent Minister, Mr Johnson of counsel submitted that the decision was a privative clause decision entitled to the protection of
s.474 of the Act. He said that there was no jurisdictional error to invalidate the decision.
Mr Johnson characterised the Applicant’s contention as claiming that the decision was taken for the purpose of punishing the Applicant, which would make the decision invalid because punishment is a function of the judiciary and not the Executive, or else improper considerations were taken into account. He submitted that there is no evidence that this is the case. He said that the Issues Paper is inadmissible for the purpose of discerning why the decision-maker decided as he did (see Ayan v MIMIA (2003) 196 ALR 332 at [53]-[57]; Dagli v MIMIA [2003] FCAFC 298 at [61]).
Mr Johnson submitted that cancellation of a visa will usually lead to removal from Australia and the person concerned will generally be subject to mandatory detention. That is the result of the Act itself, and the fact that some of those steps may have an “effect” upon an individual similar to punishment is irrelevant and does not vitiate the action taken. The cancellation of an alien’s visa and removal of the alien from Australia consequent on conviction of an offence is not punishment for the criminal offence (see Chu Kheng Lim v MIMIA (supra)), nor is it punishment for being an alien (Koon Wing Lau v Calwell (1949) 80 CLR 533). It is part of the power of the state to exclude aliens on whatever conditions it chooses. A law authorising detention or removal will not be seen as punitive if it is reasonably capable of being seen as necessary for a non-punitive object
(see Chu Kheng Lim at 28).
The appeal decisions in Djalic v MIMIA and Tuncok v MIMIA
Counsel informed me that the decisions in Tuncok v MIMIA [2003] FCA 1069 and Djalic v MIMIA [2003] FMCA 569 were under appeal, and it would be appropriate to reserve until those decisions were handed down. On 8th December 2004 Mr Johnson advised the Court that both of those decisions had been handed down and sought that they should be brought to my attention. He indicated that he did not wish to make any further submissions, but had no objection if counsel for the Applicant wished to do so.
On 10th December 2004, Mr Kennett for the Respondent made a further written submission. He contended that the reasoning of the Court in Djalic v MIMIA [2004] FCAFC 151 is consistent with the Applicant’s fundamental submission that if cancellation of a visa is undertaken for the purpose of punishing the holder of the visa, it is beyond the power conferred by s. 501 of the Migration Act.
Mr Kennett went to concede that the decisions in Djalic (supra) and also in Tuncok v MIMIA [2004] FCAFC 172 were inconsistent with his earlier arguments. He went on to make the rather optimistic submission that both Djalic and Tuncok were wrongly decided, whilst accepting that they are binding on the Federal Magistrates Court. The decisions, being Full Court decisions, are indeed binding on this Court.
In the decision in Djalic, the Full Court (Tamberlin, Sackville and Stone JJ) upheld the decision of Raphael FM at first instance. Their Honours set out what I consider, with respect, to be a useful list of propositions that can be derived from the authorities:
a)Section 51(xix) of the Constitution empowers Parliament to make a law providing for the deportation of aliens for whatever reason Parliament thinks fit, unless the Constitution otherwise prohibits the making of the law.
b)Under Chapter III of the Constitution, the adjudication and punishment of criminal guilt by reason of an alleged breach of a law of the Commonwealth appertains to the judicial power of the Commonwealth and cannot be entrusted to the Executive. If, therefore, Commonwealth legislation on its proper construction purports to authorise the Executive to impose punishment for criminal conduct, the legislation, to that extent, will infringe Chapter III of the Constitution.
c)Whether legislation conferring power to cancel the visa or order the deportation of a non-citizen is punitive in character is to be determined by construction of the legislation, not be a consideration of the consequences of detention or removal of the individual.
d)Accordingly, the power to cancel a visa or order the deportation of a non-citizen is not to be regarded as punitive in character merely because exercise of the power involves interference with the liberty of the individual or imposes what the individual may see as sanctions consequential on his criminal connections. Neither can detention incidental to deportation of a non-citizen be characterised as punitive merely because it involves deprivation of liberty.
e)Legislation conferring a discretion on the Executive to cancel the visa of a non-citizen or to deport a non-citizen is not characterised as punitive if it can be fairly be said to protect the Australian community. This is so even where the pre-condition that must be satisfied for the exercise of the power is the conviction of the non-citizen for a criminal offence or the imposition of a minimum period of imprisonment.
f)Nonetheless, if in a particular case the decision-maker purports to exercise a statutory power to cancel the visa of a non-citizen or to deport the non-citizen in[5] order to punish the non-citizen and not for protection of the Australian community or some other legitimate objective, the exercise of the power may be ultra vires the statute.[6]
[5] with respect to their Honours, there appears to be a typing error in the transcript, as the word ‘or’ appears in the text when it appears to me that the word should be ’in’.
[6] [2004] FCAFC 151 at [66]
Their Honours went on to say at [72] :
It follows from what we have said that s. 501(2) of the Migration Act, on its proper construction, permits the Minister to take into account, in the exercise of his or her discretion, the effect cancellation of the non-citizen’s visa will have in protecting the Australian community. Similarly, s 501(2)is sufficiently broad to allow the Minister to take into account his or her assessment of the expectations of the Australian community as to whether or not a non-citizen who commits serious offences should be permitted to remain in the country.
Further, the Full Court held that where the Minister takes account of what the Minister assesses to be the expectations of the Australian community in determining that a non-citizen has engaged in behaviour that is unacceptable to the community, this is not imposing punishment for a criminal offence.[7] The Full Court also held that, whatever view one may hold about how far a cancellation decision is likely to have a deterrent effect on other potential offenders who are non-citizens:
The very point of taking account of general deterrence as a factor in making a cancellation decision is to enhance the safety and well-being of the Australian community by discouraging non-citizens from engaging in criminal conduct.[8]
[7] [2004] FCAFC 151 at [74]
[8] [2004] FCAFC 151 at [75]
The Full Court (Moore, Branson and Emmett JJ) in their decision in Tuncok handed down later that same month, followed the decision in Djalic:
The possible consequence of deterring other non-citizens from committing similar offences was not an irrelevant consideration in the exercise of the discretion conferred on the Minister by s.501(2) to decide whether the appellant should be permitted to remain in Australia.[9]
[9] [2004] FCAFC 172 at [44].
Conclusions
In my view, it is appropriate to examine the issues paper, although it cannot be regarded as a statement of the Minister’s reasons, having been written before the Minister made the decision. At best, it is a document used by the Minister in arriving at his reasons to exercise his discretion in the way that he did.
I am not satisfied that the Issues Paper gives any indication that the cancellation decision was activated by any other purpose than the legitimate purpose of protecting the Australian community.
The decisions of the Full Court in Djalic and Tuncok are binding on the Federal Magistrates Court. They are on point, and I intend to follow them.
The Applicant has not made out his case that the decision of the Minister was invalidated by jurisdictional error. For the above reasons, I propose to dismiss the Application.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 2 March 2005
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