Kurukkal and Minister for Immigration and Multicultural and Indig Enous Affairs
[2004] AATA 146
•12 February 2004
CATCHWORDS – MIGRATION
– visa – cancellation - application for order staying cancellation – extent of Tribunal’s power to make an order “securing the effectiveness of the hearing and determination of the application for review” - principles to be applied – order refused.
Migration Act 1958 ss. 476, 477, 482, 500, 501 and 501G
Administrative Appeals Tribunal Act 1975 ss. 15, 41, 43 and 44A
Administrative Decisions (Judicial Review) Act 1977 s. 15
Freedom of Information Act 1982
Secretary, Department of Social Security v Zoric (AAT 12011, 20 May, 1997)
Minister for Immigration and Multicultural and Indigenous Affairs v FVAD [2002] FCAFC 390
Minister for Immigration and Multicultural Affairs v Madafferi (2001) 106 FCR 76
Madafferi and Minister for Immigration and Multicultural Affairs [2000] FCA 1612
Ooi v Minister for Immigration and Multicultural Affairs [2000] FCA 514
Madafferi and Minister for Immigration and Multicultural Affairs [2001] FCA 320
Otter Gold Mines Ltd v Deputy President Forrest [1997] FCA 85
Minister of State for Education and Youth Affairs v Bracken (1985) 6 FCR 197
Broadbent v Civil Aviation Safety Authority [1999] FCA 1871
Hartnett v Migration Agents’ Registration Authority [2003] FCA 998
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Re Commonwealth of Australia and Quirke (1986) 9 ALD 92
Re Bishop and Secretary, Department of Social Security (1989) 18 ALD 661
Re Edwards and Civil Aviation Safety Authority [2003] AATA 594
Crossan and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 216
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Re Damaskos and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 500
DECISION AND REASONS FOR DECISION [2004] AATA 146
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2004/104
GENERAL ADMINISTRATIVE DIVISION )
Re subramaniya sarma punitharaja kurukkal
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 12 February, 2004
Place: Melbourne
Decision:The Tribunal:
1.refuses the applicant’s application for an order under s. 41(2) of the Administrative Appeals Tribunal Act 1975; and
2.give liberty to apply.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 6 February, 2004, the applicant, Mr Subramaniya Sarma Punitharaja Kurukkal, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), dated and given to him on 30 January, 2004. On the same day, Mr Kurukkal also applied for a stay of the operation or implementation of the Minister’s decision. That decision was to cancel his Bridging E Visa that had been issued to him pending the finalisation of his application for a TE Religious Worker (Subclass 428) Visa. It was cancelled on the basis that Mr Kurukkal had not passed the character test set out in s. 501 of the Migration Act 1958 (“the Act”).
At the hearing of the stay, Mr Kurukkal was represented by his solicitor, Mr Thapliyal, and the Minister by his solicitor, Mr Giacco. Regard was had to the documents prepared pursuant to s. 501G of the Act and to Mr Kurukkal’s oral evidence given at the hearing in support of his application.
THE ISSUE
The issue is whether the operation or implementation of the Minister’s decision should be stayed.
BACKGROUND
Although the evidence was addressed only to the issues arising on the stay application, I have had regard to Mr Kurukkal’s oral evidence and the material in the G documents in making certain findings of fact in relation to matters forming the background to the case. As I am aware that there may be other evidence led within the time frames permitted by s. 500 (with particular reference to ss. 500(6H) and (6J)), I make these findings only for the purposes of deciding his application for a stay.
Mr Kurukkal was born in Jaffna in Sri Lanka on 13 January, 1968. His father was a priest of the Hindu religion. From the age of 10 and for the following ten years, he trained as a Hindu priest. He spent each morning from 4.00am reading Sanskrit Scriptures at home and at the temple. If he had to attend school, he interrupted his studies to do so and then resumed his reading of the Scriptures between 5.00 and 6.00pm. He would then accompany his father to the temple to learn the practical aspects of being a priest. If Mr Kurukkal did not have to attend school, he would spend his whole day in these activities under the supervision of senior priests. From 1988 until 1991, Mr Kurukkal attended the Durga Kurukulam Institute in order to qualify as a Kurukkal High Priest. He obtained his qualifications and remained as a priest in the Durga Kurukulam until becoming a priest in Colombo for the Sri Subramaniya Swami Koil. As a priest, Mr Kurukkal offers prayers to the deity, attends the Temple and visits homes of the faithful.
Mr Kurukkal married in 1991 and, in 1993, he and his wife had a daughter who is now 10 years old. He accepted a position as the Chief Priest at the
Melbourne Vinayagar Hindu Temple at The Basin (“the Temple”). His application for a Subclass 428 Religious Worker (Temporary) visa was sponsored by the Melbourne Vinayagar Hindu Sangam (“the Sangam”). Mr Kurukkal arrived in Australia with his wife and elder daughter on 3 September, 1997. His temporary visa was valid until 1 July, 1999.
On 11 March, 1999, the premises of the Temple were damaged by fire as was the priest’s house located at the rear of the Temple. On 20 April, 1999, Mr Kurukkal was interviewed by officers of the Victoria Police regarding the fire. As a result of matters arising out of that interview, Mr Kurukkal was charged with one count of Threat to Kill. He was remanded in custody for 14 days but then released on bail. The charge was later dismissed in the Melbourne Magistrates’ Court on 6 September, 1999. (G documents, pages 64-68)
In the meantime, the President of the Sangam advised the Department of Immigration and Multicultural and Indigenous Affairs (“Department”) in a letter dated 26 April, 1999 that the Sangam was of the opinion that Mr Kurukkal was not a fit and proper person to continue as the Temple’s priest. The community had lost confidence in him and believed that his continued employment as the Temple’s Chief Priest would be detrimental to the well-being of the Temple. (G documents, page 32)
On 1 September, 1999, Mr Kurukkal was arrested and charged with two counts of Criminal Damage by Fire, Conduct Endangering Life and Conduct Endangering Persons. He was remanded in custody and subsequently released on bail on 10 November, 1999. The charges were heard in the County Court of Victoria at Melbourne on 23 November, 2000. He was acquitted of the charge in relation to the Temple and found guilty of the charge in relation to the Priest’s house. He was sentenced to three years’ imprisonment but the sentence was suspended upon his being of good behaviour for three years. In sentencing Mr Kurukkal, Judge O’Shea said that it was clear that Mr Kurukkal had immediately called the Fire Brigade for assistance and that he thought that Mr Kurukkal had not intended to burn the house down. His Honour continued:
“ It is a tragic case because for more than half of your life you have trained conscientiously and effectively to follow the path followed by your father to be a priest of the Hindu religion and obviously did it very well in your own country and then while you were here. The tragic result of what you did follows from the fact that your visa to stay in this country expired and it was extended so that you could be here for your trial. With the trial being over, your visa I am told is now at an end and in those circumstances it seems you have to leave this country.
If you were to be immediately imprisoned, I do not know exactly what would happen to your wife and child if you were imprisoned and while they awaited your release but it would be a period of tragic hardship for them. I do not take the view that you are the sort of person who is likely to commit further offences but on the other hand arson is a terrible crime and apt to be visited by consequences which were not really intended and although the material harm done by what you did is probably not terribly great, its effect upon yourself and your family is going to be terribly great no matter what happens.
I think that a sentence of imprisonment from this court is the only appropriate sentence to pass. Because of the seriousness of the crime it carries a maximum penalty of 15 years’ imprisonment and it is necessary for this court to denounce this crime and it is necessary for a sentence to be passed which is apt to deter others from engaging in a similar crime.
Therefore the sentence of the court will be that you be imprisoned for three years but I will suspend that sentence wholly because it seems to me that you are going to suffer a very severe penalty following from the occurrence itself and the conviction.” (G documents, pages 60-61)
On 12 August, 2002, Mr Kurukkal received an offer of employment as a priest with Durgai Ambal Salthi Peedam at Narre Warren in Victoria. The offer stated that the position was available from January, 2003 for a two year period but reviewable annually thereafter. Prior to his being detained on 30 January, 2004, the temple at Narre Warren had not been completed and Mr Kurukkal was fulfilling duties as a priest only on a part-time basis. He was employed at Validek Enterprises in Clayton South and his net weekly income was $179. His living expenses each week amount to $200 and he supplements his income by providing religious services to members of the Hindu community in Victoria.
Since his detention, Mr Kurukkal’s wife has given birth to a second daughter. She did so on 3 February, 2004 and arrangements were made so that he could attend his wife at the hospital.
LEGISLATIVE FRAMEWORK
The power to stay the decision – s. 41(2) of the AAT Act
The making of an application for review to the Tribunal does not affect the operation of the decision or prevent action being taken under that decision. That is the effect of s. 41(1) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”). The Tribunal is, however, given power to stay or affect the operation or implementation of a decision by s. 41(2) which provides that:
“The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
The power to cancel a visa on character grounds – s. 501 of the Act
Section 501(1) of the Act provides that:
“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.”
The “character test” is set out in s. 501(6), which provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal history (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c)having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)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 in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”
For the purposes of the character test, a person has a substantial criminal record if, among others:
“(a) the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person as been sentenced to a term of imprisonment of 12 months or more;
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.” (s. 501(7))
A “sentence” is defined to include “… any form of determination of the punishment for an offence” and “imprisonment” to include “… any form of punitive detention in a facility or institution” (s. 501(12)).
Sections 501(8), (9) and (10) go on to deal with situations in which a person has been sentenced to periodic detention or ordered to participate in certain programmes or where the conviction has been quashed or the person pardoned. They provide:
“(8) For the purposes of the character test, if a person has been sentenced to periodic detention, the person’s term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.
(9)For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:
(a)a residential drug rehabilitation scheme; or
(b)a residential program for the mentally ill;
the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.
(10)For the purposes of the character test, a sentence imposed on a person is to be disregarded if:
(a)the conviction concerned has been quashed or otherwise nullified; or
(b)the person has been pardoned in relation to the conviction concerned.”
CONSIDERATION
In exercising the power under s. 41(2), Mr Thapliyal submitted that I should have regard to the principles expressed in cases such as Secretary, Department of Social Security v Zoric (AAT 12011, 20 May, 1997, Deputy President Chappell). Those principles would require me to consider any prejudice to Mr Kurukkal if the stay were not granted, hardship to the respondent if it were granted and the prospects of success of the application. Relying on Federal Court authorities relating to the interpretation of the former s. 482(2) in the Act, Mr Giacco submitted that the power under s. 41(2) must be read much more narrowly. It had to be limited to the effectiveness of the Tribunal’s processes to review Mr Kurukkal’s application for review.
In order to consider these submissions and to determine the parameters of the Tribunal’s power under s. 41(2) of the AAT Act, I have considered the Court’s power under s. 482(2) as it was in force until October, 2001 and its powers under s. 44A(2) of the AAT Act and under the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”).
Sections 482(2) and (3) of the Migration Act
Sections 482(2) and (3) provided that “… orders staying, or otherwise affecting the operation or implementation of the judicially-reviewable decision, or part of that decision” (s. 482(3)) could be made if an application for review had been made under ss. 476 or 477 of the Act in relation to such a decision and the orders that could be made were those “that the Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and the determination of the appeal” (s. 482(2)).
As recognised by the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v FVAD [2002] FCAFC 390 (Black CJ, Sundberg and Weinberg JJ), the power has been considered in a number of cases in the Federal Court. Those cases, the Full Court concluded, found:
“That section did not apply to deportation cases, but was applicable to cases under s 501 and it was understood to impose limits upon the breadth of the power to order interlocutory relief. For example, in Minister for Immigration and Multicultural Affairs v Madafferi (2001) 106 FCR 76 a Full Court recognised the power of this Court to intervene on an interlocutory basis in an application for judicial review of a decision of the Minister under s 501A of the Migration Act. However, their Honours considered that s 482 (2) limited the power of the Court to intervene, permitting injunctive relief only for the purpose of securing the effectiveness of the hearing and determination of what the Migration Act called ‘the appeal’.” (paragraph 129)
In Minister for Immigration and Multicultural Affairs v Madafferi (2001) 106 FCR 76, Heerey, Emmett and Conti JJ considered an appeal from an order made by Marshall J in Madafferi and Minister for Immigration and Multicultural Affairs [2000] FCA 1612 restraining the Minister from treating Mr Madafferi as an unlawful non-citizen for the purposes of the Act. Marshall J had adopted the interpretation of s. 482(2) that had been adopted by Madgwick J in Ooi v Minister for Immigration and Multicultural Affairs [2000] FCA 514, especially at [16] and [17]. That interpretation was:
“16 The other aspect debated was whether in circumstances like those of this case an interim order staying the operation of the decision to cancel the visa could be for the purpose, as set out in s 482(2), ‘of securing the effectiveness of the hearing and determination of the appeal’. It is true that there are passages in Halmi [Halmi v Minister for Immigration and Multicultural Affairs [1999] FCA 1438], which, if read alone, could support the view that the ‘effectiveness’ referred to is limited to what might be called due accomplishment of the actual processes of hearing and determination. However, reading Hill J's decision in that case as a whole, it seems to me that that is not what his Honour meant. In any case, such an interpretation is not what I think is meant by s 482(2). The word ‘effectiveness’ can be understood, in this context, to have as its ordinary meaning ‘the capacity to achieve an intended purpose’.. There is no reason to interpret the word more narrowly than that, especially in the context of a grant of power to a superior court and, as the present case shows, in a context where the exercise of the Court's jurisdiction and of the possible power concerned might affect the actual liberty of a long time lawful resident in this country.
17 Applying such a meaning, one of the intended purposes of a hearing and determination of a case such as the present is the ascertainment of the rights and liabilities of the parties. Another is to grant remedies which, so far as is lawful and possible, can put the parties in the position in which they ought to have been, had those rights and liabilities been correctly observed. If Mr Ooi should succeed in impugning the lawful authority of the cancellation decision then a necessary consequence, and a principal consequence sought by him, will be his release from administrative detention. If it should take the Court some time, as might normally be expected, to arrive at a decision, and if the decision should ultimately be in his favour, then to the extent that he remains in custody pending the further hearing of the matter and the period until a decision is reached, one of the purposes of the hearing and determination would to that extent have been frustrated. Hence it may well be that, to secure the, ‘effectiveness of the hearing and determination’, the Court should grant a stay.”
On re-visiting the issue in Madafferi and Minister for Immigration and Multicultural Affairs [2001] FCA 320, Marshall J said of the Full Court’s judgement in Minister for Immigration and Multicultural Affairs v Madafferi:
“13 In my view, the effect of the Full Court judgment, quite contrary to the approach of Madgwick J in Ooi, is to emphasise that securing the effectiveness of the hearing and determination of the application is tied to securing the processes of the hearing and the processes of the determination. Section 482 (2) of the Act is a provision akin to one that enables the Court to act to preserve the subject matter of the litigation during the hearing of a matter and up until it is finally determined.
14 The situation is analogous to that which the High Court had in mind in Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 33 (‘Patrick Stevedores’) where their Honours, Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ said:
‘The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked. The Federal Court had jurisdiction to make interlocutory orders to prevent frustration of its process in the present proceeding.’
15 In my view, further guidance in the interpretation of s 482 (2) of the Act can be obtained from Patrick Stevedores by focusing on the importance of securing the effectiveness of the jurisdiction invoked to prevent the frustration of the Court's processes. For example, it would be consistent with s 482 (2) of the Act for the Court to act to prevent a decision by the Minister which sought the removal of Mr Madafferi from Australia or sought to have him in detention when he might have been required to instruct Mr Hurley.
16 The effectiveness of the determination of the appeal is secured by my unimpeded ability to examine the evidence, the arguments before me, and the matters that counsel referred me to in a way where I could come to a judgment based on intellectual integrity and deliver reasons appropriately. There is nothing else that can secure the effectiveness of the determination of the application, especially given the undertaking of the Minister not to seek to remove Mr Madafferi in the interim. Consequently, it is my view that the Notice of Motion of the applicant of 15 March 2001 be dismissed. I will also order that the applicant pay the respondent's costs of and incidental to the Motion.”
Section 15 of the ADJR Act
The Federal Court has also been given the power to stay the operation or implementation of a decision in a number of statutory provisions. A broadly drafted power to “suspend the operation of a decision” is given by s. 15(1) of the ADJR Act. The Court or a Judge may make such an order on “such conditions (if any) as it or he or she thinks fit” and may, again on such conditions as thought fit, stay all or any of the proceedings under the decision. The principles to be applied in considering whether or not such an order should be made were considered by Merkel J in Otter Gold Mines Ltd v Deputy President Forrest [1997] FCA 85:
“In general it has been accepted that the applicant for a stay should satisfy the court that reasons or circumstances exist which make it just that the court make the order sought. Usually that will require that the applicant demonstrate that it has a point of substance to argue, which if successful, will result in judgment in its favour: see Faingold v. Zammit (1984) 1 FCR 87 at 91-2 and Aboriginal Development Commission v. Ralkon Agricultural Co. Pty. Ltd. (1987) 15 FCR 159 at 162-164; 74 ALR 505.
The matters which an applicant must establish to obtain an order for a stay under s.15 will depend on all of the circumstances of the case. However, where the decision sought to be reviewed involves a matter of practice and procedure or the exercise of a discretion on an interlocutory matter, as is the case in the present matter, the reviewing court will exercise particular caution in interfering with or otherwise reviewing the decision: see Ralkon at 162.
While injustice may not be a precondition for relief, as was said in Adam P. Brown Male Fashions Pty. Ltd. v. Phillip Morris Inc. (1981) 148 CLR 170 at 177 in an analogous situation relating to an appeal from an interlocutory order:
‘the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.’
In my view the authorities to which I have referred result in it being appropriate in the present case to consider whether the applicant has demonstrated that:
* it has a point of substance to argue;
* injustice is likely to flow from the decision sought to be reviewed.
The prospect of a successful challenge to the decision and the injustice said to flow from it are not necessarily separate considerations. The extent to which a point of substance must be clearly demonstrated might vary according to the injustice flowing from the decision: see Ralkon at 164.
Section 44A(2) of the AAT Act
Section 44A(2) of the AAT Act is differently worded from s. 15 of the ADJR Act. It provides that, where an appeal has been instituted from a decision of the Tribunal, such order may be made as the Court or Judge “… considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal”. It was considered by Neaves J in Minister of State for Education and Youth Affairs v Bracken (1985) 6 FCR 197 in the context of an appeal by the Minister of State for Education and Youth Affairs against a decision of the Tribunal reviewing a decision made under the Freedom of Information Act 1982.. His Honour addressed certain jurisdictional questions and whether he had power to make a stay order. The principles upon which he decided the issue of whether he should stay the operation of the decision are apparent from the following passage:
“15. I was satisfied that there was a substantial question to be argued on the hearing of the appeal to this Court and that the balance of convenience required that the status quo be preserved pending the hearing and determination of that appeal. The respondent made no submission to the contrary and I formed the view that I should make an appropriate order if such could be framed and the Court had power to make it.”
Section 44A(2) was also considered by Cooper J in Broadbent v Civil Aviation Safety Authority [1999] FCA 1871. He referred to the power given by s. 44A to stay a decision of the Tribunal “… if the Court is of the view that it is appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal” and continued:
“ The statutory provision mirrors the general power of the Court to grant injunctive relief or relief by way of a stay, so that the subject matter of an appeal is not rendered nugatory before an appeal can be heard. In the present case, the appeal to this Court is and remains always available, notwithstanding the presence or absence of a stay. The absence of a stay merely means that the applicant will not be lawfully entitled to engage in flying activities or commercial flying activities until such time as he either obtains the benefit of a decision which sees the setting aside of the decisions of the Tribunal and the authority, or he obtains by some other means the grant of the relevant licences. In my view, there is nothing in the material which indicates that a basis has been made out for a stay under s 44A (2) of the Act.” (paragraph 6)
Finally, in the context of s. 44A(2), I will refer to the judgement of Cooper J in Hartnett v Migration Agents’ Registration Authority [2003] FCA 998 when he considered whether an order should be made under that section to stay the decision to suspend Mr Hartnett’s registration as a migration agent for a period of one year. Cooper J noted that:
“4 The power to grant a stay under s 44A of the AAT Act is for the purpose of securing the effectiveness of the hearing and the determination of the appeal. See Broadbent v The Civil Aviation Authority (1999) FCA 1871. The applicant submits that any period of suspension will cause him irreparable damage in the conduct of his business in terms of damage to goodwill and loss of income which cannot be compensated if he succeeds on the appeal. He also contends that staff presently employed by him and current clients of his immigration practice are at risk of prejudice if he is unable to practise during the balance of the period of his registration.”
Cooper J also noted that the Migration Registration Agents’ Registration Authority (“MARA”) did not intend to take steps to implement its decision as affirmed by the Tribunal while Mr Hartnett remained registered. Despite its then intention, MARA could change its mind and Mr Hartnett’s position remained vulnerable as a result. Cooper J observed that his commitments did not permit him to determine the appeal on its merits for some time and then said:
“… As the practical impact of the stay sought is only for the intervening period, there is a risk that the appeal will be rendered nugatory in the absence of stay. Additionally, there will be direct damage sustained by the applicant which will remain uncompensated if he succeeds in this appeal.
7 The MARA submits that the appeal is without merit, that the findings of the AAT indicate that the applicant is not a fit and proper person to be registered as a migration agent, and that the conduct in issue amounted to breaches of the relevant Code of Conduct provisions.
8 Against this, it is said by the applicant that there was no evidence to support the adverse findings made against him, and those findings which were made did not, on a proper construction of the Code, amount to a contravention of the specific sections of the Code relied upon by the AAT to support its decision.
9 I do not propose to make any comment in relation to the strength or otherwise of the applicant's prospects on the appeal other than to say that the case is not sufficiently hopeless to refuse a stay on the ground that the appeal must fail.
10 The respondent, the MARA, quite properly refers to the public interest and the need to protect the public from persons who are not fit or competent to practise as migration agents. The matters the subject of the proceedings which led to the suspension relate to one client alone. There is no suggestion on the material that there is, or has been, any difficulty in relation to his dealings with other clients. If the suspension were to be imposed immediately, it has the potential to operate to the serious prejudice of the applicant's existing clients. The fact that the registration will expire on 14 October 2003 requires, in any event, that steps be now taken to secure the interests of those clients in the event that the applicant does not obtain, as may well be the case, a new registration on or before 14 October 2003.”
Section 41(2) of the AAT Act
The Tribunal’s powers have been considered in a number of cases. One of those cases is Re Repatriation Commission and Delkou (1985) 8 ALD 454, in which Deputy President Hall considered the power given by s. 41(2) and a range of cases in which it, or a similar power, had been considered. At pages 457-458, he said:
“(8) The power conferred by s41(2) of the Act is a power to make an order ‘staying or otherwise affecting the operation or implementation of the decision or a part of the decision’ sought to be reviewed. It is a power that enables the Tribunal to preserve the status quo pending the hearing and determination of the application for review where the ‘effectiveness’ of the review may be jeopardized if the decision, in the meantime, is carried into operation. Thus the power may be exercised when it is appropriate to do so to ensure that the application for review, if successful, is not rendered nugatory: cf Polini v Gray (1879) 12 Ch D 438 at 446 per Colton LJ; cf J C Scott Constructions v Mermaid Waters Tavern Pty Ltd [1983] 2 Qd R 243.
(9) The Tribunal commonly grants a stay in respect of deportation orders. Otherwise the effectiveness of the review would almost certainly be jeopardized because the applicant would be unable to attend the hearing and to enjoy the benefits of his application for review, if successful: cf Kioa v West (1984) 6 ALN N21. On occasions, the Tribunal has stayed the operation of decisions cancelling social welfare benefits where, deprived of that support, the applicant faces serious hardship. Notwithstanding the possibility that, if the application for review is unsuccessful, benefits may be paid in the meantime to which the applicant was not entitled and which may be irrecoverable, the Tribunal has recognized that, in a very practical sense, the review may be rendered nugatory unless the applicant is provided with the means of sustenance pending the hearing: cf Re Dart and Director-General of Social Services (1982) 4 ALD 553.
(10) However, the Tribunal has also recognized that the power conferred by s41(2) needs to be construed broadly and that it must be capable of adaptation to the wide variety of situations that arise in its diverse administrative review jurisdictions. Thus in Re Dekanic and Tax Agents' Board of New South Wales (1982) 6 ALD 240 at 241, the President said: `In applying s41, the principles which are adopted in other places for other purposes have no direct relevance. Moreover, the jurisdiction of the Tribunal is wide and diverse and it is not practicable to lay down a principle or a set of specific principles applicable to every type of case in respect of which there may be an application for a stay.'
A stay order may therefore be appropriate to ensure that the hearing takes place at a suitable time after there has been adequate preparation for the hearing by both parties: see RC and Director-General of Social Services (1981) 3 ALD 334 at 341; cf Re Dart at 556.”
The following year, the Honourable JBK Williams, Senior Member, considered the power in Re Commonwealth of Australia and Quirke (1986) 9 ALD 92. Having regard to previous decisions in the Tribunal, he set out the matters to which it was proper to have regard in deciding whether or not to grant a stay. Those matters were summarised in the headnote to the case:
“(a) the likely prospect of recovery by the Commonwealth of compensation paid to the respondent pursuant to the determination in favour of the respondent in the event that the determination was not upheld on review;
(b)the prospect of success of the Commonwealth's application for review of the determination;
(c)the hardship to the respondent that might result if a stay order were made.” (page 92)
These principles have been applied directly in cases such as Re Bishop and Secretary, Department of Social Security ((1989) 18 ALD 661 (Senior Member Purcell) and adapted to suit the particular jurisdictions in cases such as Re Edwards and Civil Aviation Safety Authority [2003] AATA 594 (Senior Member Beddoe).
More recently, Deputy President Handley considered s. 41(2) in the context of an application for review of a decision to cancel a visa under s. 501 of the Act. He did so in Crossan and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 216 and noted:
“… what Marshall J said in Madafferi (supra), that this ‘is tied to securing the processes of the hearing and the processes of the determination …” (paragraph 27)
and applied this test in concluding that “… it is not necessary to issue a stay order to secure the effectiveness of the hearing and determination of the application for review” (paragraph 30).
Is the Tribunal’s power under s. 41(2) limited to a consideration of what is necessary to secure the processes of the hearing and the processes of the determination?
This question has caused me some difficulty for there appears to be very little difference between the substantive provisions of the repealed s. 482(2) of the Act and s. 44A(2) of the AAT Act and yet the interpretations given to those sections are substantially different. In relation to s. 482(2), the Federal Court adopted a narrow interpretation in that it has limited itself to a consideration only of what is necessary to secure the processes of the hearing and the processes of the determination. In view of the fact that the language of s. 44A(2) similarly limits its discretion to making such orders as the Court “… considers appropriate for the purpose of securing the effectiveness of the hearing and the determination of the appeal”, it could be expected that the Federal Court would adopt the same interpretation. Yet it does not. The sample of cases to which I have referred illustrates that considerations such as whether there is a substantial question to be argued on appeal, the balance of convenience and whether or not an appeal would be rendered nugatory are relevant. They were clearly not considered relevant considerations under s. 482(2) but are, as Cooper J said in Broadbent v Civil Aviation Safety Authority, relevant considerations under the Federal Court’s general power to grant injunctive relief. They are also relevant considerations under s. 15 of the ADJR Act, which confers a broadly stated and unfettered power and so equates more closely with the Federal Court’s power to grant injunctive relief.
While the discretion given to the Tribunal by s. 41(2) is limited to its making an order that “…secures the effectiveness of the hearing and determination of the …” application and so mirrors the repealed s. 482(2) to that extent, the two sections are not mirror images of each other when read in their entirety. Section 482(2) did not direct the Court to have regard to any matters in exercising its discretion. It simply limited the orders that could be made as a result of the exercise of that discretion. By way of contrast, s. 41(2) directs the Tribunal to take “… into account the interests of any person who may be affected by the review …” and then permits it to make such order as it considers “desirable” while imposing a limitation upon the orders that it may make that is worded in the same terms as the limitation imposed by s. 482(2).
I consider that the variations between the two sections mean that the similarly worded limitations upon the orders that may be made should not be interpreted in the same way. The limitation in s. 41(2) should be read as it has been in numerous authorities over the years. I have referred to a sample of those authorities above. That is to say, it should not be given the narrow interpretation adopted by the Federal Court in the different context and wording of the repealed s. 482(2).. In reaching this conclusion, I regret that I must disagree with Deputy President Handley in Crossan and Minister for Immigration and Multicultural and Indigenous Affairs. To do otherwise, however, would be to ignore Parliament’s requirement that the interests of any person who may be affected by the review be taken into account. If, in making an order under s. 41(2), regard may only be had to what will secure the processes of the hearing and the processes of the determination, there can be no room to take the interests of other persons into account. The interests of persons affected by the review are likely to transcend matters relating to the processes of the hearing and those of determination. In a case seeking review of the cancellation of a pilot’s licence, for example, the interests of other persons affected by the decision and so by its review may include those of the airline or company employing that pilot. Where review is sought of the cancellation of a migration agent’s registration, the interests of the migration agent will also transcend those of process for the loss of his or her registration even in the short term may, in some cases, mean the effective loss of his or her business or livelihood. Regard can be had to the interests of persons affected by the decision only if the limitations upon the orders that the Tribunal may make are given the broader meaning as has traditionally occurred in the application of s. 41(2). That is to say, regard can be had if s. 41(2) is interpreted as permitting the Tribunal to make orders having regard not only to what is necessary to secure the processes of the hearing and determination but also to what is necessary to ensure that the review of the decision is not rendered nugatory or ineffective from the point of view of any person affected by the operation or implementation of the decision.
What matters should be taken into account in considering whether an order should be made under s. 41(2) in reviewing a decision to cancel a visa under s. 501?
In a case such as this, the persons whose interests may be affected include the applicant for review, members of his or her immediate family (particularly if they are dependant upon him or her), the Minister (as the person ultimately responsible for the administration of the Act) and members of the public whose safety may be in question.. The prospects of success of an applicant’s case are also relevant for it is difficult to argue that a decision need be stayed in order to secure the effectiveness of the hearing and determination of the application for review if the applicant’s case is entirely without objective merit.
Should an order be made under s. 41(2) in this case?
Mr Thapliyal submitted that procedural fairness had not been accorded to Mr Kurukkal by the delegate in making the decision. He pointed to the Procedures Advice Manual (“PAM”) as to the procedures that should have been followed. When asked to attend at the Department’s premises on 30 January, 2004, Mr Kurukkal was given no indication that his visa could be cancelled. He had a legitimate expectation that he would be given a further opportunity to present his case to the Department. In addition, the delegate had not given proper consideration to the interests of Mr Kurukkal’s daughter and had not known of the child who was born on 3 February, 2004.
Whatever breaches of procedural fairness there may have been, and I express no opinion on the issue, they are not relevant in this Tribunal even if they are such that the decision was not lawfully made. They are not relevant for, once a decision has been made that is within the Tribunal’s jurisdiction to review, the Tribunal reviews the decision afresh. As the Tribunal said in Re Costello and Secretary, Department of Transport (1979) 2 ALD 934:
“... in the exercise of our review function under s 43 of the Administrative Appeals Tribunal Act 1975 we stand in the shoes of the decision-maker and that the exercise of our review jurisdiction is the occasion of a fresh exercise of administrative power. ...” (at 943)
Section 43 states, in part, that "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 ...".. The Tribunal is necessarily subject to the same limitations as the decision-maker in the exercise of those powers and discretions unless the legislation provides otherwise.
Provided there is a decision that may be reviewed, any irregularities that have occurred in the making of the decision are irrelevant. This follows from the analysis of the majority of the Full Court of the Federal Court in Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 (Bowen CJ and Smithers J and Deane J, dissenting). In that case, the Full Court was concerned with a case in which a decision had been made to cancel a warehouse licence but there was no statutory power to make that decision. The majority held that the Tribunal had the power to entertain an application made to it to review such a decision. Bowen C.J. said:
“ In the Administrative Appeals Tribunal Act a wide meaning is given to the word ‘decision’ by s3(3). In s25 it appears to me that the word simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision. The difficulty lies in interpreting the words ‘made in the exercise of powers conferred by that enactment’. This may mean that it must be shown there was a decision made:-
(a) in pursuance of a legally effective exercise of powers conferred by the enactment; or
(b) in the honest belief that it was in the exercise of powers conferred by the enactment; or,
(c) in purported exercise of powers conferred by the enactment.
…
Interpretation (c) appears to me to be consistent with the context in the Administrative Appeals Tribunal Act. The Acts committed to the administration of each Minister and his Department are set forth in the Administrative Arrangements Orders published from time to time in the Gazette. There might be a rare case where a decision appeared to have no relationship to one of the Acts committed to the administration of the Minister or Department concerned. However, in the ordinary course, it would be reasonably clear from the objective facts under which enactment or in the exercise of which statutory powers an official had purported to act. The adoption of this view would mean that the Administrative Appeals Tribunal would have jurisdiction to entertain an appeal from a decision in fact made, which purported to be made in the exercise of powers under an enactment.. It could then proceed to determine whether the decision was properly made in fact and in law. There is nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal: see Calvin v. Carr (1979) 22 ALR 417. I would adopt interpretation (c).
...
Turning to the application of interpretation (c) to the present case, it appears to me that there was a decision to revoke the warehouse licence and this decision did purport to be made in the exercise of powers conferred by the Customs Act. Accordingly, in my view, the Administrative Appeals Tribunal did not lack jurisdiction to entertain the application and deal with it.” (pages 314-316)
Smithers J reached a conclusion similar to that of the Chief Justice and, in doing so, illustrated the practical consequences of the situation:
“ It is to be noted also that the subjects of reviews are decisions. If an administrator makes a particular decision in the course of government administration, then whether or not he is authorized to do so, there is in fact a decision made. The fact that that decision cannot affect legal rights or liabilities is irrelevant to that fact.
There is a distinction also between a decision, the steps that may be taken to implement it and the legal effect thereof. It does not appear to me to be sound to regard a decision to take certain action as a nullity because such action if taken will not be legally effective. In the case under appeal the letter of 31 October 1977 was the communication of the decision which the Collector had made. The decision preceded that letter. The letter was no doubt the act of purported revocation and because of the statutory definition of ‘decision’ (see s 3(3) of the Administrative Appeals Tribunal Act set out below) that act may be a decision within the meaning of s 25. But to decide to revoke the licence was also itself a decision according to the natural meaning of that term. Such a decision may have serious results for the citizen. No doubt the officers of the department will act upon it. Thus, after the decision in question had been made they would be expected to refuse to permit goods to be entered to the defendant's warehouse. In this case, also action was taken against the licensee under s 94 of the Customs Act. That action did not necessarily depend upon revocation but in all probability it would not have been taken had the decision to revoke the licence not been made. … (pages 335-336)
That brings me to Mr Thapliyal’s submissions regarding the merits of Mr Kurukkal’s case. He submitted that Mr Kurukkal does not fail the character test set out in s. 501 on the basis that he has a substantial criminal record as he does not have such a record as that expression is defined in ss. 501(1)(a) and (7).. Although time had not permitted him to prepare a full submission on the point, Mr Thapliayl submitted in outline that, as Mr Kurukkal’s terms of imprisonment had, in effect, been suspended, they did not come within the expression “term of imprisonment” as used in s. 501(7)(c). This is a submission that I considered in Re Damaskos and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 500. I considered the previous authorities and the history of the legislation in some detail and concluded that:
“ Bearing these matters in mind, it seems to me that I must look to the terms of imprisonment to which Mr Damaskos was sentenced rather than to the terms that he actually served. Sentences of imprisonment were actually imposed although, upon Mr Damaskos’s entering periods of probation, were never served. Despite his not having served them, he was, to use the words of Bowen CJ and Deane J in Drake, ‘… was under the composite sentence imposed, sentenced to a term of imprisonment …’ or two or more terms of imprisonment where the total of those terms is two years or more (page 68).” (paragraph 59)
In view of my conclusion, I do not consider that a submission that Mr Kurukkal does not have a substantial criminal record within the meaning of the Act would form part of an arguable case. He had a three year term of imprisonment and, on my previous analysis, it is not relevant that it was wholly suspended. Mr Kurukkal would fail the character test.
That is not an end of the matter, of course, for there remains the question of whether the discretion to cancel Mr Kurukkal’s visa should be exercised even though he failed the character test. In that regard, Mr Thapliyal submitted that Mr Kurukkal has more than a prima facie case that it should be exercised in his favour. Although he has been convicted of arson and it is a serious offence, Mr Kurukkal has otherwise lived here as a responsible member of the community. Judge O’Shea found that imprisoning Mr Kurukkal out of the community was not in the best interests of justice. Mr Thapliyal submitted that was the expectations of the Australian community do not require Mr Kurukkal to be removed from it and the best interests of his Australian born child do not require it. Life would be very difficult for him in Sri Lanka as a Hindu priest as his conviction would lead to his being regarded in a very poor light. Those difficulties would be visited upon his family as well.
Having regard to the material in the G documents, I consider that Mr Kurukkal’s case would be arguable. Again, I cannot go any further than this but that is sufficient for the purposes of this application. That brings me to the interests of the persons affected by the decision to cancel Mr Kurukkal’s visa. The first is obviously Mr Kurukkal. The cancellation has led to his being detained. I accept that, to date at least, his detention has not led to his being unable to give instructions to his solicitor. I do find, though, that it has led to his not being able to undertake his employment at Validek Enterprises. That has meant that he has not been able to contribute his net earnings of $179 each week to the maintenance of his family. Were the cancellation of his visa to be stayed and he were released from detention, his position at Validek Enterprises would still be available to him.
This is a matter that affects his interests but also those of his wife and daughters. Mr Kurukkal’s wife has not worked since she has been in Australia. Assuming for the moment that her visa permits her to work, she could not reasonably be expected to work at this stage since the birth of her younger daughter on 3 February, 2004. Mr Kurukkal said that he had no savings and no assets. His family lives in rented premises. He was not sure how his family was surviving without him. They are not entitled to receive any social security benefits. Mr Kurukkal also said that devotees only contributed to him if he participated in ceremonies but not otherwise. At the moment, his sponsor was helping a little and members of the community who had visited him since his detention had led him to understand that they would help a little.
Mr Thapliyal submitted that the effect of being deprived of Mr Kurukkal’s income would lead to Mrs Kurukkals’ being placed under such stress that she would not be able to give evidence at the hearing in support of her husband’s application for review. The evidence, however, does not support my making a finding to that effect. I accept that this is a very difficult time for the whole of the Kurukkal family. There will be emotional upset for its members but, on the evidence that I have been given, I am unable to find that it extends to Mrs Kurukkal’s being in such a state that she would be unable to give evidence so that the effectiveness of the hearing and the determination of the application for review would be prejudiced. There may be financial strictures that place her under emotional stress and prejudice her ability to give evidence but again I do not have sufficient evidence on which to make such a finding. Certainly, Mr Kurukkal’s income is not available to her but, on the issue of what assistance is available to her, Mr Kurukkal’s evidence was imprecise. In particular, I am not aware of what “little” assistance is being provided by the sponsor and by those members of the community who have offered assistance to Mr Kurukkal.
The other obvious persons whose interests are affected by the review are the Minister and the members of the Australian community. With regard to the latter, there is no evidence in the G documents that, apart from events occurring as a result of the arson, Mr Kurukkal’s behaviour has been a cause of concern. With regard to the administration of the Act and so to the Minister’s interests, there is nothing in the evidence that I have to suggest that Mr Kurukkal would attempt to go into hiding.
Having regard to all of these matters and on the material that I have to date, I have concluded that no order is required to secure the effectiveness of the hearing and the determination of the application for review. The actual processes of the hearing and the review will not be affected by the cancellation decision’s being permitted to operate. Assuming for the moment that Mr Kurukkal were successful in his application, his success would not be an empty victory and of no practical benefit to him. The effectiveness of the determination of the application will not therefore be compromised.
For these reasons, I:
1.refuse the applicant’s application for an order under s. 41(2) of the Administrative Appeals Tribunal Act 1975; and
2.give liberty to apply.
I certify that the forty-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: ................................................................
R. Crook Associate
Date of Hearing 10 February, 2004
Date of Decision 12 February, 2004Solicitor for the Applicant Mr A. Thapliyal
Challenge Legal, Lawyers and Consultants
Solicitor for the Respondent Mr J. Giacco
Australian Government Solicitor
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