Lam v Minister for Immigration
[2003] FMCA 345
•8 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAM v MINISTER FOR IMMIGRATION | [2003] FMCA 345 |
| MIGRATION – Review of Minister’s decision to cancel resident visa – where the Minister held that the applicant has a “substantial criminal record” – whether there was any jurisdictional error. |
Migration Act 1958 (Cth), s.501(2), (6)(a) and (7)(c)
Judiciary Act 1903 (Cth), s.39B
| Applicant: | LAM QUANG TONG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 739 of 2003 |
| Delivered on: | 8 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 8 August 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr M Wigney |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 739 of 2003
| LAM QUANG TONG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
On 12 November 2002 the Minister for Immigration & Multicultural & Indigenous Affairs exercised his discretion under s.501(2) of the Migration Act 1958 (“the Migration Act”). The Minister cancelled Mr Quang Lam's Resident Return visa which had been granted to him on 2 April 1977. Mr Lam had previously held a migrant visa K1B12 which he obtained on his arrival into Australia on 2 August 1990.
Section 501(2) of the Migration Act states that:
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.
Subsection 501(6)(a) of the Act provides that:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
Subsection 7(c) provides that:
For the purposes of the character test, the person is deemed to have a substantial criminal record if:
(c) the person has been sentenced to a term of imprisonment of 12 months or more.
On 20 December 2001 at the Liverpool Local Court, Mr Lam was sentenced to three periods of 12 months' imprisonment. He had also previously been convicted of a range of drug and theft related offences.
Acting upon this information the Minister determined that Mr Lam was deemed to have a substantial criminal record and not to pass the character test.
The Minister then considered whether or not he should exercise his discretion to cancel the visa and he did so by utilising General Direction No.21 – "direction under section 499 Visa Refusal and Cancellation under section 501 of the Migration Act" ("the direction"). The Minister is not bound to follow that Direction but it is his usual practice so to do. The Minister gave primary consideration to the protection of the Australian community including the risk of recidivism and the expectations of the Australian community. He then went on to consider other considerations in relation to Mr Lam.
The Minister noted that between 1995 and 2001 Mr Lam had been convicted of a range of serious offences, some of which were committed on a number of different occasions. He stated that he paid particular attention to those offences which attracted a sentence of 12 months or more. The Minister noted Mr Lam's repetitive conduct relating to the supplying of prohibited drugs. The Minister decided that the nature of Mr Lam's conduct and its affect on the community was such that he gave this consideration great weight, taking the view that the Australian community was entitled to protection from such conduct. The Minister considered the risk of recidivism and for the reasons given, assessed them as a continuing medium to high risk that Mr Lam might re-offend. The Minister gave consideration to the expectations of the Australian community. He stated that in view of the destruction to the lives of others caused by Mr Lam's offences, members of the Australian community would expect Mr Lam's visa to be cancelled and for him to be removed from Australia.
The Minister noted that there was no evidence that Mr Lam had any children so that he did not consider that the "best interests of the child" was a matter to take into account and he took the view that the other considerations were such as to require him to give them less weight.
In conclusion the Minister said:
[25] In reaching my decision I concluded that the nature and seriousness of Mr Lam's crimes, the risk of recidivism and the expectations of the Australian community, especially the need to protect the Australian community from such conduct outweighed all other considerations above.
[ 26] In the circumstances I exercised my discretion to cancel the visa under section 501 (2).
Mr Lam sought judicial review of the decision of the Minister by way of an application dated 2 May 2003. That application stated that as he was in Villawood Detention Centre he had been unable to get any legal help. It otherwise contained no grounds for bringing the application. Directions were made but they were not complied with by Mr Lam.
The matter came before me on 25 July 2003. Mr Lam appeared but he told me that he had not been able to obtain any legal advice in connection with his case as he was presently in custody. I adjourned the matter until today so that he could have the opportunity to do this but explained to him that if he was unable to obtain such advice then he would have to undertake the prosecution of his application himself. Mr Lam appeared today unrepresented. When asked whether he had anything to tell me as to why he believed the Minister had acted without jurisdiction in the manner in which he came to his conclusions Mr Lam said nothing.
I am satisfied that the applicant was afforded procedural fairness because he was given notice of the intention to cancel his visa and particulars of the information and the bases upon which the decision to cancel may be made. He was given the opportunity to comment. He chose not to do so.
Grounds for cancellation under s.501(2) clearly existed and the Minister has the power to make the decision. I am satisfied that the decision made was within jurisdiction and therefore there are no grounds under s.39B of the Judiciary Act 1903 which would entitle me to grant the applicant the relief, which I can infer from his making of an application and his presence in the court today, that he would seek.
I order that the application be dismissed and that the applicant pay the respondent's costs which I assess in the sum of $4,500 taking into account that this is the second hearing of the matter.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
0
0